Ryan v Bunnings Group Limited [2020] ACTSC 353

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: Ryan v Bunnings Group Limited; Ryan v Eastlake Football Club Limited; Ryan v O’Halloran & Ors; Ryan v Bhagria & Anor

Citation: [2020] ACTSC 353

Hearing Dates: 18-22, 25-27 February 2019; 29 July 2019-16 August 2019; 5-7 November 2019; 6 December 2019; and 17 February 2020.

Decision Date: 23 December 2020

Before: Loukas-Karlsson J

Decision: See [779]-[784].

Catchwords: TORTS – NEGLIGENCE – concurrent proceedings – where single plaintiff and multiple discrete causes of action – where credibility and reliability of plaintiff at issue – where plaintiff has lengthy and complex medical history – whether plaintiff was contributorily negligent – causation TORTS – FALSE IMPRISONMENT – whether cause of action is statute barred by s 435 of the Crimes Act 1900 – whether detention was lawful under s 218 of the Crimes Act 1900 - whether reasonable basis for detention TORTS – ASSAULT – whether alleged tortfeasor was acting in self-defence – causation DAMAGES – ASSESSMENT – general principles – aggravated and exemplary damages

Legislation Cited: Civil Law (Wrongs) Act 2002 (ACT) ss 42, 43, 44, 45, 46, 99, 100, 102, 168 Court Procedure Rules 2006 (ACT) rr 6, 1203, 1241 Crimes Act 1900 (ACT) ss 218, 435 Cases Cited: “B” v Reineker [2015] NSWSC 949 ACN 087528774 Pty Ltd (formerly Connex Trains Melbourne Pty Ltd) v Chetcuti [2008] VSCA 274 Alchin v State of New South Wales (Unreported, NSW District Court, Wass DCJ, 3 December 2018) Amaca v Latz [2017] SASCFC 145 Australian Capital Territory Schools Authority v El Sheik [2000] FCA 931 Beckett v State of New South Wales [2015] NSWSC 1017 Boughey v R (1986) 161 CLR 10 Briginshaw v Briginhaw (1938) 60 CLR 336 Brozinic v ISS Facility Services [2014] ACTSC 8 Brunoro v Nebelung [2017] ACTCA 26 Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104 Campbell v Campbell [2015] NSWSC 784 Cassell & Co Ltd v Broome [1972] AC 1027 Chapman v Hearse (1961) 106 CLR 112 Commercial Union v Ferrcom (1991) 22 NSWLR 389 Commonwealth of Australia v Marsh [2018] ACTSC 189 Commonwealth of Australia v McLean (1996) 41 NSWLR 389 Coote v Kelly; Northam v Kelly [2016] NSWSC 1447 Craig v Silverbrook [2013] NSWSC 1687 Cubillo v Commonwealth [2001] FCA 1213; 112 FCR 455 Darcy v New South Wales [2011] NSWCA 413 Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250 Director of Public Prosecutions (NSW) v Elskaf [2012] NSWSC 21 DNM Mining Pty Ltd v Barwick [2004] NSWCA 137 Eathan Cruse v State of Victoria [2019] VSC 574; 59 VR 241 Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; 161 ALR 599 Erlich v Leifer [2015] VSC 499 Evans v Braddock [2015] NSWSC 249 Falco v Aiyaz [2015] NSWCA 202; 71 MVR 454 Fernando v Commonwealth [2014] FCAFC 181; 231 FCR 251 Fontin v Katapodis (1962) 108 CLR 177 Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560 Goldie v Commonwealth of Australia (No 2) [2004] FCA 156 Graham v Baker (1961) 106 CLR 340 Gray v Motor Accident Commission (1998) 196 CLR 1 Haynes v Harwood (1936) 1 KP 46 Houda v State of New South Wales [2005] NSWSC 1053 Hutchinson v Fitzpatrick [2009] ACTSC 43 Insurance Office of NSW v Aboushadi [1999] NSWCA 396 Jones v Dunkel (1959) 101 CLR 298 Kalenik v Apostolidis & Ors [2009] VSC 208 Lamb v Cotogno (1987) 154 CLR 1 Lee v Kennedy [2000] NSWCA 153 Lewis v Australian Capital Territory [2018] ACTSC 19 Lule v State of NSW [2018] NSWCA 125 Maric v Nominal Defendant [2013] NSWCA 190 Maric v The Nominal Defendant [2012] NSWDC 69 Mason v Demasi [2009] NSWCA 227 McHale v Watson (1964) 111 CLR 384 Moon v Whitehead [2015] ACTCA 17 Morro & Ahadizad v ACT [2009] ACTSC 118 Morro v Australian Capital Territory [2009] ACTSC 118; 4 ACTLR 78 Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 502 New South Wales v Delly [2007] NSWCA 303 New South Wales v Ibbett [2006] HCA 5; 229 CLR 638 New South Wales v Koumdjiev [2005] NSWCA 247; 63 NSWLR 353 New South Wales v Quirk [2012] NSWCA 216 Noye v Robbins; Noye v Crimmins [2007] WASC 98 Nye v New South Wales [2003] NSWSC 1212 Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403 Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505 Petrovic v VWA [2018] VSCA 243 Presidential Security Services of Australia Pty Ltd v Clinton Joseph Brilley [2008] NSWCA 204; 73 NSWLR 241 Pulling v Yarra Ranges Shire Council [2018] VSC 248 Purkess v Crittenden (1965) 114 CLR 164 R v Katarzynski [2002] NSWSC 613 Re Kit Digital Australia Pty Ltd (in liq) [2014] ACTSC 1547 Ruddock v Taylor [2005] HCA 48; 222 CLR 612 Sangha v Baxter [2009] NSWCA 78; 52 MVR 492 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 South Australia v Lampard-Trevorrow [2010] SASC 56 State Government Insurance Commission v Oakley (1990) 10 MVR 570 State of New South Wales v Cuthbertson [2018] NSWCA 320 State of New South Wales v Riley [2003] NSWCA 208; 57 NSWLR 496 State of New South Wales v Zreika [2012] NSWCA 37 TD v New South Wales [2010] NSWSC 368 The Nominal Defendant v Cordin [2017] NSWCA 6; 79 MVR 210 The Queen v Phillips (1971) 45 ALJR 467 Toyota Finance Australia Limited v AJI Enterprise Group Pty Ltd [2019] NSWSC 33 Trobridge v Hardy (1955) 94 CLR 147 Tuggeranong Town Centre Pty Limited v Brenda Hungerford Pty Limited (No 2) [2017] ACTSC 88 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 Walter v Alltools Ltd (1944) 171 LT 71 Watson v Marshall and Cade (1971) 124 CLR 621 Watts v Rake (1960) 108 CLR 158 Whitehead v Moon [2013] ACTSC 243 Williams v Milotin (1957) 97 CLR 465 Zaravinos v New South Wales [2004] NSWCA 320

Texts Cited: Felicity Maher, ‘An Empirical Study of Exemplary Damages in Australia’ (2019) 43(2) Melbourne University Law Review CF Bond and BM DePaulo, ‘Accuracy of Deception Judgments’ (2006) 10 Personality and Social Psychology Review 214 Michael Green, ‘Credibility contests: the elephant in the room’ (2014) 18(1) International Journal of Evidence and Proof 28

Parties: Mark Ryan (Plaintiff) Bunnings Group Limited (Defendant in SC 268 of 2017) Jade O’Halloran (First Defendant in SC 312 of 2017) Stephen Cain (Second Defendant in SC 312 of 2017) Insurance Australia Limited t/as NRMA Insurance (Third Defendant in SC 312 of 2017) Eastlake Football Club Limited (Defendant in SC 267 of 2018) Tejinder Bhagria (First Defendant in SC 510 of 2018) AAI Limited t/as GIO (Second Defendant in SC 510 of 2018)

Representation: Counsel P Menzies QC with J Wilson and A Opas (Plaintiff) D Shillington (SC 268 of 2017) J Pappas (SC 312 of 2017) B Kelleher (SC 267 of 2017) S Onitiri (SC 510 of 2018) Solicitors Capital Lawyers and Legal on London (Plaintiff) Bradley Allen Love (Defendant in SC 268 of 2017) HWL Ebsworth (Defendants in SC 312 of 2017) Sparke Helmore (Defendant in SC 267 of 2017) Moray Agnew (Defendants in SC 510 of 2018)

File Numbers: SC 268 of 2017; SC 267 of 2017; SC 312 of 2017; SC 510 of 2018

CONTENTS

Introduction 6 Background of the Plaintiff 7 Agreed Statement of Issues 8 Earlier Medical Reports 9 Credit and Reliability of the Plaintiff 9 Defendants’ Submissions on Credit and Reliability 9 Plaintiff’s Submissions on Credit and Reliability 11 Consideration 12 Contradictory evidence from another witness: MVA 2 (2015) 15 Contradictory evidence from another witness: MVA 1 (2013) 15 Contradictory evidence from another witness: The Bunnings Incident 16 Contradictory evidence from contemporaneous documents 16 Conclusion – Credit and Reliability of the Plaintiff 19 Principles Relating to the Assessment of Damages 20 Plaintiff’s Submissions 20 Principles of Apportionment 23 Evidence 23 Legislation 23

The Bunnings Incident Introduction 25 Medical Baseline 26 Evidence 26 Lay Evidence 26 CCTV Footage 28 Expert Evidence – the Bunnings Incident 29 Submissions of the Plaintiff 34 Breach of Duty of Care 34 Contributory Negligence 35 Causation of Injuries 35 Submissions of Bunnings 36 Breach of the Duty of Care 36 Contributory Negligence 37 Causation of Injuries 37 Submissions in Reply 40 Consideration: The Bunnings Incident 41 Factual Findings 41 Consideration on Liability 41 Damages: The Bunnings Incident 42

Motor Vehicle Accident 1 (MVA 1 – 2013) Introduction 42 Medical Baseline 43 Evidence 43 Lay Evidence 43 Expert Evidence – MVA 1 45 Submissions of the Plaintiff 50 Submissions of the NRMA Defendants 51 Injuries 52 Medical Evidence 53 Assessment of Damages 53 Submissions in Reply 53 Consideration: MVA 1 (2013) 53 Factual Findings 53 Consideration on Liability 54 Damages: MVA 1 (2013) 54 Submissions 54 Determination 54

The Eastlake Incident Introduction 55 Medical Baseline 56 Evidence 57 Lay Evidence 57 CCTV Footage 62 Expert Evidence – the Eastlake Incident 63 Submissions of the Plaintiff 71 False Imprisonment 71 Assault 71 Medical Treatment 72 Submissions of Eastlake 72 False Imprisonment 72 Assault 73 Medical Evidence 74 Submissions in Reply 75 Consideration: The Eastlake Incident 76 Relevant Legal Principles: Intentional Torts 76 Factual Findings 77 Sections 435 and 218 of the Crimes Act 79 Factual findings as to injuries said to have been caused by the 79 Eastlake Incident Damages: The Eastlake Incident 80 Submissions of Eastlake 80 Plaintiff’s List of Cases 82 Defendant’s List of Cases 85 Further Submissions of Eastlake 90 Submissions in Reply 92 Conclusion on Consideration 92 False Imprisonment 93 Battery/Assault 93 Economic Loss 93 Aggravated Damages 93 Exemplary Damages 94 Determination 95

Motor Vehicle Accident – MVA 2 (2015) Introduction 95 Medical Baseline 96 Evidence 96 Lay Evidence 96 Expert Evidence – MVA 2 98 Submissions of the Plaintiff 100 Submissions of the NRMA Defendants 100 Diplopia 100 Medical Evidence 101 Submissions in Reply 101 Consideration: MVA 2 (2015) 102 Factual Findings 102 Conclusion on Liability 102

Motor Vehicle Accident 3 (MVA 3 – 2018) Introduction 103 Medical Baseline 104 Evidence 105 Lay Evidence 105 Expert Evidence – MVA 3 105 Submissions of the Plaintiff 109 Submissions of the GIO Defendants 110 Submissions in Reply 111 Consideration: MVA 3 (2018) 112 Factual Findings 112 Conclusion on Liability 113 Damages: MVA 3 113 Griffiths v Kerkemeyer 113 Evidence of the Plaintiff 114 Evidence of Ms Mary Southorn 115 Submissions of the Plaintiff – Griffiths Damages 116 Submissions of Eastlake – Griffiths Damages 116 Submissions of the GIO Defendants – Griffiths Damages 117 Consideration – Griffiths Damages 117 Ruling on the Evidence of Dr Michael Delaney 118 An Additional Matter 119 Orders 121

LOUKAS-KARLSSON J

Introduction

1. This case arises out of several claims brought against multiple defendants by a single plaintiff, Mr Mark Ryan (the plaintiff). In brief summary, the relevant incidents, in chronological order, are as follows:

(a) On 18 January 2012, the plaintiff entered the Bunnings store in Fyshwick and an employee’s arm made contact with his face (the Bunnings Incident);

(b) On 20 December 2013, the plaintiff was involved in a motor vehicle accident when his vehicle was struck on the left side at a roundabout on Canberra Avenue (Motor Vehicle Accident 1 – MVA 1); (c) On 15 February 2014, the plaintiff was involved in an incident where it is alleged he was falsely imprisoned and assaulted at Eastlake Football Club (the Eastlake Incident);

(d) On 31 August 2015, the plaintiff was involved in a motor vehicle accident when his parked car was struck from behind (Motor Vehicle Accident 2 – MVA 2);

(e) On 25 January 2018, the plaintiff was involved in a motor vehicle accident when his car, stationary at the intersection of Coranderrk Street and Parkes Way, was struck from behind (Motor Vehicle Accident 3 – MVA 3).

2. In respect of each incident outlined above, the plaintiff initiated proceedings against the following defendants:

(a) Bunnings Incident (SC 268 of 2017): Bunnings Group Limited (Bunnings);

(b) MVA 1 (2013) and MVA 2 (2015) (SC 312 of 2017): Ms Jade O’Halloran (First Defendant), Stephen Cain (Second Defendant) and Insurance Australia Limited trading as NRMA Insurance (Third Defendant) (the NRMA defendants).

(c) Eastlake Incident (SC 267 of 2017): Eastlake Football Club Limited (Eastlake);

(d) MVA 3 (2018) (SC 510 of 2018): Mr Tejinder Bhagria (First Defendant) and AAI Limited trading as GIO (Second Defendant) (the GIO defendants).

3. On 31 January 2019, by consent, I made orders that the matters were to be heard concurrently and sequentially and that evidence in one matter was to be evidence in all matters.

Background of the Plaintiff

4. The plaintiff was born in 1956. After graduating from High School, the plaintiff completed a five year chiropractic course in Melbourne. In approximately 1982, he began his own chiropractic business.

5. In approximately 1993, the plaintiff met Ms Mary Southorn and they subsequently commenced a relationship (T 956). That relationship continued until 2014. For a number of years, the plaintiff ran his chiropractic business from a room in the house in which he and Ms Southorn cohabited.

6. In 2004, the plaintiff purchased a nightclub, Sultan’s Nightclub, and a restaurant, Sultan’s Restaurant. He gave evidence he was the sole director of the two companies running those establishments and was, for certain periods, an employee (T 52.15-33). The nightclub and restaurant closed in August 2014 (T 140.5).

7. It was accepted by the plaintiff in his oral evidence that in 2014, the plaintiff was sued by the landlord for the nightclub premises, and the plaintiff mounted an unsuccessful counterclaim. Following this, a petition in bankruptcy was put forward by the landlord seeking to recover rent and ancillary costs (T 620). In June 2016, the plaintiff voluntarily entered bankruptcy (T 139.47).

8. The evidence before the Court indicates the plaintiff has a lengthy and complex history of injuries and conditions dating back to at least 1992. The nature of the medical history of the plaintiff is such that the NRMA defendants submitted: It is unlikely that this court has ever been asked to deal with a claim for damages against a background of so many earlier accidents resulting in injury and disability as well as earlier claims for damages.

Agreed Statement of Issues

It was agreed by the parties and documented in the Statement of Issues dated 19 9. February 2019 that the relevant issues for determination in respect of the concurrent proceedings were as follows:

(a) In relation to each of the incidents outlined in [1] above:

i. The circumstances, nature and severity of the collision/incident;

ii. Whether the plaintiff suffered any, and if so, what, injuries in consequence of the collision/incident;

iii. The state of the plaintiff’s health and his numerous disabilities prior to the subject accident/incident and whether any pre-existing medical condition was aggravated, or any new disability emerged, or any disability increased, in consequence of the accident/incident;

iv. The degree to which the plaintiff required assistance in the nature of Griffiths v Kerkemeyer (1977) 139 CLR 161 (Griffiths) assistance prior to the accident/incident and the extent to which, if at all, the need for such assistance increased after the accident/incident;

v. The state of the plaintiff’s earning capacity as a chiropractor; as a proprietor of restaurants and nightclubs and generally, prior to the subject accident, and whether his earning capacity in any respect was diminished in consequence of injuries suffered in, or disabilities arising from, the accident;

vi. Whether the plaintiff has falsely represented, over a period of years, the state of his health, his work capacity, his income and the circumstances surrounding a diminution in his earning capacity;

vii. Whether doctors who have treated the plaintiff or proffered medico-legal opinions have been misled by the plaintiff, both as to matters of factual and medical history and any expressed expert opinions have been tarnished or devalued thereby; and

viii. The plaintiff’s truthfulness and reliability both as a witness and as an historian.

(b) In relation to the Bunnings Incident:

i. Whether the defendant was negligent in breaching any owed duty of care to the plaintiff; and

ii. Whether the plaintiff was contributorily negligent by his conduct in the said incident and, if so, the degree of apportionment applicable to the plaintiff’s own negligence.

(c) In relation to the Eastlake Incident:

i. Whether the plaintiff was wrongly arrested or imprisoned; and ii. Whether the plaintiff was assaulted or whether the actions of the defendant’s employee were in self-defence.

(d) In relation to MVA 2 (2015):

i. Whether the nature of the collision was such as to cause any injury; and

ii. Whether the plaintiff suffered any injury, aggravation of injury or aggravation of claimed disability in consequence of the collision.

(e) In relation to MVA 3 (2018):

i. Whether plaintiff was contributorily negligent by his conduct in the said accident, and, if so, the degree of apportionment applicable to the plaintiff’s own negligence; and

ii. If the plaintiff did fall from a ladder on 8 February 2018 as alleged, whether any injuries and/disabilities attributable to the 25 January 2018 motor vehicle accident caused the fall.

(f) The plaintiff claims damages in relation to all accidents, and putting liability and credibility issues to one side, all aspects of quantum are in issue.

Earlier Medical Reports

10. The Defendant’s Tender Bundle (Ex. 5) contained extensive medical reports for the plaintiff dating back to 1999, including reports prepared in relation to other legal proceedings. In respect of the reports that were unrelated to the current proceedings, the parties agreed that they would not be relied upon to advance any opinions contained therein. Rather, they would be relied upon for purposes of credit only (T 236). The reports subject to this caveat were identified in MFI 2 and highlighted in yellow.

Credit and Reliability of the Plaintiff

11. The defendants in these proceedings have taken issue with the credit and reliability of the plaintiff as a witness, including extensive submissions as to demeanour.

Defendants’ Submissions on Credit and Reliability

12. In written submissions, Bunnings characterised the plaintiff as an unreliable and “less than forthright witness” who consistently answered questions in an evasive manner: at [10] and [129].

13. Similarly, the NRMA defendants submitted the plaintiff’s evidence was “non-responsive, calculating and cagey and, in many other respects, he was a difficult and an unreliable witness”. Their submissions describe the plaintiff as acting as an “advocate” and submitted the analysis of his evidence would be a task “fraught with difficulty and one which commends the sharpest degree of judicial diligence in analysing what the plaintiff actually said in his evidence”: at [5]-[8]. A number of examples from the transcript said to illustrate the plaintiff’s unreliability were extracted in written submissions ([79] ff), including:

(a) Vague and evasive answers regarding the particulars of the alleged domestic assistance received and allegedly “feigned” lack of understanding about that head of damage; (b) Evasive answers regarding the obligation of telling the truth to doctors in preparation for his case;

(c) A “bizarre” explanation for his need to wear an eyepatch and darkened glasses to assist with pain and concentration, which was not repeated on any subsequent day of trial;

(d) His evidence that Ms Southorn could speak to the level of domestic assistance and that he asked Ms Southorn to write down the details, but that they did not discuss the detail;

(e) The plaintiff “pretending” only to be able to answer a question without interrupting if counsel used words to the effect of “end of question”;

(f) His “evasive” answer to a question about why he did not correct Dr Griffith’s report with respect to pre-existing diplopia;

(g) The plaintiff’s “attack” on the report of Dr Harrison, where, in the NRMA defendants’ submission, it was unfavourable to him;

(h) His evidence that it was his memory and concentration that caused him to stop work as a chiropractor; and

(i) His denial in oral evidence of his own conduct following the fall he suffered in February 2018.

14. Each of the above examples was supported by references to the transcript. It was further submitted that there was no medical evidence which sufficiently explains the plaintiff’s behaviour in the course of giving evidence: at [67]-[69].

15. Additionally, the NRMA defendants, in written submissions, submitted that the plaintiff was untruthful. Reliance was placed on an instance in which the plaintiff “attempted to explain away” material in a Motor Accident Notification Form (Ex. 14) by stating that he had signed the form prior to it being filled out, at the invitation of his then solicitor: at [214]. The NRMA defendants further relied on the plaintiff’s evidence that, following a fall on 11 May 2019, he presented to the Canberra Hospital emergency department where he filled out a document styled “Territory Wide Assessment”, which was later read and accepted by a doctor: at [221]-[226]. The evidence of two staff from the hospital was that a patient would not have been provided with such a form: at [228]- [232]. The NRMA defendants submitted that these particular instances also have “clear and significant probative value on the question of Mr Ryan’s credit and his reliability generally”: at [233].

16. Overall, the NRMA defendants submitted that the plaintiff was an “opportunistic, obsessive, over-reaching, perennial claimant”: at [48].

17. Eastlake submitted that the plaintiff lacked any credibility as a witness and suggested the plaintiff had provided “deliberately incorrect or inconsistent versions” of events and that the plaintiff had lied, or omitted the full truth, about the alleged injuries and pre-existing conditions. Eastlake’s written submissions concluded that, as a witness, the plaintiff was “evasive, dogmatic and uncooperative… [he was] not prepared to make any concession he thought might affect his case”: at [6]. In this respect, I was referred to the principled approach to the assessment of credibility discussed in The Nominal Defendant v Cordin [2017] NSWCA 6; 79 MVR 210 (Cordin).

18. In support of their submissions, Eastlake identified a number of examples said to demonstrate the plaintiff’s lack of credibility, including the following:

(a) The plaintiff gave inconsistent answers in oral evidence and to various doctors as to how long he ceased working as a chiropractor following the Eastlake Incident, ranging from 2 weeks, to 18 months, to a complete cessation: at [182]- [203].

(b) The Business Activity Statements (BAS) for the plaintiff’s chiropractic business demonstrate that the first three quarters of 2014 were the best quarters for gross income for the period of 1 July 2012 to 30 June 2016, in direct contradiction with the plaintiff’s sworn evidence about cessation of work following the Eastlake Incident: at [204]-[218].

(c) The plaintiff provided false information to the Trustee in Bankruptcy as to the date when he ceased working and his rental expenses: at [219]-[231].

(d) The plaintiff’s oral evidence that memory issues and consequential depression only arose after the Eastlake Incident is inconsistent with the evidence, including his own previous accounts: at [232]-[240].

(e) Allegations that the plaintiff was able to work fulltime as a chiropractor prior to these incidents are contradicted by various medical reports, undermining the histories provided to medical experts in the plaintiff’s case: at [241]-[275].

19. The written submissions of the GIO defendants similarly described the plaintiff as an unreliable, evasive, argumentative and unresponsive witness, and even where that was not the case, it was submitted he was a generally poor historian: at [9]-[15]. Examples were again provided: at [10]-[11]. It was submitted that to alternatively rely upon histories provided in medico-legal reports would be “fraught with danger” and submitted, at [17], that the utility of such evidence should be:

[L]imited to the degree to which it tends to corroborate or contradict the evidence given by the plaintiff under oath and, to whatever extent is does, it either adds or detracts from the weight to be given to the plaintiff’s oral testimony. Such histories cannot be cherrypicked to supplant gaps in the plaintiff’s testimony and expert evidence.

Plaintiff’s Submissions on Credit and Reliability

20. It was accepted in the plaintiff’s submissions that the plaintiff’s credit has been made central to the resolution of these matters: at [3]. The plaintiff submitted, however, that inhibited cognitive and memory functions necessarily make the plaintiff a poor historian and that a history of past claims should not, in and of itself, undermine the plaintiff’s credibility. By contrast to the submissions of the defendants, the plaintiff’s submissions characterised the oral testimony of the plaintiff as “obsessive” in seeking to answer and understand questions; as attempting to assist the court and answer honestly; and as attempting to utilise his own medical knowledge to correct and question medical reports in order to clarify rather than be dishonest: at [7] and T 1701.6-22.

Consideration

Demeanour

21. On the question of demeanour and credibility, the High Court recognised in Fox v Percy [2003] HCA 22; 214 CLR 118 (Fox v Percy) that there is a body of research that casts doubt on the ability of judges to make credibility findings based on demeanour. The High Court stated at [31]:

Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events.

22. More recent research underscores the point made in Fox v Percy: see CF Bond and BM DePaulo, ‘Accuracy of Deception Judgments’ (2006) 10 Personality and Social Psychology Review 214 and Michael Green, ‘Credibility contests: the elephant in the room’ (2014) 18(1) International Journal of Evidence and Proof 28.

23. In Craig v Silverbrook [2013] NSWSC 1687 at [140]-[142], Sackar J made a number of apposite observations in relation to demeanour. These observations included that the assessment of demeanour is a crude methodology and that, nevertheless, where a trial judge is faced with a stark choice between irreconcilable accounts, the assessment of credibility is of importance:

Whilst a trial judge is entitled to make observations relating to the demeanour of certain witnesses, it is a notoriously crude and inaccurate methodology. Its defects have been exposed on numerous occasions. In that regard, I am of course mindful of the comments of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at ([30]-[31]) when they remarked (citations omitted): It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Societe d’Avances Commerciales (Societe Anonyme Egyptienne) v Merchant Marine Insurance Co (The “Palitana”): “… I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.”

…

In the recent decision of McGraddie v McGraddie and another [2013] UKSC 58; [2013] 1 WLR 2477, the UK Supreme Court emphasised that, especially in cases where a trial judge is faced with a stark choice between irreconcilable accounts, the credibility of the parties’ testimony, and the trial judge’s assessment of the character of witnesses and the manner in which the witnesses give evidence, is of primary importance. Those observations are particularly relevant in the present case. Similar observations have been made in Australian authorities (Fox v Percy at [23]; Rosenburg v Percival [2001] HCA 18; (2001) 205 CLR 434 at [41] per McHugh J and see generally comments in Ritchie’s Uniform Civil Procedure NSW at SCA s 75A.20).

24. Further, in Cordin, Davies J discussed a number of authorities in relation to credibility, including Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403; Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560; Campbell v Campbell [2015] NSWSC 784; Watson v Foxman (1995) 49 NSWLR 315; Camden v McKenzie [2008] 1 Qd R 39; and NSW v Hunt (2014) 86 NSWLR 226.

25. Relevantly, Hallen J in Evans v Braddock [2015] NSWSC 249 stated at [73]: The credibility of a witness and his, or her, veracity, may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas S.A. (The “Ocean Frost”) [1985] 1 Lloyd’s Rep 1, per Robert Goff LJ, at 57. Also see, In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547, per Black J, at [7].

26. Thus, it is abundantly clear from the authorities that the assessment of demeanour has its limitations and that credibility may be more accurately tested by reference to objective facts, motive, and overall probabilities.

Medical Evidence

27. A judge must not disregard reliable medical evidence due to concerns about the plaintiff’s credibility. The case must be decided on the whole of the evidence, including objective evidence of diagnostic tests which are unaffected by the plaintiff’s credit: see Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104 at [49]; Petrovic v VWA [2018] VSCA 243 at [76]; and Pulling v Yarra Ranges Shire Council [2018] VSC 248 at [51].

28. Additionally, in a broadly similar vein, in personal injury cases, the comments of Basten JA in Mason v Demasi [2009] NSWCA 227 at [2]-[4] are relevant:

First, the trial judge was invited to discount the appellant’s oral testimony on the basis of accounts given to various health professionals, which appeared inconsistent either with each other, or with her oral testimony, or both. The difficulties attending this kind of exercise should be well-understood; as explained in the Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8]. Such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others: (a) the health professional who took the history has not been cross-examined about: i. the circumstances of the consultation; ii. the manner in which the history was obtained; iii. the period of time devoted to that exercise, and iv. the accuracy of the recording; (b) the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings; (c) the record did not identify any questions which may have elucidated replies; (d) the record is likely to be a summary prepared by a health professional, rather than a verbatim recording; and (e) a range of factors, including fluency in English, the professional’s knowledge of background circumstances of the incident and the patient’s understanding of the purpose of the question, which will each affect the content of the history. The fact that, in the present case, none of the health professionals was called to give oral evidence as to the matters in issue may not itself be a point of significance. It is unlikely that cross-examination would have advanced any issue in dispute; the witness being likely to have no relevant recollection of taking the history, the oral testimony would be largely limited to an assertion of usual practice. Thirdly, and more significantly, it was quite possible that the elements of florid expression and exaggeration in the applicant’s oral testimony (and in some of the recorded histories) may have been a function of her psychological state. This was not something that the trial judge could readily assess without expert assistance, but it was a possibility that should not have been ignored. On one view, the pre-attack records (particularly the notes of Dr Hamad) were devoid of the flamboyant language found in post-attack accounts.

29. Thus, it is also clear from the authorities that drawing conclusions from inconsistencies in accounts as between health professionals and a plaintiff’s testimony should be approached with caution.

Approach to be Adopted

30. Relevantly, in Director of Public Prosecutions (NSW) v Elskaf [2012] NSWSC 21, Garling J outlined at [60]-[61] the following considerations with respect to the assessment of a witness’s credibility:

It is necessary for a judicial officer to explain why he or she has found the evidence of a witness to be unacceptable. The possible bases for such a finding would include (but are not limited to): (a) contradictory evidence of the same events or incidents from another witness; (b) contradictory evidence from contemporaneous documents; (c) inconsistencies or contradictions within a witness' own evidence; (d) the demeanour of a witness, including the manner of giving evidence; and (e) evidence of conduct or behaviour which is inconsistent with mandatory practices of police officers, or else those practices which are regularly followed by police officers. A party who has called evidence from a witness, which is relevant and apparently probative, and whose evidence is not accepted is entitled to know of the basis of that non-acceptance, in order, at least, to be able to assess the prospect of a successful appeal.

31. It is important at this juncture that I make it clear that my view of the plaintiff’s credibility is not based on his demeanour. Nor is my view based on the history of past claims. Nor is my view of his credibility based on poor historianship.

32. It is self-evident that a history of past claims does not undermine the plaintiff’s credibility; so much was expressly conceded, or not cavilled with, by the various defendants (T 1669.18-20 and 1716.35-45). Nor do I assume that a poor historian is for that reason alone not entitled to be believed. I have had regard to the psychiatric evidence in relation to depression, cognitive ability, and memory. A poor historian is not necessarily a dishonest historian.

33. My adverse view of the plaintiff’s credibility is based on the following:

(a) contradictory evidence of the same events from another witness, specifically three separate witnesses in relation to three separate events; and

(b) contradictory evidence from contemporaneous documents.

34. I will deal immediately below with the contradictory evidence of the same events from another witness, in relation to three separate events in reverse chronological order. I will deal with contradictory evidence from contemporaneous documents immediately thereafter. Where inconsistencies and contradictions within the plaintiff’s own evidence are apparent, such inconsistencies will be dealt with, where relevant, in relation to each separate incident.

Contradictory evidence from another witness: MVA 2 (2015)

35. With respect to the MVA 2, I prefer the evidence of Mr Stephen Cain to the evidence of the plaintiff. In my view, the defendant, Mr Cain, gave straightforward, clear, and precise evidence and was not shaken under cross-examination. Mr Cain’s evidence was of an insignificant degree of contact between his vehicle and the plaintiff’s vehicle while parking. The plaintiff asserted that he had been “slammed into” (T 1121.41-43). Mr Cain noted while inspecting his vehicle that his number plate must have come into contact with the plaintiff’s towbar. Mr Cain stated that there was “no damage to either vehicle” (T 1122.15-21 and T 1123.36-43). He was troubled by the plaintiff’s statement in response: “this is to be determined” (T 1122.15-21). He was concerned that “there was something bizarre about the incident” (T 1123.45-46). Such was his concern that he lodged a police report about the incident. That police report was Exhibit 49 in the proceedings; it includes the following:

I was edging in a forward direction behind vehicle 2 which was parked in the forward of 2 car spaces. As I edged up closer ready to reverse I sensed a slight resistance and thought it must have been my front wheel bumping a brick or debris on the road as I felt I was still well clear of the parked vehicle. Once parked I saw that the parked vehicle had a massive hayman reese type towbar but there was no damage or noticeable mark on the towbar and only a small dent the size of a 20 cent coin in my vehicle’s number plate. The driver of the parked vehicle and I exchanged details and I wouldn’t have even thought necessary to report the incident except I was concerned over the other driver’s behaviour. While he wasn’t aggressive, he was agitated and even though obvious the contact had caused no damage to his vehicle emphasised that would need to be determined and that he was concerned over an existing neck injury. I should give him the benefit of doubt and possibly the agitation was nothing but would hate to think [there was] a view to file a compensation claim as that would seem opportunist at best. (Emphasis added).

36. The submission made by counsel for the NRMA defendants at [194] was as follows:

When the narrative composed by Mr Cain, concerning the circumstances of the accident as reported to police, is read in its entirety, it is impossible not to gain the impression that Mr Cain, an honest, upstanding member of the community, was fearful that he had encountered a charlatan who was prepared to make a false claim for damages in circumstances where no conceivable damage to him could have been caused and no damage to his vehicle was caused.

37. I accept on the balance of probabilities the evidence of Mr Cain that the accident occurred in the manner he described in his evidence. It follows that I am satisfied that the account given by the plaintiff is not correct and not reliable.

Contradictory evidence from another witness: MVA 1 (2013)

38. With respect to the first car accident, I prefer the evidence of Ms Jade O’Halloran to that of the plaintiff. In my view, Ms O’Halloran gave clear and straightforward evidence and was not shaken to any significant extent under cross-examination. I reject the plaintiff’s submissions in relation to her evidence. The plaintiff gave evidence that Ms O’Halloran made a statement admitting liability immediately following the accident (T 495.5-8):

Yes. Well not word-for-word, but she, basically, said she was sorry. She had a lot of motor vehicle accidents in the past and she was just distracted by the car accident to her left and apologised.

39. Ms O’Halloran denied making such a statement. I accept Ms O’Halloran’s denial. I do not accept the veracity of the plaintiff’s statement in that regard. Ms O’Halloran stated that she suffered no injury (T 1099) and that the collision was minor (T 1098). She further stated that she had not previously been involved in a motor vehicle collision (T1097). Ms O’Halloran gave evidence that she did not tell the plaintiff that the accident was her fault. Ms O’Halloran additionally gave evidence that she did not tell the plaintiff that the accident was one of a number of accidents she had been involved in (T1101).

40. I accept on the balance of probabilities the evidence of Ms O’Halloran that the accident occurred in the manner she described in her evidence. I accept Ms O’Halloran’s version of the conversations. It follows that I am satisfied that the account given by the plaintiff as to the accident and the conversations is not correct and not reliable.

Contradictory evidence from another witness: The Bunnings Incident (2012)

41. With respect to the Bunnings incident, Ms Schramm, an employee of Bunnings, gave evidence that she was standing to the side of the “people greeter”, Ms Westlin, when Ms Schramm gestured to the air conditioner and remembered “feeling the brush of something and then seeing a gentleman grab his nose” (T 1077.38-39).

42. The plaintiff gave evidence: “so then I went through the second door and I turned immediately to my right, and I got smacked in the face” (T 57.33-35).

43. I accept the evidence of Ms Schramm that the contact was in the nature of a “brush of something” (T 1077.39). I do not accept that the plaintiff was “smacked in the face” (T 57.35). I prefer the evidence of Ms Schramm to the evidence of the plaintiff. Ms Schramm gave straightforward, clear, and precise evidence and was not shaken in cross-examination.

44. I accept on the balance of probabilities the evidence of Ms Schramm that the incident occurred in the manner she described in her evidence. It follows that I am satisfied that the account given by the plaintiff is not correct and not reliable. I am satisfied that the contact was in the nature of being a “brush” (T 1077.39) and not a “smack”, as asserted by the plaintiff (T 57.35).

Contradictory evidence from contemporaneous documents

45. In examining the credibility of the plaintiff, his evidence that the Eastlake Incident caused him to develop memory and concentration problems which caused him to stop working as a chiropractor must be contrasted with contemporaneous BAS records.

46. The plaintiff, in evidence in chief, asserted that following the Eastlake Incident: “my memory just lost it” (T 41.07); “my memory/concentration just went out the window. I just couldn’t remember things”; and “I stopped treating people” (T 112.26-37). When asked what had happened since the onset of that condition, he stated “I don’t practice anymore” (T 112.40). When further questions were asked in chief about his capacity to work after the Eastlake Incident, he said in unequivocal terms: “My capacity to work stopped … I had no capacity to work … Because I couldn’t remember what I was talking about” (T 113.40-45). There was no qualification in this evidence about his capacity to work as a chiropractor.

47. In cross-examination, the plaintiff initially confirmed that it was his evidence that he had stopped work after the Eastlake Incident and that he initially answered this was within two weeks but immediately qualified that to within “a short period of time that followed” (T 554.06-23).

48. The plaintiff filled out a claim form on 11 June 2014, some five months after the Eastlake Incident, in respect of the motor vehicle accident of 20 December 2013 (MVA 1). In that signed document, the plaintiff claimed he had stopped working two weeks after the Eastlake Incident on 26 February 2014 (Ex. 16).

49. In that document, the plaintiff answered a question in respect of self-employment at 5.9.1 noting that he was working for City First Chiropractic Centre. At question 5.10 he gave the following answer:

Have not attended work since approx. 26 Feb 2014. Lost approx. $1,153 for every week off work – NB this amount is an estimate and does not include lost income from other jobs.

50. In the following question, 5.11, the plaintiff ticked the box for no in response to ‘Is the business still operating?’.

51. The plaintiff was cross-examined on the claim form at T 571.25 and following. He agreed that what was written there was what he had told his solicitors (T 572.17). He agreed that he had told his solicitors in the completion of that form that he had not worked since approximately 26 February 2014 and that he had signed the document.

52. On 12 August 2015, the plaintiff’s general practitioner, Dr John Broderick of Phillip Medical Centre recorded that the plaintiff told him he had “not worked for 18 months” (Ex. 52 p. 251).

53. Additionally, the plaintiff relied on a series of reports from Dr Le Leu. At page 17 of Dr Le Leu’s report dated 17 October 2016 (Ex. 51 p. 69), the following history as provided by the plaintiff is recorded:

He was still working after the December 2013 MVA, but after the Eastlake Club assault he completely stopped work, he had effectively stopped working several months before the car accident below. The main things stopping him from working were poor concentration, his memory which had “gone out the window” and the neck.

54. The plaintiff was cross-examined about that history at T 617.

55. The plaintiff saw Dr Saboisky, a medico-legal psychiatrist retained by Eastlake. Dr Saboisky’s report is dated 22 August 2017 (Ex. 5 p. 354) and contains the following:

He [the plaintiff] said that the pain has caused sleep problems and also weakness in his hands so that he cannot work. Two weeks after the event [the Eastlake Incident] he said, “I couldn’t remember anything” and he was unable to work. He could not work out factors so that he could arrange x-rays. He said the depression started then.

56. The plaintiff told Dr McDonald, an orthopaedic surgeon retained on behalf of Eastlake, in a report dated 24 August 2017 that, after the Eastlake Incident, he stopped working for approximately 18 months as a chiropractor (Ex. 5 p. 360).

57. The plaintiff tendered reports from Dr David Gorman, an occupational specialist. Dr Gorman was told by the plaintiff, via a corrective letter, that the plaintiff “has not worked since 2014” (Ex. 51 p. 103).

58. The plaintiff was cross-examined about his history given to Dr Gorman at T 558.24 and he agreed that he had asked for items in Dr Gorman’s report of 19 September 2017 to be changed. One change involved altering “Our client has not worked since 2014 with any substance” (which he initially said was correct) to “Mr Ryan has not worked since 2014”.

59. The plaintiff initially denied changing the version of events. He then agreed that the changes made by Dr Gorman were made on his instructions to his solicitors (T 559.19) but qualified his concession by stating he “tried to do something, I had to have some money from somewhere”. He then confirmed that he did cease working in the night club in 2014. At T 559.35, the plaintiff made the following statement: “Well, my tax returns would show what I did and what I didn’t do”.

60. The plaintiff also tendered reports from Dr Glen Smith, a psychiatrist who was provided a history that the plaintiff had not worked as a chiropractor since 2014 (Ex. 51 p. 107).

61. Dr Smith agreed in cross-examination that the plaintiff had told him that he had stopped working as a result of the psychological impact of the Eastlake Incident (T 1310.20-46).

62. The evidence of the plaintiff in Court was that he “had no capacity to work” after the Eastlake Incident (T 113.40-43)

63. The plaintiff was cross-examined about this cessation of work as a chiropractor and his BAS (Ex. 22).

64. The plaintiff gave evidence that his BAS records were prepared in the following fashion:

• he kept records of his patients’ attendances and charges;

• those records were then provided to a bookkeeper;

• the bookkeeper compiled the income and expenses for each quarter based on these records;

• he had no complaint with the competence or work performed by his bookkeeper; and

• the bookkeeper would then forward the compiled income and expenses material to the plaintiff’s accountants for preparation of BAS records and income tax returns (T 550.10-43 and T 621.30-45).

65. That evidence supports a finding that the BAS returns were prepared on the plaintiff’s instructions and as such are an accurate and contemporaneous record of his earning capacity in the relevant periods.

66. The plaintiff agreed that the BAS records for his chiropractic business were separate to any other income (T 622.25).

67. The BAS records in Ex. 22 represent the income generated by the plaintiff as a chiropractor in the 18 months prior to and following the Eastlake Incident are as follows in terms of gross income:

• 1 July – 30 September 2012: $9,650

• 1 October – 31 December 2012: $5,891

• 1 January – 31 March 2013: $10,098

• 1 April – 30 June 2013: $13,580

• 1 July – 30 September 2013: $12,923

• 1 October – 31 December 2013: $11,934

• 1 January – 31 March 2014: $19,764 • 1 April – 30 June 2014: $15,874

• 1 July – 30 September 2014: $15,216

• 1 October – 31 December 2014: $4,798

• 1 January – 31 March 2015: $10,833

• 1 April 2015 – 30 June 2015: $9,799

• 1 July 2015 – 30 September 2015: $13,027

• 1 October 2015 – 31 December 2015: $8,116

• 1 January 2016 – 31 March 2016: $7,341

• 1 April 2016 – 30 June 2016: $9,628

• There is also tendered a Profit and Loss Statement for the tax year ended 30 June 2017 showing income of $33, 696

68. These BAS records demonstrate that in the 18 months prior to the Eastlake Incident in 2014, the plaintiff earned a gross income as a chiropractor of between $6,000 and $13,500 per quarter. Those amounts were consistent with a longstanding reduced capacity to earn income as a chiropractor due to numerous pre-existing injuries.

69. The BAS records for the first three quarters of 2014 demonstrate the three best quarters for gross income over the whole period, with earnings of $19,764, $15,874 and $15,216 respectively. The amounts that followed (October 2014 – June 2016) are consistent with the plaintiff’s levels of income between 1 July 2012 and 31 December 2013.

70. The gross income shown is a measure of the plaintiff’s working capacity, as he billed on the basis of time practiced. That is his gross income generated by work as a chiropractor prior to expenses.

71. An increase in gross income accordingly reflects an increase in the plaintiff’s work as a chiropractor. Those increases occurred after the Eastlake Incident. There was no cessation of income. There was in fact an increase in income in the period after the Eastlake Incident.

72. The records reveal that the plaintiff kept working and earning increased gross income following the Eastlake Incident. This significant contradiction between his oral evidence and evidence from contemporaneous BAS records materially undermines the plaintiff’s credibility and reliability as a witness.

Conclusion – Credit and Reliability of the Plaintiff

73. I have formed the view, after considering the contradictory evidence in relation to the three incidents from three independent witnesses and the contradictory evidence from contemporaneous documents discussed above, that the plaintiff is an unreliable witness.

74. The extent of the contradictory evidence casts a shadow over the plaintiff’s evidence. I have come to the conclusion that his evidence, where controversial, should not be accepted unless corroborated by other reliable evidence: see Maric v The Nominal Defendant [2012] NSWDC 69 at [118]. See also Maric v Nominal Defendant [2013] NSWCA 190 at [23].

75. The approach I will adopt is that reliance on the plaintiff’s evidence will be dependent on independent corroboration: see Tuggeranong Town Centre Pty Limited v Brenda Hungerford Pty Limited (No 2) [2017] ACTSC 88 at [964]; Kalenik v Apostolidis & Ors [2009] VSC 208 at [595]; and Toyota Finance Australia Limited v AJI Enterprise Group Pty Ltd [2019] NSWSC 33 at [83].

76. As I have indicated above at [31], and I underline it here, in making my assessment of the plaintiff, I have not taken into account his demeanour in the witness box. As a general proposition, it is not appropriate, other than in exceptional circumstances, to base any factual findings upon how a person presents in the unfamiliar and often daunting position of being a witness who is subjected to cross-examination: see Maric v The Nominal Defendant [2012] NSWDC 69 at [119] and Fox v Percy at [31].

77. While I am entitled to take into account my own observations of the plaintiff’s demeanour and the manner in which he gave evidence, I will refrain from doing so. While his manner of giving evidence was at times what can only be described as idiosyncratic, it is not appropriate in light of the authorities discussed above in relation to demeanour to do so. It is important to cast a clinical forensic eye over the substance of the evidence in this case rather than rely on potentially amorphous indicators of demeanour.

78. Additionally, as I have indicated above at [31] and underline here, in coming to my assessment of the plaintiff’s credit, I have put aside entirely the fact that the plaintiff has a history of past claims. The history of past claims cannot be, and is not, relevant to my determination of credit.

79. Finally, in relation to credit, the plaintiff’s written submissions at [3.1] state:

To assume a poor historian is for that reason alone not entitled to be believed. Even though there was abundant psychiatric evidence that the plaintiff was suffering from depression, that depression has an adverse impact on cognitive ability, and memory, that the Plaintiff suffered from reduction in his cognitive and memory, thereby making him a poor historian.

80. As I have stated above, I put aside any question of the plaintiff being a poor historian and, for that reason alone, not entitled to be believed.

81. The matters I have discussed above in relation to contradictory evidence from other witnesses and contradictory evidence from contemporaneous documents are not matters of mere poor historianship. In my view, these are matters that have a direct, significant, and telling impact on the plaintiff’s credibility and reliability.

Principles Relating to Assessment of Damages

82. Due to the plaintiff’s extensive medical history, and numerous accidents and injuries, there are a number of relevant principles to be taken into account when assessing the damages in relation to each accident.

Plaintiff’s Submissions

83. The plaintiff, in written submissions, summarised the relevant case law relating to assessment of damages, noting that “[d]amages may be denied or reduced where the symptoms of which a plaintiff complains are the result of a pre-existing condition”: at [242]. Onus of proof: pre- and post-injury conditions

84. In Watts v Rake (1960) 108 CLR 158 (Watts), the plaintiff suffered a commonly occurring degenerative spinal condition prior to the accident that was the subject of the claim. The High Court held that it was for the plaintiff to prove on a prima facie basis the difference between their condition prior to and post-accident. Once the change in condition is established, the evidentiary onus is then on the defendant “to exclude the operation of the accident as a contributory cause”: Dixon CJ at 160.

85. This position was confirmed by the High Court in Purkess v Crittenden (1965) 114 CLR 164 (Purkess). Barwick CJ, Kitto and Taylor JJ, at 168, stated it was insufficient for the defendant merely to suggest that the plaintiff suffered from a progressive pre-existing condition or that there was a relationship between any pre-existing condition and the plaintiff’s present incapacity.

86. Ipp JA delivered the majority decision in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 (Seltsam), in which the Court considered the plaintiff’s pre-existing health and the circumstances in which the evidentiary onus transfers to the defendant in accordance with the principles in Watts and Purkess. Ipp JA emphasised that the principles in Watts and Purkess in no way transferred to the defendant the primary onus of proof, that being the causal connection between the plaintiff’s injury and the defendant’s action or inaction.

87. Ipp JA in Seltsam, at [96], stated that, in Watts, Dixon CJ was dealing with three of the defendant’s contentions:

(a) Firstly, that the plaintiff was predisposed to the conditions that developed as a consequence of the accident;

(b) Secondly, that part of the plaintiff’s condition was traceable to causes other than the accident; and

(c) Thirdly, that, had there been no accident, the plaintiff would have been incapacitated by his pre-existing condition.

88. Ipp JA continued at [96]: “Dixon CJ said that, in regard to the second and third contentions, there was a presumptio hominis in the plaintiff’s favour that the defendant should overcome. It was for the defendant to do the disentangling and to exclude the operation of the accident as a contributory cause.”

89. Ipp JA summarised the principles as follows at [105]-[109]:

Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situation of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of “disentanglement” discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations – not proof on a balance of probabilities. Without intending to give an exhaustive list of possibilities, it may be that, had the defendant’s negligent act not occurred, a pre-existing condition might have given rise to the possibility that the plaintiff’s enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury; in addition, other causes entirely unrelated to the defendant’s negligent act might have contributed to the plaintiff’s ultimate condition. Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the defendant’s negligence. A pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation. As was pointed out in Newell v Lucas [1964-5] NSWR 1597 (at 1601 per Walsh J, with whose judgment Hardie and Asprey JJ agreed), the court must determine whether a comparison may be made between the plaintiff’s condition prior to the injuries sustained by the defendant’s negligence (including the plaintiff’s economic and other prospects in that condition) and the plaintiff’s condition and prospects after the injuries. Nothing in Watts v Rake and Purkess v Crittenden precludes the judge from carrying out this exercise. Of course, if the evidence does not adequately establish the pre-existing condition or its possible consequences (as was the case in Purkess v Crittenden), it would not be possible to carry out such a comparison and assessment. In regard to the possible consequences, a scintilla of evidence would not suffice. The evidence must be such that a reasonable person could draw from it the inference that the possible consequences contended for by the defendant existed (see McCormick, Evidence, 5th ed, para 338, p 511). (Emphasis in original)

Causation – eggshell skull

90. To establish a claim for damages, a plaintiff must establish not only a breach of duty of care, but also that the breach led to the complained loss.

91. It is an established principle that a defendant must take a plaintiff as they find them. This has been confirmed by the Full Court of the Federal Court in Australian Capital Territory Schools Authority v El Sheik [2000] FCA 931, where Wilcox J said at [26]:

…If negligence be shown, a defendant must take a plaintiff as he or she is; it is no answer to say that the plaintiff has suffered a degree of injury exceeding what would be suffered by a normal person without the special vulnerability. However, in assessing the question whether a defendant has been guilty of negligence, the fact that the defendant was unaware of the special condition is of considerable importance. A defendant must exercise reasonable care, having regard to the information actually or constructively known to the defendant. It follows that, in the present case, the question of breach of duty must be evaluated on the same basis as if Mr El Sheik did not suffer a special vulnerability… 92 . In Commonwealth of Australia v McLean (1996) 41 NSWLR 389 at 406, Handley and Beazley JA stated: “The ‘eggshell skull’ principle makes a defendant liable for damage of an unforeseeable extent, but not for unforeseeable damage of a different kind”.

93 . This principle takes into account the physical, social, and economic attributes of the plaintiff which might make them more susceptible to injury: Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 502 at 537 (McHugh JA).

94. In Chapman v Hearse (1961) 106 CLR 112 at 120, the High Court approved the following passage from Haynes v Harwood (1936) 1 KP 46 at 156:

It is not necessary to show that this particular accident and this particular damage were probable; it is sufficient if the accident is of a class that might well be anticipated as one of the reasonable and probable results of the wrongful act.

95. The plaintiff submitted at [257] that the following principles, discussed in the authorities above, are apposite in this case:

(a) The ‘eggshell skull’ principle makes a defendant liable for damages of an unforeseeable extent but not for unforeseeable damage of a different kind. Under this principle, a defendant is liable for additional damage of a foreseeable kind suffered by a plaintiff who has some special vulnerability. (b) A wrongdoer is responsible for all damage of the same type or kind as was reasonably foreseeable, even if the particular damage or its extent were not reasonably foreseeable, or damage occurred in an unexpected or unforeseeable manner.

96. The plaintiff submitted that “the plaintiff was vulnerable prior to the accident but his opportunity for a full life was substantially impaired by the series of events the subject of these claims.” Further, the “residual capacity” that the plaintiff did have prior to 2012 was “extinguished completely” by the time of the last incident in 2018: at [258].

97. With reference to Dr Bentivoglio’s reports dated 30 June 2017 and 8 March 2018, the plaintiff submitted that the defendants must accept that the plaintiff was in a vulnerable physical condition, and that it is the aggravation of this vulnerable condition – which may seem minor from a medical point of view but which has been significant in its effect on the plaintiff – for which the defendants must compensate the plaintiff: at [260]-[261]. In the plaintiff’s submission, the significance of the impact of this ‘aggravation’ of pre-existing conditions can be seen through the plaintiff’s working capacity and working life prior to 2012: at [262].

98. The plaintiff’s working capacity prior to 2012 was a significant matter of contention between the parties.

Principles of Apportionment

99. The plaintiff submitted that an apportionment approach was appropriate in relation to the assessment of damages. The defendants submitted against such an approach (T 1634.23-27).

100. In light of my factual findings, an apportionment approach is neither appropriate nor available on the plaintiff’s case.

Evidence

101. The oral and written medical evidence in this case was extensive. Summaries of the medico-legal reports prepared in relation to these incidents are included below in relation to each accident.

102. Clinical notes, reports from treating doctors, and other evidence tendered has been taken into consideration but has not been explicitly referred to, except where the evidence was the subject of witness examination or submissions.

Legislation

103. The following provisions from the Civil Law (Wrongs) Act 2002 (ACT) (Wrongs Act) are relevant to actions in negligence:

42 Standard of care For deciding whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant’s position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose. 43 Precautions against risk—general principles 1) A person is not negligent in failing to take precautions against a risk of harm unless— a. the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and b. the risk was not insignificant; and c. in the circumstances, a reasonable person in the person’s position would have taken those precautions. 2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things): a. the probability that the harm would happen if precautions were not taken; b. the likely seriousness of the harm; c. the burden of taking precautions to avoid the risk of harm; d. the social utility of the activity creating the risk of harm. 44 Precautions against risk—other principles In a proceeding in relation to liability for negligence— a. the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and b. the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which it was done; and c. the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and is not of itself an admission of liability in relation to the risk. Part 4.3 Causation 45 Causation – General principles 1) A decision that negligence caused particular harm comprises the following elements: a. that the negligence was a necessary condition of the happening of the harm (‘factual causation’); b. that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (the scope of liability). 2) However, if a person (the plaintiff) has been negligently exposed to a similar risk of harm by a number of different people (the defendants) and it is not possible to assign responsibility for causing the harm to 1 or more of them— a. the court may continue to apply the established common law principle under which responsibility may be assigned to the defendants for causing the harm; but b. the court must consider the position of each defendant individually and state the reasons for bringing the defendant within the scope of liability. 3) In deciding the scope of liability, the court must consider (among other relevant things) whether or not, and why, responsibility for the harm should be imposed on the negligent party. 46 Burden of proof 1) In deciding liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation. … 102 Apportionment of liability—contributory negligence 1) If a person (the claimant) suffers damage partly because of the claimant’s failure to take reasonable care (contributory negligence) and partly because of someone else’s wrong— a. a claim for the damage is not defeated because of the claimant’s contributory negligence; and b. the damages recoverable for the wrong are to be reduced to the extent the court deciding the claim considers just and equitable having regard to the claimant’s share in the responsibility for the damage. 2) However, if the claimant suffered personal injury and the wrong was a breach of statutory duty, the damages recoverable by the claimant for the personal injury must not be reduced because of the claimant’s contributory negligence. … 168 Liability of occupiers 1) An occupier of premises owes a duty to take all care that is reasonable in the circumstances to ensure that anyone on the premises does not suffer injury or damage because of— a. the state of the premises; or b. things done or omitted to be done about the state of the premises. 2) Without limiting subsection (1), in deciding whether the duty of care has been discharged consideration must be given to the following: a. the gravity and likelihood of the probable injury; b. the circumstances of the entry onto the premises; c. the nature of the premises; d. the knowledge the occupier has or should have about the likelihood of people or property being on the premises; e. the age of the person entering the premises; f. the ability of the person entering the premises to appreciate the danger; g. the burden on the occupier of removing the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.

The Bunnings Incident

Introduction

104. It was agreed between the parties that, on 18 January 2012, the plaintiff entered the foyer of Bunnings Warehouse on Newcastle Street in Fyshwick where an employee of the defendant was standing (Statement of Claim dated 15 January 2015, Defence dated 15 March 2016).

105. In the Statement of Claim dated 15 January 2015, the plaintiff alleged that upon entry to the premises “suddenly and without warning, the employee swung her arm, hitting the plaintiff in his face”, causing him injuries, disabilities, loss and damage.

106. It was alleged in the Statement of Claim dated 15 January 2015 that, as a result of the Bunnings Incident, the plaintiff suffered the following injuries:

(a) shock; (b) fracture to nasal bone and nasal septum; and

(c) pain in the face and nose.

107. It is further alleged that, as a result of the Bunnings Incident, the plaintiff suffered the following disabilities:

(a) difficulty breathing;

(b) necessity for rhinoplasty surgery;

(c) necessity for septal reconstruction to realign nasal bones and nasal septum;

(d) recurring sinus infection;

(e) headaches;

(f) necessity for pain relief medication; and

(g) necessity for attendance on medical specialists.

108. The plaintiff sought damages for medical expenses and past and future economic loss.

109. The defendant denied that any injury, disability or loss was the result of a breach of a duty of care and further said that any injuries suffered were pre-existing or caused by a different event. Further, the defendant submitted the plaintiff’s injuries (which are not admitted) were caused or contributed to by the plaintiff’s own negligence.

Medical Baseline

110. On 17 February 2020, in oral submissions, the plaintiff acknowledged that, at 18 January 2012, the plaintiff was suffering from a number of pre-existing health conditions. The plaintiff suffered degeneration of the spine, in particular the cervical spine. He had a long history of psychological difficulties, including depression, and was the victim of a king-hit assault in 2006 which resulted in a fracture to the orbit around his eye. Shortly prior to the Bunnings Incident, the plaintiff had some facial work done to repair a deviation in the nasal septum, in order to remedy the consequences of the earlier assault. Furthermore, the plaintiff had a long history of diplopia, which varied in its effect, and “had either resolved or was resolving” prior to the Bunnings Incident (T 1636.21-1637.2). The defendant accepted this medical baseline “in general terms” (T 1638.1-5).

Evidence

Lay Evidence

The plaintiff

111. It was the plaintiff’s evidence that he attended Bunnings Fyshwick on 18 January 2012 to buy paint. The plaintiff described walking through the front door of the shop and turning right. After taking a step, he stated he was then hit in the “central left” side of his face, “over the eye between the nasal bone – nasal septum, middle of my face, and the outside of my eye” (T 29.1-10).The plaintiff described being hit by an employee who “does the directing”; the employee was facing away from him, talking to another staff member to her right (T 29.12-15). The plaintiff had seen the employee in his peripheral vision (T 64.20-34). The impact was described as a “smack in the face” (T 29.29 and 57.35).

112. The plaintiff then deposed that he “went down” two times after being hit and the employee came to check if he was hurt, allegedly asking whether there was blood on his face. The plaintiff then told the employee that he had just had “$15,000 in operations” and that he could “feel blood and stuff going into the back of my throat”; he then continued towards the paint section (T 29.20-33).

113. It was the plaintiff’s evidence that a conversation then occurred with the employee where she expressed concern that she would “get into trouble” and the plaintiff stated she would have to prepare an incident report (T 29.36-39). The plaintiff then proceeded to pick out some paint before returning to speak to a different employee who was filling out an incident report. The plaintiff described his pain level as being a “six or seven” out of ten. While the pain around the nose resolved within a week, the pain under his eye did not resolve “for a long time” (T 70). The plaintiff further gave evidence of developing a sore neck “within a short time” after the incident (T 65.3-5).

114. After the incident the plaintiff deposed that he was unable to breathe through his left nostril (T 30.6) and that he had “left lateral double vision” that was not present before the incident (T 31.46-32.1). The plaintiff gave evidence this did not affect him a “great deal” in his day-to-day activity, but that he also suffered numbness under his eye for “a couple of years” (T 65.38-66.4).

115. The plaintiff gave evidence that he was subsequently operated on by Dr Albekaa. Dr Albekaa operated on his sinuses but did not remove an existing plate due to cost (T 32.10-23). The plaintiff then had the plate removed at the Canberra Hospital (T 32.35), after which he returned to Dr Albekaa to have two operations to resolve breathing issues (T 32.45-33.4).

116. In cross-examination, the plaintiff accepted that he had previously experienced diplopia following the 2006 assault but asserted this was resolved following the surgery in April 2006 (T 182.29-39). When taken to records in the subsequent years which suggested the continued presence of diplopia, the plaintiff denied that he was continuing to suffer diplopia after 2006 (T 196.40-45). Later in cross-examination, the plaintiff agreed that in 2014 he told a doctor that he had experienced diplopia “in that little region” since 2006 (T 243.42-244.7).

Vicky Schramm

119. Ms Vicky Schramm gave evidence that on 18 January 2012 she was working at Bunnings Fyshwick and at about 4pm that afternoon she went to speak to her colleague, Ms Sandra Westlin. Ms Schramm recalled Ms Westlin was working as a “store greeter” and that Ms Schramm was standing to her left, with both women facing into the store with their backs to the carpark outside (T 1076.12-1077.10).

120. Ms Schramm’s evidence was that, while in this position, she indicated with her left hand to an air-conditioning unit over the tool shop. Ms Schramm demonstrated this by holding her arm at a 90-degree angle with left index finger pointing upwards. She agreed her hand was open (T 1077.20-33 and 1198).

121. While Ms Schramm’s arm was in this position, Ms Schramm recalled “the brush of something” against the back of her hand and then seeing a man “grab his nose” (T 1077.38-43). After this, Ms Schramm deposed that the plaintiff said to her that “[she] damaged his $12,000 nose job”. Ms Schramm thought the plaintiff was joking. She further denied the characterisation that she “smacked him in the face” (T 1078.10-15 and 1079.6).

122. Ms Schramm gave evidence that, between 12 to 18 months before commencing her employment at Bunnings in 2008, she underwent surgery in relation to Carpel Tunnel Syndrome in both her wrists and that her wrists remained damaged and “painful” since that surgery (T 1075.40-1076.10).

123. In cross-examination, Ms Schramm denied that she was turning or swinging her arm at the time of the impact (T 1081.44) and denied that the plaintiff “went down towards the ground” (T 1082.16). It was accepted that, by reference to a photograph of the interior of the store as it appeared in January 2012 (Ex. 42), there appeared to be a dark object which would have obstructed the view of where Ms Schramm was standing for a person entering the store (T 1088.21).

Sandra Westlin

124. Ms Sandra Westlin gave evidence that she was working as a “meet and greet” person at Bunnings Fyshwick on 18 January 2012 and confirmed that, at approximately 4pm, she was approached by Ms Schramm who stood to her left (T 1089.21-1090.4). Ms Westlin confirmed that Ms Schramm pointed to an air-conditioning unit with her arm bent at the elbow (T 1090.27).

125. Ms Westlin recalled an individual walking “fairly briskly” past Ms Schramm, making contact at about head height (T 1090.34-44). She did not notice that Ms Schramm was moving her arm at the time of contact (T 1090.47). She recalled the individual taking further steps before turning and holding his nose, but she did not recall the individual saying anything (T 1091.4-12).

126. Ms Westlin was not cross-examined.

CCTV Footage

127. Exhibit 1 contained CCTV footage from various camera angles of Bunnings Fyshwick on the day of the incident. The contact between the plaintiff and Ms Schramm is not visible on the CCTV footage. The plaintiff can be seen to lean forward and hold his nose after entering the main entrance of the store.

128. In other angles, the plaintiff is seen walking around the store and making a purchase, touching his face and his nose from time to time. There is otherwise with no sign of any injury or restriction. Expert Evidence – the Bunnings Incident

Dr Michael McGlynn

129. Dr Michael McGlynn is an oral and faciomaxillary surgeon retained by the plaintiff who prepared a report dated 20 August 2018. He examined the plaintiff on 8 August 2018.

130. Dr McGlynn’s report concluded that it was “more likely than not” that, at Bunnings, the plaintiff suffered a blow to the left orbit that loosened screws and dislodged the plate on the inferior orbital rim (Ex. 51 p. 135). In response to Dr Matison’s conclusion that a powerful blow would have been required to cause the injuries alleged by the plaintiff, Dr McGlynn found that the blow sustained in the incident would have been sufficient to cause displacement of the orbital plate and screws. His opinion relied on the fact that a blow to the eye places significant pressure on the orbital walls, in the same way a hydraulic pump magnifies force (Ex. 51 p. 136). Finally, Dr McGlynn opined that a blow to the left side of the face, as alleged in the Bunnings Incident, was unlikely to have caused deviation of nasal bones and septum to that side (Ex. 51 p. 136).

131. In cross-examination, Dr McGlynn gave evidence that the degree of force involved in the Bunnings Incident was a matter of inference based on the plaintiff’s description of the mechanism of impact (T 1243.41-46), but that a “hard” blow was not necessarily required to produce a fracture to the orbit (T 1244.22-24). It was accepted there was no evidence of fracture of the orbit following the Bunnings Incident (T 1245.20-22).

132. Dr McGlynn accepted that, if the plate inserted into the plaintiff in 2006 was a titanium mesh plate, he would expect bonding of the plate to the bone over time (T 1244.41- 1245.3).

133. When asked as to whether a hand “brushing” the plaintiff would cause the injuries, Dr McGlynn’s evidence was that, based on the evidence before him, the impact was “a blow to the face” and, if that was not the case, he could not offer an opinion (T 1246.45- 1247.2).

134. In re-examination, Dr McGlynn gave evidence that, if the plate was felt to be loose after the Bunnings Incident, the mechanism of injury described could cause this to occur (T 1247.31-35).

Dr David Gorman

135. Dr David Gorman is a physician retained by the plaintiff who prepared a report dated 25 October 2017. A further report dated 1 February 2018 contained clarifications to the previous report.

136. Dr Gorman’s report concluded that the Bunnings Incident resulted in a fracture to the plaintiff’s nasal bone and worsening of his diplopia (Ex. 51 p. 98). He concluded that the plaintiff’s sleep apnoea and reduced capacity to work could be attributed, in part, to the Bunnings Incident (Ex. 51 p. 99). The report relied upon an interview with and examination of the plaintiff, as well as medical records (Ex. 51 p. 92).

137. In the 2017 report, Dr Gorman concluded that “the diplopia and aggravation of his cervical spondylosis caused by the Bunnings Incident would have played a major role” in the plaintiff ceasing work in 2014.

138. Dr Gorman also stated: “I believe the Bunnings Incident would be the only contributor to his sleep apnoea”.

139. In cross-examination, Dr Gorman accepted that he would generally defer to an ophthalmologist or neurologist on the questions of diplopia (T 1258.3), defer to Dr Albekaa in relation to the septum and nasal bones repair (T 1261.4), and defer to Dr Wee in relation to questions of sleep apnoea (T 1258.7), including that the Bunnings Incident was the only cause of that condition (T 1259.7).

140. Dr Gorman accepted that he was not able to attribute cervical spondylosis to the Bunnings Incident, there being no history taken regarding a neck injury in that incident (T 1260.26).

Dr Glen Smith

141. Dr Glen Smith is a consultant clinical and forensic psychiatrist who prepared a report dated 7 February 2018 at the request of the plaintiff.

142. Dr Smith’s report relied upon extensive medical records and reports, as well as an individual consultation with the plaintiff (Ex. 51 p. 106). He diagnosed the plaintiff with persistent depressive disorder, with intermittent major depressive episodes (Ex. 51 p. 115). Dr Smith stated that the plaintiff’s poor psychological condition was “a result of the cumulative effect of the incidents”; he considered the Bunnings Incident and Eastlake Incident to be the most significant (Ex. 51 p. 117). He assessed the plaintiff as being completely unfit for employment due to his depressive symptoms (Ex. 51 p. 117).

143. Dr Smith was cross-examined regarding his opinion that the Bunnings Incident was a significant contribution to the plaintiff’s depression and inability to work, taking into account his reported worsening of depressive symptoms, dropped concentration levels and memory capacity, and sleep apnoea. Dr Smith was asked to assume there was evidence of sleep apnoea before the incident, that memory and concentration issues did not arise until 2014, and there was no effect on employment. While noting that while one can work while depressed, Dr Smith accepted that, if the plaintiff’s work was not affected, the Bunnings Incident could not have contributed to his inability to work. Further, if there was no time off work, it was “less consistent” with the plaintiff being severely depressed (T 1299.39).

144. In re-examination, Dr Smith gave evidence that the mere fact of continued work does not necessarily mean one is fit to do so (T 1324.17), noting the relevance of medical certificates regarding unfitness. He concluded his evidence by stating: “The fact that he [the plaintiff] has continued to work is not surprising. It’s quite common for people of all professions to continue to work impaired” (T 1324.27-28).

Dr Safi Albekaa

145. Dr Safi Albekaa is an otolaryngologist who prepared a number of reports dated 26 October 2016, 23 February 2017, and 19 January 2018 at the request of the plaintiff.

146. The plaintiff consulted Dr Albekaa in March 2012, approximately two months after the Bunnings Incident. Dr Albekaa’s contemporaneous notes and correspondence were tendered as evidence, as well as a number of letters responding to questions posed by the plaintiff’s solicitors. In these letters, Dr Albekaa confirmed his diagnosis from March 2012 that the plaintiff had a fracture to his nasal septum and left nasal bone, and that the titanium plate (referred to by Dr Albekaa as titanium mesh) was loose with a sharp edge at the orbital floor on the left side (Ex. 51 p. 144). Dr Albekaa further confirmed that he believed the injuries to be consistent with the plaintiff’s version of the incident, that is, the result of a fast-moving arm with force and momentum (Ex. 51 p. 146).

147. On 21 March 2012, Dr Albekaa wrote to Dr Henry Berenson of Florey Medical Centre the following:

Mr Ryan came to see me today complaining of numbness on the left side of his face. As you know he underwent surgical repair to a fracture of his left orbital floor in 2006 with titanium mesh. ENT examination today showed the titanium mesh to be loose with a sharp edge at the orbital floor on the left side. This occurred from recent trauma to Mr Ryan’s face which also managed to fracture his left nasal bone and nasal septum causing obstruction to his left nasal breathing. I believe he will need exploration to his left orbit in order to remove this titanium mesh. He will also need rhinoplasty and septal reconstruction to re-align his nasal bones and nasal septum…

148. In cross-examination, Dr Albekaa confirmed that the plaintiff had told him the blow was a heavy strike (T 1337.40). He disagreed with the proposition that it was “not unusual” for the plate and screws to be palpable given there is a lack of flesh in the area (T 1339.12-18).

Dr Leon Le Leu

149. Dr Leon Le Leu is an occupational physician retained by the plaintiff who prepared reports dated 17 October 2016, 6 February 2017, 10 February 2019, 16 February 2019, and 11 July 2019.

150. Dr Le Leu’s report dated 17 October 2016 relied upon a consultation with the plaintiff, as well as extensive medical records and reports (Ex. 51 p. 53). Dr Le Leu attributed 25% of the plaintiff’s depression to the Bunnings Incident, as well as 35% of the visual injuries, 20% of the cervical spine difficulties, and 50% of the ENT injuries (Ex. 51 p. 81). Dr Le Leu concluded that the Bunnings Incident was probably the most severe of the first three incidents, stating that “all three of these [incidents] have resulted in high levels of pain and discomfort, and he has not significantly recovered from any of the three” (Ex. 51 p. 82). Further reports produced by Dr Le Leu in 2017 and 2019 considered the impact of the fourth and fifth incidents and are not relevant to the Bunnings Incident.

151. In cross-examination, Dr Le Leu accepted that he first saw the plaintiff over four years after the Bunnings Incident and relied on the plaintiff’s description of the event (T 1494.34-43). Dr Le Leu assumed that the plaintiff had been knocked backwards or sideways, not to the ground, and with sufficient force to bring on a range of symptoms (T 1495.5-10).

152. Dr Le Leu agreed that it would be surprising if there was no neck treatment following the Bunnings Incident if symptoms had increased as a result (T 1496.20-30).

153. Dr Le Leu gave evidence that, if there was no forceful movement to the neck in the Bunnings Incident, the plaintiff could not have suffered a whiplash injury. He further stated that, if no force was applied, he was also unsure how the plaintiff could have suffered the other injuries asserted (T 1497.2-5).

154. Dr Le Leu agreed he should not have attributed a percentage figure to the plaintiff’s depression given his qualifications (T 1497.23). Dr John Bentivoglio

155. Dr John Bentivoglio is an orthopaedic surgeon retained by the plaintiff who prepared reports dated 16 August 2016, 30 June 2017, 8 March 2018, 16 November 2018 and 12 July 2019.

156. The report prepared by Dr Bentivoglio in 2016 noted that he had great difficulty obtaining information from the plaintiff. He stated that the plaintiff “had poor memory, tended to ramble on” and only responded to simple questions when asked multiple times (Ex. 51 p. 11). The report provided a summary of the plaintiff’s health condition at the time of examination, August 2016, but did not address the impact of the Bunnings Incident in detail. Dr Bentivoglio’s report summarised the treatment sought by the plaintiff following the incident; however, no conclusions were drawn, and in some instances the information was not substantiated by contemporaneous medical records. Subsequent reports prepared in 2017 and 2018 did not elaborate further on the Bunnings Incident.

Medically there is no way of proving Mr Ryan had any symptoms in his neck prior to the Bunnings incident in January 2012 or whether he had exactly the same amount of symptoms present in his neck prior to the Bunnings incident in January 2012. We are totally reliant on Mr Ryan’s history for that. May I reiterate I had difficulty obtaining a history from Mr Ryan and he confessed to having a poor memory. (Emphasis added).

158. In cross-examination, Dr Bentivoglio agreed that he relied on the plaintiff to provide an accurate history in making his assessments. He agreed that it would be entirely inconsistent with the history provided that the plaintiff did not undergo a CT scan on his neck in January 2012, and did not receive treatment for his neck until December 2013 (T 1464).

159. Dr Bentivoglio did not recall what the plaintiff described as causing a neck injury in the Bunnings Incident, but agreed that some form of “flexion or extension” would have been required (T 1464.1-11).

160. Dr Bentivoglio agreed that “very little” could be attributed to the Bunnings Incident in respect of any neck injury, given the history of the plaintiff and given he saw the plaintiff only in August 2016 (T 1465.4-9).

Dr Michael Delaney

161. Dr Michael Delaney is an ophthalmic surgeon who was retained by the plaintiff and prepared reports dated 22 September 2016, 19 January 2017, 18 October 2018, and 11 January 2019.

162. Dr Delaney examined the plaintiff in September 2016 and was provided relevant medical records. In his report dated 22 September 2016, he concluded that the Bunnings Incident (and the subsequent surgery to remove the titanium plate) directly caused the plaintiff’s double vision to the lateral side, the enophthalmos (displacement of the eye) and the altered sensation in his right cheek (Ex. 51 p. 42). Dr Delaney concluded that the Bunnings Incident and MVA 2 (2015) contributed to the plaintiff’s double vision; however, there was further deterioration in the plaintiff’s double vision that could be attributed to the fourth cranial nerve palsy (Ex. 51 p. 42-43).

163. Subsequently, Dr Delaney was asked to prepare a further report in response to the report of Dr Matison. In his report dated 19 January 2017, Dr Delaney noted that his previous report and Dr Matison’s report were based on two different sets of assumptions. He concluded that, if Bunnings’ version of events was correct, then Dr Matison’s conclusions would be reasonable (Ex. 54 no. 4). Further reports prepared by Dr Delaney did not consider the Bunnings Incident.

164. In evidence in chief, Dr Delaney gave the opinion that it was very difficult to attribute the cause of diplopia due to the complex history of the plaintiff (T 1586). With respect to the plaintiff’s nerve palsy, Dr Delaney considered there to be two possible causes: the “more likely” cause being MVA 2, and the other being diabetes (T 1587).

165. In cross-examination, Dr Delaney accepted that the plaintiff had not been tested for double vision until he saw Dr Delaney on 22 September 2016 (T 1589.4-11).

166. Dr Delaney gave evidence that he was not aware of the report of Dr Battlay in 2010 which included a reference to the plaintiff suffering from permanent double vision. He agreed that this was contradictory to the history given to him by the plaintiff (T 1590). Dr Delaney agreed with the proposition that “a blow of quite significant and powerful force would be required to fracture the nasal bone and displace the fixed titanium plate”; this was unlikely to have been caused by the stationary arm of a woman (T 1592.27- 38).

Mr Leigh Nomchong

167. Mr Leigh Nomchong is a psychologist retained by the plaintiff. He examined the plaintiff in July 2016 and prepared a report dated 22 July 2016. Mr Nomchong was not called to give oral evidence.

168. Mr Nomchong’s report stated that the plaintiff was suffering from Major Depression as a result of the restrictions upon his lifestyle and his quality of life due to physical injuries (Ex. 51 p. 3). Mr Nomchong opined:

This is a particularly complex case. Dr Ryan has an extensive history of injury from various sources, all of which have had quite significant impacts on his physical well-being, quality of life and ability to interact with his environment in a successful manner.

169. Mr Nomchong noted that the plaintiff had previously been diagnosed with adjustment disorder in 2010; he opined that the plaintiff was not suffering from adjustment disorder when examined in 2016 (Ex. 51 p. 4).

170. Recognising the difficulties and limitations in undertaking such a task, Mr Nomchong attributed the following percentages of the plaintiff’s Major Depression to each incident:

(a) Bunnings Incident – 20%

(b) MVA 1 – 35%

(c) Eastlake Incident – 0%

(d) MVA 2 – 45%

171. Mr Nomchong concluded that, following the Bunnings Incident, “pain levels increased significantly, headaches returned, and vision difficulties were mildly exacerbated” (Ex. 51 p. 6).

Dr David Matison

172. Dr David Matison is a consultant otolaryngologist who was retained by Bunnings and prepared a report dated 18 May 2016. He examined the plaintiff on 9 May 2016.

173. After examination in chief by Mr Shillington for Bunnings and cross-examination by Mr Pappas for NRMA Defendants and Mr Menzies QC for the plaintiff, Mr Shillington indicated that he did not press the balance of the report (T 1238).

Dr Michael Bowler

174. Dr Michael Bowler is an oral and maxillofacial surgeon retained by Bunnings who prepared a report dated 29 October 2018.

175. Dr Bowler’s report relied upon extensive medical records and medico-legal reports prepared in relation to the plaintiff’s matters. His report ultimately concluded that it is “highly unlikely” that the Bunnings incident caused any damage to the titanium plate that was inserted in 2006 (Ex. 5 p. 293). Dr Bowler agreed with Dr McGlynn’s assessment that the incident may have aggravated the plaintiff’s septal deviation but stated that it was unlikely that it resulted in nasal bone deviation (Ex. 5 p. 292). While Dr Bowler agreed that a blow to the eye is a typical mechanism for a blowout fracture, he noted that there was no radiographic evidence that the plaintiff sustained an orbital fracture (Ex. 5 p. 293). Further, he concluded that a repeat fracture would be unlikely, particularly where the infraorbital rim had been reinforced with a titanium plate (Ex. 5 p. 293). Dr Bowler conceded that the incident may have resulted in some soft tissue damage, leading to discomfort around the plate, but he did not accept that this could be viewed as a “loosening” of the plate (Ex. 5 p. 291). Dr Bowler agreed that the advice provided to the plaintiff by Dr Bertram was appropriate, namely that the titanium plate did not need to be removed (Ex. 5 p. 292).

176. In cross-examination, Dr Bowler’s evidence was that, while palpable, it would be unlikely that the titanium plate was loose, noting the absence of further evidence to support this conclusion. Dr Bowler observed that there was no reference to the plate being loose in a subsequent examination by Dr Bertram who observed, “after lengthy discussion with Mr Ryan it was clear he wishes to have his palpable plates removed” which Dr Bowler understood to mean there was no good clinical reason for their removal (T 1291.20-34). He noted: “I’ve probably done more maxillofacial trauma than just about anybody in this country and I have not personally seen an infraorbital plate become loose ever” (T 1290.23-25).

Submissions of the Plaintiff

Breach of the Duty of Care

177. The plaintiff alleged that Bunnings was negligent as a result of:

(a) failing to properly instruct and train its employees to keep a proper lookout for customers; (b) failing to provide a direction to its employees to keep a proper lookout for customers;

(c) failing, by its servants or agents, to ensure the safety of the premises for customers in an area where it was known that it was likely that customers would be walking; and

(d) failing to take adequate precautions to safeguard customers from the risk of harm.

178. By reference to the standard outlined in s 42, the plaintiff submitted that Bunnings knew, or ought to have known, that the foyer of the premises was a high traffic area; that customers walked “quite quickly” into the premises; that customers may be distracted; that a person who is “struck in the face” is likely to sustain injury; and that the area where staff members were standing would be obscured from view.

179. The plaintiff submitted that, in these circumstances, harm was foreseeable (s 43(1)(a)) and the risk was not insignificant (s 43(1)(b)). With respect to s 43(1)(c) and s 44 and the precautions a reasonable person would have taken, the plaintiff proposed at [27] that Bunnings should have provided:

[T]raining, direction and proper control of staff as to the risks associated with obstruction of thoroughfares and entry area and the importance of maintaining these areas for this purpose, and not for the purposes of conferencing between staff, as was occurring in this instance and keep the premises free of hazards, including employees, and obstructions which limited both 1 the Plaintiff’s and Ms Westlin’s [sic] to see each other and should direct staff to keep these areas clear for passage.

Contributory Negligence

180. With respect to the allegation of contributory negligence, particularised below at [190]- [192], the plaintiff submitted that the plaintiff’s view of the employees was obscured by the placement of posters, advertising and other material over a transparent dividing wall immediately adjacent to the employees and as such, he was unable to be warned as to the existence of objects or persons beyond this wall.

Causation of Injuries

181 . In respect of the alleged aggravation of the plaintiff’s neck injury, the plaintiff relied upon the conclusion of Dr Gorman in his October 2017 report, outlined above at [135]-[137], that the Bunnings Incident caused an aggravation of the plaintiff’s cervical spondylosis.

182. As to the alleged fracture of the nasal bone and septum, the plaintiff relied upon correspondence from Dr Albekaa on 21 March 2012 referred to above at [147] including the recommended surgical approaches and Dr Gorman’s conclusion with respect to the sleep apnoea in his October 2017 report.

183. In relation to the plaintiff’s diplopia, the plaintiff alleged the Bunnings Incident caused the development of lateral side diplopia and central vision diplopia, requiring prescription glasses. In this respect, the plaintiff relied on the conclusions of Dr Delaney, outlined above at [161]-[163]. The plaintiff also alleged a sunken left eye and altered sensation over the left cheek, as well as shock.

1 As underlined in Bunnings’ submissions, references to Ms Westlin in the plaintiff’s submissions appear to be in error and should instead read ‘Ms Schramm’.

184. The plaintiff outlined a number of medical treatments said to relate to the alleged injuries. This included an attendance on Dr Albekaa, ENT surgeon, in March 2012; a 2 referral to Dr Dylan Hyam , oral maxillofacial surgeon in May 2012; an attendance on Dr Anthony Bertram at the Maxillofacial Outpatients Department for a review of facial pain; a review at the Maxillofacial Clinic in June 2012; removal of the facial titanium plates in September 2012; a presentation to Canberra Hospital in September 2012; and a further presentation at the Maxillofacial Department of Canberra Hospital in December 2012 due to persistent double vision and pain. The plaintiff also referred to further facial surgeries performed in 2015, 2016, and 2017.

Submissions of Bunnings

Breach of the Duty of Care

185. With respect to the submission that the plaintiff’s view was obstructed by signage, Bunnings submitted:

(a) There was no particular alleged against Bunnings that it obscured the plaintiff’s view by blocking it with advertising material.

(b) No expert evidence was led as to whether in fact some material obstructed sight.

(c) The plaintiff admitted he was able to see Ms Schramm in his peripheral vision. When asked if he saw the employee, he stated: “peripheral vision only, I just walked through the door, noticed that she was facing away and just went around” (T 64.20).

(d) There was no record in any of the medico-legal reports of signage blocking his sight.

186. It was submitted the plaintiff’s evidence in this regard was self-serving and ought to be disregarded and used against him in regard to credit.

187. In addressing the mandatory factors in s 168(2) as to whether a duty of care has been discharged, Bunnings submitted:

(a) Any injury from being struck by an employee pointing to an object is “highly unlikely” and it is commonplace that a “people-greeter” would regularly be pointing directions for customers, as this is an appropriate and a reasonable method of assisting customers: s 168(2)(a).

(b) The plaintiff was a legal entrant onto their commercial premises. The premises were open to the public: s 168(2)(b)-(d).

(c) The plaintiff was an adult aged 56 years with no special requirements (s 168(2)(e)) who had been to the store “hundreds of times” (T 198.30) prior to the incident. He was very familiar with the premises and the presence of the people greeter: s 168(2)(f).

(d) A significant burden would be placed on Bunnings if it were to be required to “remove the so-called danger of all people greeters from stores” or to direct employees “to have their hands by their sides at all times”. Such “absurd” burdens are not appropriate where the risk of danger is “negligible”: s 168(f).

2 I note that, in the plaintiff’s submissions, Dr Dylan Hyam is incorrectly referred to as Dr ‘Michael’ Hyam.

188. Addressing the considerations under s 43 of the Wrongs Act, it was submitted that the risk of injury was not foreseeable. Further, where the risk arises from contact with an employee’s hand pointing at an air conditioner, whose elbow is bent, it is far-fetched and fanciful. Bunnings submitted the plaintiff’s case relied upon a forceful strike, which the evidence does not establish and the plaintiff’s evidence of which was exaggerated.

189. Bunnings rejected that they ought to have trained their employees in a manner inconsistent with how Ms Schramm acted and submitted that there was no evidence to suggest current training was deficient: s 43(1)(c).

Contributory Negligence

190. While Bunnings maintained that primary liability is not established, it was submitted that, to the extent of any injury, the plaintiff was contributorily negligent in that:

(a) he failed to exercise reasonable care for his own safety;

(b) he failed to keep any, or a proper, lookout;

(c) he failed to watch where he was walking;

(d) he failed to take all the necessary steps to avoid the risk of injury; and

(e) he walked into the outstretched and stationary arm of the employee.

191. Bunnings noted that Ms Schramm was not cross-examined on her evidence that her arm was stationary and had been in place for “seconds” before contact (T 1077.36). Moreover, Ms Westlin was not cross-examined on her evidence that Ms Schramm’s arm was stationery and plaintiff was walking “fairly briskly” before making contact. In addition, it was submitted that, given the plaintiff stated he saw Ms Schramm in his peripheral vision, he must not have been looking directly at her. Bunnings submitted the plaintiff could have made reasonable attempts to assess his surroundings and that it is “normal human conduct to wait for a clear space rather than ‘walk briskly’ into someone”: at [45]. In this regard, Bunnings referred to the observations in Brozinic v ISS Facility Services [2014] ACTSC 8 (Brozinic) at [104] regarding obvious and ordinary risks which reasonable persons would avoid.

192. Should liability be established, Bunnings submitted that a just and equitable apportionment of negligence would be 80% to the plaintiff.

Causation of Injuries

Neck injury

193. Bunnings emphasised the limited evidence of the plaintiff’s alleged neck injury following the Bunnings Incident. While the plaintiff gave evidence of neck soreness, a neck injury did not feature in the Bunnings Incident report; the plaintiff did not mention a neck injury to Dr Stubbs at a medical assessment seven days after the incident; the records of Dr Lo from 13 March 2012 in relation to the Bunnings Incident do not mention a neck injury; and there is no reference to neck soreness or injury in the Statement of Claim dated 15 January 2015. Moreover, despite the plaintiff’s evidence that a CT scan on 24 January 2012 was related to the incident, the referral notes and the evidence of Dr Le Leu (T 1495.34) suggested that it instead related to a 2008 motor vehicle accident.

194. Bunnings also relied upon concessions by Dr Gorman, above at [140], regarding the attribution of cervical spondylosis, and Dr Bentivoglio, above at [160], regarding the attribution of a neck injury.

195. In the absence of establishing a mechanism for a whiplash injury, Bunnings submitted the aggravation of the pre-existing neck condition was not made out. It was submitted the Court should rely upon objective material and documentary reports rather than human memory: citing Re Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 at [7]; and Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; 161 ALR 599 at [15].

196. Bunnings submitted that doubt arises in relation to the neck injury claim due to the absence of a contemporaneous complaint and the fact the allegation arose only in the course of litigation.

Fracture to nasal bone and septum

197. Bunnings noted that the plaintiff had undergone septal reconstruction prior to the Bunnings Incident in December 2011, as well as facial surgery in 2006 following the assault in which he sustained a Le Fort fracture to the left maxilla. Taking into account the relevant history of injuries to this area of the plaintiff’s face, Bunnings submitted the plaintiff had failed to establish a causal link between any injuries to the nasal bone and septum and the Bunnings Incident.

198. Again, Bunnings pointed to a lack of contemporaneous complaint with respect to the alleged injury, noting: the plaintiff did not seek immediate medical attention; no reference was made to the Incident when the plaintiff underwent a CT scan six days later; there was no mention of facial pain to Dr Stubbs when seen seven days later; there was no mention of the Bunnings Incident when seen at the Canberra Hospital for a spider bite on 15 February 2012; and there was no mention of the incident when attending his GP for a skin check (which included his face) on 21 February 2012.

199. Dr Albekaa recorded the loose “titanium mesh” on 21 March 2012 but agreed that the plaintiff had told him he had suffered a “heavy strike” (T 1337.40). The plaintiff was then referred to Dr Bertram, an oral and maxillofacial surgeon who, on 7 May 2012, described “palpable plates and screws". In Bunnings’ submission, ‘palpable’ should not be read as ‘loose’. In this respect, Bunnings relied on the evidence of Dr Bowler, who testified that most people who have these plates inserted can feel them (T 1289.21- 22). Bunnings further relied on Dr Bowler’s evidence that he had not seen an orbital plate come loose in 36 years and his questioning (outlined above at [174]-[176]) of Dr Albekaa’s evidence that the plate had in fact come loose at all.

200. Bunnings further questioned the requirement of the plaintiff to have the plate removed as a result of the Bunnings Incident. Citing the plaintiff’s evidence that he had been concerned about the presence of the plate in 2006 (T 185.34-186.9) and had discussed its potential removal with Dr Shields in 2007 (T 187.40), Bunnings noted the contrary medical advice received from Dr Bertram and the plaintiff’s evidence that he nevertheless insisted it be removed (T 218.45). Of particular relevance is the section of Dr Bertram’s letter dated 21 May 2012 that includes the following (Ex. 51 p. 148):

After a lengthy discussion with Mr Ryan, it was clear that he wishes to have the palpable plates removed. I have advised him that removal will not necessarily improve his symptoms and it will cause further scarring and it may worsen his paraesthesia or anaesthesia and he risks infection with any surgery, bleeding and other general surgical anaesthetic complications. There is also a very slight but potential risk of worsening vision or blindness with any operation around his orbit. (Emphasis added)

201. With respect to the force required, Bunnings emphasised the evidence of Dr Delaney regarding a “serious and powerful” force being required, and that of Dr McGlynn that mere “brushing” of the hand would be no force at all and that, while septal deviation was possibly aggravated by the Bunnings Incident, it was unlikely that nasal bone deviation was caused by the incident. Moreover, Bunnings placed emphasis on the following opinion of Dr Bowler:

[A] significant level of force would be required to damage a titanium plate in the infraorbital margin. In circumstances such as a high-speed motor vehicle [accident] or a powerful blow from a contact sport where repeat fracture of the orbital region may have occurred, it is possible to envision a scenario where a titanium plate could possibly be dislodged or fractured.

202. Bunnings also drew attention to the plaintiff’s evidence that he “went forward” following the alleged strike (T 202.6) and submitted at [56] there was an:

[O]bvious inconsistency in a strike of sufficient force to allegedly cause dislodgment of a titanium plate, and a neck injury, apparently causing the plaintiff to fall forward into the direction of where the alleged strike came from.

Diplopia

203. With respect to diplopia, Bunnings submitted the evidence revealed the presence of diplopia preceding the Bunnings Incident. In written submissions, this was supported by the following:

(a) The plaintiff gave evidence that he experienced diplopia in 2006 following the assault, and medical records confirm that his diplopia has continued to some degree since 2006, despite the plaintiff asserting that it had resolved following surgery: at [96], citing T 188-196.

(b) Medical records indicate that the plaintiff has always experienced diplopia looking to the left: at [97], citing Ex. 5 p. 557.

(c) Medical records also indicate that the plaintiff received advice in 2007 that replacing the titanium plate may worsen lateral diplopia: at [98], citing Ex. 5 p. 556).

(d) A medico-legal report prepared in relation to a previous claim refers to double vision following the 2006 assault and includes “diplopia in the left lateral field” as a current symptom as at 2009: at [99], citing Ex. 5 pp. 56 and 59.

(e) A further medico-legal report prepared in 2010 states that the plaintiff reported experiencing “permanent double vision”: at [100], citing Ex. 5 p. 107.

204. In addition, Bunnings noted Dr Bertram found no evidence of diplopia on 7 May 2012 (Ex. 51 p. 148). With respect to the plaintiff’s reliance on Dr Delaney, Bunnings noted Dr Delaney’s concessions in cross-examination that he relied entirely on the history provided by the plaintiff and that this was contradicted by Dr Battlay’s report of 2010 (T 1589-90). It was accordingly submitted that Dr Delaney’s report should be disregarded as it relies upon false assumptions. Shock

205. Bunnings again relied on a lack of contemporaneous complaint in this regard, noting there was no reported psychological injury in 2012. With respect to the plaintiff’s depression, it was submitted that the diagnosis of Mr Nomchong relied upon an inability to work, restricted day to day activities, and ongoing pain levels. Bunnings submitted that the evidence of the plaintiff did not establish any of these factors.

Submissions in Reply

206. With respect to the submissions as to the force of the blow, the plaintiff submitted that the evidence of Dr Albekaa demonstrated there was clearly a fracture which required surgery (Ex. 51 p. 147) and further relied on the evidence given by Dr Matison regarding the relatively light force required to produce a septal deformity requiring correction (Ex. 5 p. 286).

207. The plaintiff submitted that the risk of injury was not farfetched and fanciful and that in this respect Bunnings erroneously conflated the force required to fracture the nose and dislodge the plate, and the force required for septal deviation and epistaxis. The plaintiff pointed to the aspects of Dr McGlynn’s evidence that:

(a) a “hard injury” is not required to cause a blowout fracture to the orbit (T 1244.20- 30);

(b) when a plate “pushes in” it compounds force “like pushing a plunger” more than would be expected for a particular injury (T 1245.10-20); and

(c) a blow to the eyes can cause significant hydrostatic pressure as “you don’t need much force to create significant force with a hydraulic mechanism”, and this could cause displacement of a plate (T 1246).

208. As to the submissions regarding the plaintiff’s line of sight, it was submitted that obstruction could be readily inferred from the photographic evidence. The plaintiff further rejected the submission that the plaintiff “clearly exaggerated the impact”, stating that this submission was not supported by the CCTV, the evidence suggesting a fracture, the evidence of epistaxis, and Ms Southorn’s evidence of the plaintiff’s actions when he returned home.

209. With respect to diplopia, the plaintiff submitted that the basis of the rejection of some or all of Dr Delaney’s reports had not been properly identified. The plaintiff relied further on the report of Dr Steiner who stated that his report was based “entirely upon the evaluation of objective findings” (Ex. 5 p. 338).

210. Dr Steiner attributed diplopia to the Bunnings Incident and MVA 2 and attributed (as did Dr Delaney) its cause to a fourth nerve palsy, the “most obvious” cause of which, the plaintiff submitted, is trauma. The plaintiff further relied on the evidence of Dr Matison and Dr McGlynn.

211. Further, the plaintiff submitted it is “unsurprising” that the restriction on movement led to a depressive illness and relied on the report of Mr Nomchong in this respect.

212. I interpose here to note that, while Dr Steiner’s report does rely on objective medical testing to ascertain the plaintiff’s level of diplopia, the attribution of his medical condition to various incidents are based on the plaintiff’s reporting of those incidents, leading to the issues described above at [74]. Consideration: The Bunnings Incident

Factual Findings

213. As discussed above at [73]-[81], in my view, the plaintiff is an unreliable witness. I prefer the evidence of Ms Schramm that the contact with the plaintiff was in the nature of a brushing contact (T 1077.39) and not a “smack” (T 57.35). I find that when he visited the Bunnings store at Fyshwick his face was brushed by the hand of Ms Schramm when she had her arm outstretched. The contact was slight and trivial and of a brushing nature. I am not satisfied on the balance of probabilities that it caused any injuries or sequalae to the plaintiff.

214. I accept the evidence of Ms Schramm (who was incorrectly referred to in the plaintiff’s submissions as Ms Westlin, see T 1707.13-15). I reject the evidence of the plaintiff in relation to the nature of the contact. The CCTV footage, such as it is, does not detract from my finding that the plaintiff is an unreliable witness.

215. I accept the evidence of Ms Schramm and Ms Westlin that Ms Schramm’s arm was raised and stationery for “seconds” (T 1077.35-36 and T 1090.32-38) before the plaintiff walked into Ms Schramm (T 1077.35-39).

216. The plaintiff, in my view, deliberately exaggerated the impact of the contact.

Consideration on Liability

217. In its Defence filed 15 March 2016, the defendant admitted that it owed the plaintiff a duty of care but denied any breach thereof: at [10]. Further, and in the alternative, Bunnings claimed that any injuries or loss were caused by, to some extent, the plaintiff’s own negligence: at [19].

Was there a breach of the duty of care of Bunnings?

218. The Wrongs Act is the starting point in an action for negligence. There was no issue in this case that the defendant could potentially be liable under s 43 or that the standard of care, as defined in s 42, was applicable. The issues in this case were more confined to the content of the duty of care and whether or not there had been a breach of that duty.

219. The defendant conceded that it owed the plaintiff a duty of care (Defence filed 15 March 2016 at [10]).

220. The obligations of an occupier are set out in s 168 of the Wrongs Act.

221. The test under s 168 is, in substance, the same as the common law, although the factors in s 168(2) groups together a list of factors to consider: see Brozinic at [51].

222. I find there was no breach of the duty of care owed by Bunnings. In coming to this conclusion, I have taken into account the following:

(a) The plaintiff was a legal entrant: s 168(2)(b).

(b) The premises are commercial and open to the public: s 168(2)(c).

(c) The defendant encouraged the attendance of the public on the premises: s 168(2)(d). (d) The plaintiff was an adult with no special requirements (s 168(2)(e)) and an ability to appreciate the dangers posed by “people greeters” (s 168(2)(f)).

(e) There was a trivial degree of contact.

223. In particular, I have taken into account the following considerations:

(a) As to the gravity and likelihood of the probable injury, I have formed the view that it is highly unlikely that an entrant into Bunnings premises would suffer any injury of any significance as a result of coming into contact with an employee when an employee points at an object or in a direction. It is common sense that an employee would be asked by customers where particular items might be located, and a response might involve pointing in a particular direction: s 168(2)(a).

(b) As to the burden for the occupier of removing the danger or protecting the person entering the premises from the danger, compared to the risk of danger to the person, this would be a significant burden. It would appear to involve the proposition that all employees, not only “people greeters”, should be directed to have their hands by their sides at all times: s 168(2)(g).

Damages: The Bunnings Incident

224. It is customary in the usual case of a judgment on personal injuries to assess damages at this point. This is in the event of error on liability. I do not intend to deal with the question of the damages I would have awarded. In this case, in relation to this incident, however, such an assessment of damages is entirely dependent on findings of credit. It would be artificial to assess damages in relation to this incident. The plaintiff’s lack of reliability or veracity in relation to this incident has cast a forensic shadow over his evidence generally.

Motor Vehicle Accident 1 (MVA 1 – 2013)

Introduction

225. It was agreed between the parties that, at approximately 3:30pm on 20 December 2013, at a roundabout of Coranderrk Street and Parkes Way, a motor vehicle accident occurred (Originating Claim at [3], Defence at [2]). The defendant accepted liability for the accident and admitted breach of duty (T 1638.10-13).

226. In his Statement of Claim dated 21 August 2017, the plaintiff alleged he suffered the following injuries as a result of MVA 1:

(a) aggravation of neck injury;

(b) exacerbation of cervical spondylosis at C5/6 and C6/7;

(c) aggravation to pre-existing injury to right knee and ankle;

(d) injury to his back; and

(e) shock.

227. It was alleged that the plaintiff suffered the following disabilities as a result of MVA 1:

(a) restricted movement in flexion and extension; (b) decreased neck movement;

(c) pain in the cervicothoracic junction;

(d) pain radiating to the left shoulder;

(e) pain on the inner side of his arm on the right side;

(f) headaches;

(g) developing symptoms of blurring in both eyes;

(h) generalised constant pain as well as radiating to his face on the left side;

(i) weakness in the right upper limb when picking up items;

(j) spasm in the muscles of both hands, the right greater than the left;

(k) dizziness;

(l) painful, unstable and swelling right ankle (made worse);

(m) painful, unstable and swelling right knee;

(n) recurrent depressive illness; and

(o) inability to continue to work as a security guard and to undertake nightclub activities and having to reduce his chiropractic work.

228. The plaintiff claimed for past and future economic loss with respect to his employment as a security guard and chiropractor. The plaintiff further claimed for out of pocket expenses and a Griffiths care component.

Medical Baseline

229. In oral submissions, it was agreed that, prior to 20 December 2013, the plaintiff still suffered a degenerative spine condition; he was suffering some level of psychological difficulty; he still experienced some diplopia; and he had injured his right knee, ankle and elbow (T 1644.25). The NRMA defendants added that the plaintiff, prior to MVA 1, also suffered from longstanding dizziness and bilateral shoulder and wrist injuries, which resulted in a substantially impaired earning capacity (T 1645.31-38). Counsel for the plaintiff stated that the ongoing dizziness was related to the plaintiff’s convergence defect, which also gave rise to his diplopia (T 1651.45-1652.5).

Evidence

Lay Evidence

The plaintiff

230. The plaintiff gave evidence that, on 20 December 2013, he was driving from Civic towards his home when he was hit by a car driven by a female driver (T 74.44-75.13), and impact was made with the left-hand side of his car (T 77.33). The plaintiff gave evidence that he had entered the roundabout and was looking right, with the intention of turning right, when the other car strayed into his path and collided with the left-hand passenger side of his car (T 489-490).

231. It was the plaintiff’s version of events that the driver of the other vehicle, Ms Jade O’Halloran, spoke to the plaintiff after the collision and confessed that she had been in a number of other accidents and that she had been distracted (T 77.24-30). This evidence arose after counsel for the NRMA defendants objected to the plaintiff giving evidence that the other driver was distracted prior to the collision (T 75-77). Following the objection, the plaintiff stated that he “had a conversation” and that “he [the plaintiff’s barrister] doesn’t know that” (T 77.1-10).

232. It was the plaintiff’s evidence that Ms O’Halloran admitted liability immediately after the collision. Nevertheless, it was common ground between both parties that breach of duty of care was first admitted in relation to the accident on 25 March 2015 (T 497.11-22).

233. As a result of the impact, the plaintiff stated: “I may have just slightly touched the windscreen – the driver’s side window” (T 77.46); he reported subsequently feeling pain in his neck, right knee and right ankle (T 78.10). The plaintiff explained that he received a “bit of a jolt” (T 490.27) but he did not sustain a direct blow to this neck (T 493.31). The plaintiff described the pain levels, out of ten, as 6, 3-4, and 3-4 in respect of his neck, knee, and ankle (T 78.17-22). The plaintiff had pre-existing pain in his knee but gave evidence that this substantially increased after the accident (T 80.30)

234. The plaintiff gave evidence that he continues to have pain in his neck to this day, but that the level has decreased since the incident (T 78.40). As to the other injuries, the plaintiff deposed that the ankle pain lasted for a “few weeks” (T 78.25) and that he continues to have knee pain, but that he could not attribute it exclusively to the one event (T 78.29).

235. Following MVA 1, the plaintiff stated he underwent a number of treatments with physiotherapists (T 79.5). The plaintiff accepted that he erroneously told medical professionals that he was receiving massages and physiotherapy treatment once a week (T 523). He denied that this was deliberate exaggeration to enhance his claim (T 523.35).

236. In cross-examination, the plaintiff accepted that, by the Eastlake Incident, any ankle pain resulting from the fall at Cameron House on 19 April 2012, or from any intervening incident, had resolved (T 487-488).

237. The plaintiff agreed with records which indicated that he returned to work following the accident on approximately 5 January 2014 and worked part-time until 26 February 2014, after which he was not working (T 513).

Jade O’Halloran

239. Ms Jade O’Halloran gave evidence of a collision in which she was involved on the afternoon of 20 December 2013 on a roundabout on Parkes Way, Canberra (T 1096.43-1097.10). Ms O’Halloran gave evidence that she was driving her vehicle in the left lane of the two-lane road and was attempting to turn right before she collided with another car (T 1097.35). Prior to the collision, Ms O’Halloran became aware, once she was on the roundabout, of a Chrysler in her rear-view mirror (T 1097.41). Also prior to the collision she was aware of an accident on her left (T 1098.6).

240. Ms O’Halloran’s evidence was that a collision occurred in the form of “a very minor bump” (T 1098.17) after which she and the plaintiff both pulled over and approached each other. The plaintiff then spoke to Ms O’Halloran “abruptly” about the incident before Ms O’Halloran returned to her car (T 1098.35-1099.9).

241. Ms O’Halloran recalled police officers attending the scene and speaking to both herself and the plaintiff; she was asked if she was injured or required an ambulance which she declined. Ms O’Halloran could not speak to the conversation the police had with the plaintiff (T 1099.25-39).

242. Ms O’Halloran gave evidence that the plaintiff did not initially indicate he may have been injured (T 1099.15). At a subsequent point, the plaintiff informed her he “had a sore neck”. Ms O’Halloran did not see anything to suggest this was the case and her reaction was “shock” (T 1099.26-29). In cross-examination, Ms O’Halloran estimated this to be 20 to 30 minutes after the collision (T 1103.38).) Ms O’Halloran’s evidence was that she did not think it was possible the plaintiff had suffered an injury given the nature of the collision, which she described as “very minor” (T 1102.10-14).

243. In cross-examination, Ms O’Halloran stated, with reference to Exhibit 13 which depicted the damage to the cars, that the damage was “slight” (T 1103.23-35).

244. Also under cross-examination, Ms O’Halloran denied that she was distracted by the other accident at the time of the collision (T 1104.7). She accepted that collision was deemed her fault (T 1105.24) and she “allowed for the possibility” that that was the case (T 1105.31). She further accepted she was likely travelling at about 60km/h at the time of the collision, when she was nearly halfway into the roundabout (T 1105.15, 1106.5).

245. On re-examination, Ms O’Halloran noted she completed her insurance claim form before seeking legal or other advice (T 1106.18).

Expert Evidence – MVA 1

246. It should be noted that, as the two individuals involved in MVA 1 and MVA 2 were both insured by NRMA, they were represented by the same counsel and a significant portion of the medical evidence for each incident overlapped. As such, some of the expert evidence relevant to MVA 2 is included below.

Dr John Bentivoglio

247. Dr Bentivoglio was retained by the plaintiff. His report, referred to above at [155], attributed 50% of the plaintiff’s left shoulder injury to MVA 1, noting that there was no evidence of a shoulder injury prior to 2013 (Ex. 51 p. 20). Further, 50% of the right ankle disability was attributed to MVA 1 (Ex. 51 p. 20). In relation to his other injuries, Dr Bentivoglio did not individually assess the impact of MVA 1. Dr Bentivoglio noted: “On physical examination there is not a great deal to find. This is generally the case for the type of injuries that Mr Ryan has sustained” (Ex. 51 p. 17).

248. When cross-examined by Mr Pappas for NRMA defendants in relation to his report, Dr Bentivoglio gave evidence that no mention was made of receiving blow to the head in MVA 1 (T 1469.27). Dr Bentivoglio also stated that the plaintiff denied having any previous back injury (T 1467.44).

249. Dr Bentivoglio stated that it was possible to have sustained “a little bit of neck injury” in the circumstances described by Ms O’Halloran but considered a back injury less likely (T 1467.12-20).

250. Dr Bentivoglio’s opinion was that prior to MVA 1, the plaintiff was suffering a degenerative condition affecting his cervical spine and a similar condition affecting his shoulders. Dr Bentivoglio agreed that, even absent any intervening car accident, the condition of the plaintiff’s neck and shoulder was likely to have become progressively worse (T 1470.24-38).

251. When cross-examined, Dr Bentivoglio confirmed that the plaintiff, in his original consultation, did not mention that he suffered a head injury in the collision (T 1472.15- 16); made no reference to a shoulder injury (T 1471.46-1472.2); and did not indicate that he suffered from diplopia (T 1472.22-23). While the plaintiff did raise the issue of a head injury during a later consultation in 2015, even when offered the opportunity to correct the previous report, he made no reference to a shoulder injury or diplopia.

252. When asked about his opinion with respect to the impossibility of “untangling” the various causes of aggravation, the doctor stated it was not possible on a medical investigation as the plaintiff had simply had too many (T 1474.34-40).

Dr Leon Le Leu

253. Dr Le Leu was retained by the plaintiff. His 2016 report, referred to above at [149], stated: “[the plaintiff] believes he developed ‘a sort of whiplash injury’ due to hitting his head on either the mirror or the window” (Ex. 51 p. 65). The plaintiff further reported to Dr Le Leu that he could not remember his right shoulder or elbow being a problem, but that he did injure his right knee and ankle (Ex. 51 p. 66). Dr Le Leu attributed 20% of the plaintiff’s spinal problems to MVA 1 and was “uncertain” as to how much the accident contributed to the plaintiff’s right shoulder, right elbow, right knee and left knee injuries (Ex. 51 p. 81). He ranked MVA 1 as the third most serious incident experienced by the plaintiff (Ex. 51 pp. 81-82).

254. When cross-examined by Mr Pappas in relation to his report, Dr Le Leu accepted that he had discounted the plaintiff’s assertion that right ankle injuries had arisen from the collision, due to the plaintiff’s history that he fell at RSM Bird Cameron House in 2012 (T 1502.27-34). Further, Dr Le Leu accepted that the plaintiff stated he did not recall having right shoulder or elbow injuries, until prompted by Dr Le Leu in relation to the information he had received from the plaintiff’s solicitors (T 1502.44-1503.13).

255. Dr Le Leu agreed that it seemed “he [the plaintiff] tried to find an explanation for how he might have had such an injury and in the end [Dr Le Leu wasn’t] convinced he did [have that injury] at all” (T 1503.15-16).

256. While acknowledging that he did not place much weight on a person’s use of an invalid parking permit, Dr Le Leu had operated under the assumption that the plaintiff received an invalid parking permit between MVA 1 and the Eastlake Assault. Dr Le Leu agreed that it would change his view if the plaintiff had in fact received his invalid parking permit in 2010 (T 1505.11-18).

257. Dr Le Leu gave evidence that, in the circumstances alleged by the defendant, and assuming there to be no blow to the head, it was “extremely unlikely” that the plaintiff suffered a whiplash injury in MVA 1 (T 1506.41).

258. Dr Le Leu accepted that if the plaintiff had not in fact suffered a whiplash injury and a blow to the head, then the attribution of 20% should in fact be 0% (T 1512.45-1513.5). In re-examination, Dr Le Leu accepted that a blow to the head was not necessary for there to be a neck injury, provided there was sufficient movement of the head (T 1539.34-1540.2)

Dr David Gorman

259. Dr Gorman was retained by the plaintiff. His 2017 report, referred to above at [135], concluded that MVA 1 resulted “in some aggravation of [the plaintiff’s] cervical spondylosis with some aggravation to a pre-existing injury of the right knee and ankle as well as injury to the right elbow” (Ex. 51 p. 98).

260. When cross-examined by Mr Pappas, Dr Gorman was asked to assume the following factual scenario in relation to MVA 1 (T 1266.44-1267.5):

Mr Ryan was negotiating a roundabout here in Canberra, another vehicle was doing likewise in the adjoining lane, that the vehicles were travelling at most at 60 kilometres per hour – it may have been a little less – and there was a side swiping coming together at a very narrow angle, with the result that there was a small amount of panel damage to the front left mudguard of Mr Ryan’s vehicle and a small amount of panel damage to two side panels of the other vehicle.

261. Assuming this factual scenario, Dr Gorman agreed it is not the sort of collision that would cause “any significant aggravation” of cervical spondylosis (T 1267.12). However, he rejected the possibility that the plaintiff’s neck pain may be disingenuous given the contemporaneous notes of the plaintiff’s general practitioner (T 1267.40-46).

Dr Glen Smith

262. Dr Smith was retained by the plaintiff. His report, prepared in 2018 and referred to above at [141], gave the following summary of the plaintiff’s recollection of the 2013 motor vehicle accident (Ex. 51 p. 107):

Mr Ryan stated that in the accident on 20 December 2013 he was hit by another car on a roundabout and “I got a whack on my neck” and he also had a “sore elbow” in relation to that accident. Mr Ryan stated that he did not consider that there were significant ongoing difficulties associated with those injuries, but at that time “it was an aggravation of what was there already”.

263. The plaintiff reported to Dr Smith that MVA 1 did not significantly impact his psychological state; however, it reportedly aggravated his “already impaired functioning” (Ex. 51 p. 115).

264. In respect of his report dated 7 February 2018, Dr Smith was cross-examined by Mr Pappas for the NRMA defendants. In respect of his opinion that the plaintiff was suffering low grade depressive symptoms but not a major depressive disorder at the time, Dr Smith confirmed he was reliant on the accuracy of the plaintiff’s self-reporting and that previous psychometric testing performed on the plaintiff did not have a comprehensive validity scale (T 1302.31-43). Dr Smith considered that, as the plaintiff reported successful treatment historically and presented with improvement, exaggeration was less likely. He accepted that exaggeration of attribution is not something that is readily perceived (T 1303.26-43).

265. Dr Smith accepted that MVA 1 was fairly inconsequential (T 1305.7) and, absent a causal connection, MVA 2 was of little consequence given the plaintiff’s history (T 1309.38)

266. Dr Smith agreed that the plaintiff had not told him of litigation he was involved in or of significant debts he had incurred, which Dr Smith agreed would likely contribute to a depressive illness (T 1309.18).

Dr Michael Delaney

267. Dr Delaney was retained by the plaintiff. Dr Delaney noted in his report dated 22 September 2016 and referred to above at [161] that MVA 1 did not result in any facial injuries and did not change the plaintiff’s symptoms in relation to diplopia and vision problems (Ex. 51 p. 40). When cross-examined by Mr Pappas for the NRMA defendants in relation to diplopia, he confirmed his view (T 1598.15-18).

Dr Mohamad Mourad

268. Dr Mohamad Mourad is a consultant orthopaedic surgeon retained by the NRMA defendants who prepared a report dated 31 January 2018, following an examination of the plaintiff on 11 January 2018.

269. Dr Mourad’s report relied upon a physical examination of the plaintiff, as well as medical records. Dr Mourad concluded that there was “no evidence of permanent injury or physical conditions suffered by Mr Ryan as a result of the motor vehicle accidents” (Ex. 5 p. 335). This was in reference to both the 2013 and 2015 motor vehicle accidents. According to Dr Mourad, any ongoing disability, incapacity for work and need for treatment were age-related or a result of pre-existing or degenerative conditions (Ex. 5 p. 336).

270. Dr Mourad confirmed that the descriptions of the injuries and collisions in relation to MVA 1 and MVA 2 were the plaintiff’s own words (T 1350.19-46). With respect to the latter incident, Dr Mourad confirmed the plaintiff made no other complaint beyond the aggravation of a neck injury (T 1351.10).

271. In cross-examination by Mr Menzies QC for the plaintiff, Dr Mourad accepted that, although there may not be any objective sign of pathological change with respect to a complaint of an aggravation of symptoms, aggravation of symptoms cannot be dismissed (T 1353.24). Dr Mourad accepted that, if there was an aggravation of symptoms, a causal connection with the incident could not be ruled out (T 1354.3). In re-examination, Dr Mourad gave evidence that, where no evidence of pathology can be found, patients often complain of “life-long or prolonged symptoms” (T 1354.25).

Dr Ian Kelman

272. Dr Ian Kelman is an orthopaedic specialist who, at the request of the NRMA defendants, prepared a report dated 22 June 2015 following a consultation with the plaintiff on 28 May 2015.

273. Dr Kelman was provided medical records and conducted his own interview and physical examination of the plaintiff. He concluded that the injuries alleged by the plaintiff were 90% attributable to pre-existing conditions, and 10% attributable to MVA 1 (Ex. 5 p. 303). Further, he considered that, when examined in mid-2015, the plaintiff’s injuries had “stabilised to a level that existed prior to his accident of 20 December 2013” (Ex. 5 p. 305).

274. Dr Kelman confirmed that, while he had made partial attribution to the injuries to the plaintiff’s neck and knee, there was no pathology with respect to shoulder and ankle (T 1364.40). Dr Kelman rejected the proposition that his percentage attribution of causation in relation to MVA 1 (10%) was speculation, and noted that although the complaint of aggravation may have continued, it was also to be expected that the pre-existing condition would continue to deteriorate as well. Dr Kelman considered the deterioration to be the more significant factor in respect of the plaintiff’s condition (T 1366-7).

275. In re-examination, Dr Kelman agreed that the C5/6 posterior disc bulge observed by Dr Laguna in February 2014 was consistent with the continuation of the degenerative process (T 1370.40). Dr Kelman also gave evidence that his percentage apportionment would not change if in fact there was no injury to the knee, given the evidence of the condition of the knee (T 1371.29).

Dr Derek Lovell

276. Dr Derek Lovell is a consultant psychiatrist retained by the NRMA defendants who prepared a report dated 13 December 2017, following a consultation with the plaintiff on 5 December 2017.

277. In his report, Dr Lovell noted that it is likely the plaintiff suffered from a depressive disorder which, at the time of examination, was largely treated (Ex. 5 p. 319). Dr Lovell opined that the plaintiff did not suffer “any significant psychological injury” as a result of both MVA 1 and MVA 2 (Ex. 5 p. 319). Rather, Dr Lovell noted that:

There are multiple losses in 2014, including bankruptcy, relationship breakdown and the decision to close his business as a night club owner. There have been multiple earlier injuries which were very significant which account for the majority of his physical difficulties and explain his psychological symptoms (Ex. 5 p. 319).

278. Dr Lovell produced a further report also dated 13 December 2017 which specifically responded to the report of Mr Nomchong (summarised above at [167]-[171]). In this report, Dr Lovell reiterated the “significant non-injury factors” that have contributed to the plaintiff’s deterioration in mental health. Dr Lovell stated: “These are far more significant in his symptoms and are not compensable” (Ex. 5 p. 323).

279. Dr Lovell stated that “there has been a significant improvement since [the plaintiff] was assessed by Mr Nomchong in mood” (Ex. 5 p. 323).

280. In respect of the percentages attributed to each incident by Mr Nomchong, Dr Lovell stated the following:

I am not of the view that the percentages assigned accurately represent causation and consider the attribution of 40% of his difficulties to [MVA 2] to be inaccurate. The majority of his difficulties appeared to have followed the assault at Eastlake Football Club on 15 February 2014. The Bunnings incident caused some transient difficulties as did the motor vehicle accident of 20 December 2013. The deterioration in his vision is unexplained but related by Mr Nomchong to the MVA of 31 August 2015. I would state that it is almost impossible to attribute percentages and I believe the history provided by Mr Ryan together with the GP notes do not support the percentage allocations to the subject accidents and assaults made by Mr Nomchong. What can be said with reasonable certainty is the majority of his difficulties were pre-existing from multiple assaults and earlier road traffic accidents. … The unreliability of the history due to memory difficulties and the multiple previous events make it difficult to definitely comment on causation.

Dr Michael Steiner

281. Dr Michael Steiner is an ophthalmologist who was retained by the NRMA defendants. He prepared two reports dated 27 August 2018 and 11 February 2019. Dr Steiner was not called to give oral evidence during the hearing.

282. Dr Steiner examined the plaintiff on 27 August 2018 and provided the following conclusions (Ex. 5 p. 340):

[The plaintiff] has had numerous accidents at least two of which have resulted in permanent diplopia, the Bunnings accident had some horizontal diplopia and the car accident in 2015 caused both horizontal and vertical diplopia and the most recent car accident merely exacerbated the vertical diplopia. What is significant is that he is also a severe diabetic and at the time he was assessed at Canberra Hospital the note was made that his blood sugar was over 20. This is extremely high, and he says that at the time he had an infection and had taken three lots of antibiotics and then he purposely stopped his diabetic treatment to see if the infection recurred. It should be noted that diabetes, especially severe diabetes with high blood sugar can cause microvascular problems and cause cranial nerve problems which can cause extraocular muscle problems. … A computerised diplopia chart was performed and this showed diplopia in all positions of gaze. It is of course extremely difficult to apportion his diplopia to the various incidents.

283. Dr Steiner stated that the plaintiff’s disabilities, incapacity and need for treatment “could well be in part related to his diabetes” (Ex. 5 p. 342).

Submissions of the Plaintiff

284. In written submissions at [52], it was submitted that the plaintiff sustained the following injuries as a result of MVA 1:

(a) aggravation of pre-existing neck injury;

(b) exacerbation of cervical spondylosis at C5/6 and C6/7;

(c) aggravation of pre-existing injury to right knee and ankle; and

(d) right elbow injury.

285. The plaintiff accepted that the neck, back, knee and ankle injuries were pre-existing. It was submitted that the incident aggravated those conditions and that those aggravations continue: at [54].

286. The plaintiff accepted that he continued to work after MVA 1: at [343]. Submissions of the NRMA defendants

287. At the outset of the NRMA defendants’ submissions, it was emphasised that, in assessing MVA 1, the Court should have regard to the following (at [10]):

(a) the nature of the collision;

(b) the apparent lack of immediate injury;

(c) the plaintiff’s relevant pre-existing conditions;

(d) a comparison of the complaint and the oral evidence;

(e) the fact that by the Eastlake Incident, the CCTV footage indicated the plaintiff was moving freely, without any apparent restriction; and

(f) the evidence of the plaintiff that he earnt more after MVA 1 than he had in the preceding 18 months.

288. In the NRMA defendants’ submission, the plaintiff’s credibility in respect of MVA 1 is undermined in various respects. First, the NRMA defendants submitted that the plaintiff’s evidence of an alleged conversation with Ms O’Halloran where she supposedly said that she was distracted and has had “lots of car accidents” (T 77.28) was the first ever account of this conversation, and relevantly, did not appear in the plaintiff’s statutory declaration of 13 March 2015 at a time when the insurer had not admitted breach of a duty of care.

289. Second, the NRMA defendants pointed to the plaintiff’s reports of impact to his head to Dr Mourad, Dr Le Leu, and Dr Smith. In particular, the plaintiff told Dr Smith that he sustained a “whack to the neck”. The NRMA defendants contrasted this with the plaintiff’s denials in oral evidence of a direct blow to his neck or lump on his head (T 493.39), followed by subsequent evidence which appeared to cast doubt on that answer (T 494.7).

290. Among other matters, the NRMA defendants also relied on the absence of any oral evidence of injury to the back, shock, right elbow injury, or evidence of the following disabilities identified in the Statement of Particulars dated 18 February 2019:

(a) restricted movement in flexion, extension and lateral flexion;

(b) decreased neck movement;

(c) pain in the cervicothoracic junction;

(d) pain radiating to the left shoulder;

(e) generalised constant pain as well as radiating to his face on the left side;

(f) weakness in the right upper limb when picking up items;

(g) spasm in muscles of both hands, with the right worse than the left;

(h) painful, unstable and swelling right ankle; and

(i) pain over the anterior and posterior aspects of the right ankle and a tendency for the ankle to roll.

291. With respect to how the accident occurred, the NRMA defendants noted that, as conceded by the plaintiff, the pleadings are incorrect insofar as they allege Ms O’Halloran was turning at the time (T 489.15). Rather, in the defendants’ submission, the evidence supports the fact that the impact occurred in a “relatively insignificant sideways glancing manner”: at [129]. This submission was made with reference to Exhibit 13, which depicts both vehicles post-impact. The defendant also relied upon Ms O’Halloran’s evidence in this respect, noting she suffered no injury and could not conceive that the plaintiff would have been injured either.

292. The NRMA defendants also pointed to certain difficulties with the account given by the plaintiff, including: his uncertainty about the number of lanes on the road; the inconsistency over the positioning of the cars; failure to recall aspects of his interactions with Ms O’Halloran or others at the scene; and lack of demonstration to Ms O’Halloran that any injury was sustained.

Injuries

293. With respect to the alleged injuries, the NRMA defendants submitted that the evidence given by the plaintiff of soreness in his neck, right knee and right ankle were significantly different from the injuries pleaded and particularised, as well as significantly different to the injuries reported to a number of doctors. It was submitted that the reference to having to wear orthotics, arising for the first time in oral testimony, was a concoction.

294 . To the extent that there were in fact any injuries, the NRMA defendants relied on the CCTV footage of the Eastlake Incident which, it was submitted, demonstrates the plaintiff moving in an unrestricted fashion approximately seven weeks after MVA 1. The plaintiff also gave evidence that earlier that evening, the 15 February 2014, he had been at his nightclub attending to a collapsed roof. Accordingly, it was submitted that any injury had resolved itself within seven to eight weeks.

Medical Evidence

295. The NRMA defendants relied on the evidence of Dr Gorman that the nature of the collision was unlikely to have caused significant aggravation of underlying cervical spondylosis; that it was probably short lived; and that, following the Eastlake Incident, the neck complaints were consistent with those in 2010 (as discussed in the context of the Eastlake Incident below).

296. The NRMA defendants noted the plaintiff’s characterisation of MVA 1 to Dr Smith as being dismissive of it as the source of any significant distress.

297. With respect to the various aspects arising in cross-examination of Dr Bentivoglio, it was submitted the plaintiff’s accounts were discordant with what was provided to various doctors preparing medico-legal reports, and that the accounts were undermined by an incomplete history and were inconsistent with the circumstances of the motor vehicle accidents.

298. With respect to Dr Le Leu’s evidence, the NRMA defendants relied on the matters revealed in cross-examination, outlined above at [254]-[258]. Further, with respect to the alleged right shoulder injury, reliance was placed on the evidence adduced by Mr Kelleher for Eastlake that the plaintiff had been suffering bilateral shoulder pain since 2007.

299. The submissions conclude that the disabilities alleged are fictious and the particulars are overreaching and misleading. It was submitted the plaintiff has “consistently and continuously overstated the aftermath of what was a very minor collision”. To the extent that there was any injury, it was submitted that it is impossible to establish the extent of any aggravation and for what period.

Assessment of Damages

300. The NRMA defendants submitted that, whatever sequelae of injury may have attended MVA 1, by 15 February 2014, the plaintiff “was effectively back to ‘normal’, bearing in mind, of course, that ‘normal’ for Mr Ryan meant in a state of ongoing pain and partial disability” due to his numerous previous injuries and accidents: at [44]. Therefore, the defendant submitted that, if the Court does find that the plaintiff suffered any injuries as a result of MVA 1, they were “well and truly resolved … within seven or eight weeks”: at [164].

301. Further, at [45] of their written submissions, the NRMA defendants submitted that, in terms of the impact of the accident on the plaintiff’s earning capacity, the Court should take into account:

(a) the plaintiff’s assertion that he intended to give up the nightclub business regardless of the accident; and

(b) the fact that, prior to 20 December 2013, the plaintiff was only working on average 5-7 hours per week as a chiropractor due to pre-existing health conditions.

Submissions in Reply

302. Counsel for the plaintiff submitted a document with submissions in reply in relation to both MVA 1 and MVA 2. The submissions focused on the credibility issues in the case (discussed above) and reiterated earlier submissions in relation to psychological injuries and causes of diplopia. A small section at the end of the document referred to medical evidence in relation to faecal loading and sleep apnoea but failed to relate either of these medical issues with one or both of the motor vehicle accidents.

303. The submissions in reply conclude with the following paragraph:

The defendant’s liability arises out of each of the 2 MVA’s in 2013 and 2015.They each caused the Plaintiff to either suffer diplopia or to continue it. Liability has been admitted in each case. A judgment must follow because the negligent conduct resulted in identifiable damage which was, in each event, caused serious injury [sic]. The quantum and apportionment overall are a matter for the court.

Consideration: MVA 1 (2013)

Factual Findings

304. As discussed above at [73]-[81], in my view, the plaintiff lacks credibility and is an unreliable witness. I prefer the evidence of Ms O’Halloran regarding the accident and the surrounding circumstances and conversations. I find that on 20 December 2013 a collision occurred between the plaintiff’s vehicle and the defendant’s vehicle when the defendant’s vehicle came into contact with the plaintiff’s vehicle. The impact was minor.

305. Consequent upon accepting Ms O’Halloran’s version of the accident, the medical evidence, discussed above at length, would indicate, and I find that the plaintiff is unlikely to have sustained any injuries of ongoing significance in this motor vehicle accident and any injury suffered in the accident is now fully resolved. 306 . In assessing whether the plaintiff suffered injury and in assessing what disabilities would flow from the accident, I have had regard to the following:

(a) the nature of the collision;

(b) the plaintiff’s apparent lack of injury immediately following the collision;

(c) the plaintiff’s pre-existing injuries;

(d) the detailed medical evidence outlined above; and

(e) CCTV footage of the plaintiff approximately seven weeks later in which he is apparently moving without restriction at Eastlake Football Club.

Consideration on Liability

307 . In the Defence filed 27 July 2018, Jade O’Halloran (The First Defendant, SC 312 of 2017) admitted breach of duty of care: at [3]. It was denied that as a result of the breach, the plaintiff suffered injury, loss and damage: at [6].

308. In written submissions, the NRMA defendants conceded that some “very small measure” of general damages and medical expenses should be awarded to the plaintiff: [60].

Damages: MVA 1 (2013)

Submissions

309 . In relation to this motor vehicle accident, the NRMA defendant accepted that it would be appropriate to award some very small measure of damages. It was submitted “something in the nature of general damages for a period of weeks at most, coupled with out-of-pocket medical and other expenses relating to the few medical attendances and diagnostic procedures undertaken by the plaintiff immediately after the accident and prior to the Eastlake Club incident”: at [60]. The defendant submitted that $5,000- $10,000 for minor soft tissue aggravation, as well as $1,000-$1,500 for investigation, would be an appropriate award of damages (T 1648).

Determination

310 . I accept the defendant’s submissions in relation to damages as the submissions accord with my view of the evidence. I reject the plaintiff’s submissions in this regard, and I find on the balance of probabilities that the plaintiff has not proved any other damage. I allow interest on the whole of the general damages. I allow interest for seven years at two percent.

Head of damage Amount

General damages $8,500

Medical expenses $1,500

Past interest on general damages $1,190

Future treatment $0

Past economic loss $0 Future economic loss $0

The Eastlake Incident

Introduction

311 . It was agreed between the parties that, on 15 February 2014, the plaintiff was a patron at a sports social club operated by Eastlake Football Club Limited. The nature of the interaction between the plaintiff and staff of the club was contested. It was alleged by the plaintiff that he was falsely imprisoned and assaulted by an employee of the defendant in “tripping, falling on him and restraining him”.

312 . In a Statement of Claim dated 8 February 2017, the plaintiff alleged the following injuries were suffered as a result of the assault:

(a) cervical, thoracic and lumbar spine injury;

(b) left shoulder injury;

(c) shock;

(d) stress;

(e) chest injury;

(f) left knee injury;

(g) left ankle abrasion and injury;

(h) right elbow injury;

(i) neck pain;

(j) right groin injury;

(k) occipital headaches; and

(l) reduction in vision with respect to clarity.

313 . It was further alleged that the assault caused the following disabilities:

(a) difficulty concentrating;

(b) anxiety and depression;

(c) bilateral arm weakness and pain and sensory changes;

(d) reduced range of motion in neck, shoulders, lumbar spine, cervical spine;

(e) neck pain;

(f) lower back pain;

(g) left knee pain and development of pain in the right knee secondary to the left knee injury;

(h) reduced grip strength;

(i) sleep disturbances; (j) poor memory;

(k) reduced vision;

(l) difficulty with self-monitoring and correction;

(m) slowed speed of processing;

(n) delayed memory of both verbal and visual material;

(o) right trochanteric bursitis;

(p) need for domestic assistance;

(q) inability to work as he previously had; and

(r) need to undergo treatment.

314. In respect of the alleged false imprisonment, it was alleged that the plaintiff suffered the following injuries:

(a) shock; and

(b) stress.

315. It was alleged the following disabilities arose as a result of the alleged false imprisonment:

(a) anxiety and depression; and

(b) need to undergo treatment.

316. As a result of the above, the plaintiff sought damages in relation to:

(a) past and future economic loss relating to his inability to continue working “as an entrepreneur businessman”;

(b) out of pocket expenses;

(c) a Griffiths care component;

(d) loss to superannuation contributions;

(e) exemplary damages; and

(f) aggravated damages.

317. Eastlake denied liability for the false imprisonment and assault. They further denied the particulars of the alleged injuries and allegations of loss.

Medical Baseline

318. In oral submissions, counsel for the plaintiff submitted that the plaintiff’s general health status prior to the Eastlake Incident was essentially the same as it has been prior to the first motor vehicle accident, plus the aggravations of that accident (T 1654.12-23). This included that the plaintiff continued to suffer from a degenerative spinal condition; psychological issues; injuries to his right ankle and knee; and ongoing and interrelated problems of convergence, dizziness, and diplopia. Ongoing psychological issues and tenderness in the neck in particular were attributed to the earlier two incidents that are the subject of these proceedings (T 1656.11-18). Counsel for Eastlake accepted these pre-existing conditions but raised the difficulty in that the plaintiff had not clearly set out the nature of the psychological difficulties. Furthermore, counsel for the defendant highlighted the longstanding reduced working capacity of the plaintiff, primarily due to the spinal condition; the ongoing problems with his arms, shoulders, and elbows; and the longstanding reports of memory and concentration issues (T 1657-1662).

Evidence

Lay Evidence

The plaintiff

319. The plaintiff gave evidence that he arrived at the Eastlake Football Club at approximately 11:45pm on 15 February 2014 to meet his partner at the poker machines (T 80-81). The plaintiff had arrived after leaving his nightclub, following its roof collapsing (T 81.30). The plaintiff decided to collect some change to allow both Ms Southorn and himself to play and approached a counter to request $200 in $1 coins, for which he gave an employee four $50 notes (T 82.34-37). The employee having insufficient coins in the vending machine to meet the request, produced a bag of $400 in $1 coins. The plaintiff’s evidence was that he then produced a further $200 in exchange for the entire bag (T 82.45-47).

320. The plaintiff gave evidence that he then made a further request to reduce certain larger notes he had into smaller denominations, giving her a further $300. The employee then left to go into another room to collect additional notes (T 83.2-8).

321. The plaintiff’s evidence was that at this point a manager appeared and requested he return the $400 in coins, which the plaintiff refused, stating “it’s not your money, it’s my money” (T 83.30-35). It was the plaintiff’s evidence that the manager refused to return the $300 in notes until the $400 in coins was returned. The plaintiff then indicated he would call the police (T 86.5-45).

322. After Ms Southorn had left the premises, the plaintiff left the club to place the coins in his car and returned to collect the $300. The staff of the club continued to refuse returning the $300 and the manager, his assistant and a security guard “forcibly” prevented the plaintiff from leaving (T 86-7). It was the plaintiff’s evidence that he told an employee he wanted to get some “fresh air” but he was not allowed to leave (T 87.9- 16). The $300 was placed on a table near the front of the club and at one point the plaintiff placed the money in his pocket and attempted to leave again. He was prevented from leaving and was “pushed” back (T 87).

323. The plaintiff described being followed around the club by staff and at one point being tripped by a staff member behind him and causing him to fall over (T 88). It was the plaintiff’s version of events that he had been tripped and then pushed, and, falling to the ground, he turned to protect himself (T 754.37-43). The plaintiff denied turning to strike the staff member (T 758.4).

324. While the plaintiff was under cross-examination by Mr Kelleher for Eastlake, counsel for the plaintiff, Mr Menzies QC, made it clear that there was significant disagreement about the interpretation of what is depicted in the CCTV footage (T 756). Where Mr Kelleher suggested that the CCTV footage depicted the plaintiff “striking out” at Mr Colangelo, the plaintiff responded: “getting my balance, I’d suggest” (T 755.44-47).

325. It was the plaintiff’s evidence that the police subsequently arrived, and he left the premises with his money (T 88-9). The plaintiff returned to his nightclub and wrote down the events of the evening in the Incident Register that became Exhibits 2 and 20. In cross-examination, the plaintiff gave evidence that he could not recall whether or not he had been prevented from leaving the premises prior to the $300 being taken (T 739.7).The plaintiff further accepted that to the extent of any inconsistency between his account and the CCTV footage, the footage is to be preferred with respect to physical movements (T 739.16).

331 . The plaintiff gave varying answers in relation to his capacity to work after the Eastlake Incident, including the following:

(a) He accepted that he did at least some work between 26 February and 11 June 2014 (T 573.11-46).

(b) He clarified that he maintained a practising certificate as a chiropractor between February 2014 and November 2018 (T 612.21-22).

(c) He agreed it “sounds right” that his chiropractic business ceased on 12 February 2016 (T 666.25-27).

(d) He agreed that a financial document showing he earnt $30,000 in the 12 months preceding June 2016 was correct “to the best of [his] knowledge” (T 669.31-42).

(e) He stated that, after 12 February 2016, he performed chiropractic work on an “extremely” limited basis (T 674.9-12).

332. When taken to BAS records for the period of July to September 2014, the plaintiff agreed he was working as a chiropractor in that period, earning approximately the same amount as he had been in the previous three months (T 646.10-20). When taken to subsequent BAS records for 2015, it was accepted that the income was not distinctly different from before the Eastlake Incident (T 652.26). The evidence in regard to the plaintiff’s BAS records following the Eastlake Incident are discussed in detail above at [45]-[72].

Sophie Crowe

333. Ms Sophie Crowe was previously employed as a bar and gaming attendant at the Eastlake Football Club. At the time of giving evidence, Ms Crowe was no longer employed by the club and was employed as a secretary (T 1110.31-36). Ms Crowe gave evidence regarding her shift at the Eastlake Football Club on 14 February 2014. On that evening, Ms Crowe recalled the plaintiff approached her to request that an amount of money be exchanged for coins (T 1111.15). Having run out of coins, she consulted her duty manager, as she was concerned that, given the size of the request, the resource of coins for the poker machines would be depleted (T 1111.44-1112.2). Although Ms Crowe could not recall the precise amount of money requested, she indicated an amount between $200 and $250 sounded correct (T 1112.13).

334. Ms Crowe recalled that before consulting her manager, she had reached under the counter for a cloth bag, which she told the plaintiff contained $400 in coins (T 1112.25- 39). Upon her manager, Mr McArthur, telling the plaintiff they could not facilitate the transaction, Ms Crowe recalled the plaintiff became “unhappy” with a “frustrated and aggressive” demeanour (T 1114.4) and refused to return the coins. Ms Crowe recalled that the plaintiff had indicated to Mr McArthur that they were still in possession of money belonging to the plaintiff and that Mr McArthur had indicated they would hold on to that money until police arrived (T 1114.11-25). Ms Crowe stated that money belonging to the plaintiff was about $300 which Mr McArthur held in a bundle (T 1114.44-1115.11).

335. Under cross-examination, it was clarified by Ms Crowe that the plaintiff gave her $400 for coins and he received the coins; he subsequently requested an additional amount of $300 which he sought to exchange, and which Mr McArthur was holding onto. Ms Crowe stated that she had informed Mr McArthur that this was the plaintiff’s money (T 1117.32-1118.9).

Joseph Schuster

336. Mr Joseph Schuster gave evidence regarding his shift as a security guard of Eastlake Football Club on 14 February 2014. Mr Schuster gave evidence that, in the course of his shift, Mr McArthur had approached him to hold on to $300 in cash as he needed to “resolve a problem” (T 1130.13-30). Mr Schuster observed the plaintiff “ranting and swearing” and asking for his money back (T 1131.6) before leaving the club for between five and ten minutes, after which he returned and “reached over and grabbed [the money] and then headed towards the exit” (T 1131.15). Mr Schuster blocked the plaintiff from leaving using his body and gave evidence that he was assisted by Mr Colangelo and Mr McArthur (T 1132.5).

337. Mr Schuster was then asked to call police as the plaintiff was “trying to push his way out of the door with the money”. The police suggested he take photo ID of the plaintiff and release him, which he conveyed to Mr McArthur and Mr Colangelo. Mr Schuster heard this information being told to the plaintiff. Mr Schuster recalled the plaintiff refused this request and appeared angry (T 1133.15-40).

338. The plaintiff then proceeded towards the poker machines, at which point Mr Colangelo told the plaintiff that he was not supposed to be in there and requested he leave (T 1134.1-10). As the three were exiting, Mr Schuster recalled he had his back towards the plaintiff but turned around to see the plaintiff who “threw a punch at [Mr Colangelo]” (T 1134.24). Mr Schuster stated Mr Colangelo then “grabbed him and put him to the ground” and “we just all got on top of him, sort of restrained him” (T 1134.30-34). Mr Schuster subsequently confirmed the plaintiff was being restrained by hands rather than the guards’ full bodies (T 1137.45-1138.20).

339. Mr Schuster recalled that at some point the plaintiff got up and sat down, after which the police arrived. Mr Schuster’s evidence was that he did not see Mr Colangelo trip or push the plaintiff (T 1137.1-20). Mr Schuster denied that the punch was a reaction to being tripped and denied he had misinterpreted the plaintiff tripping and turning as a punch (T 1137).

340. In cross-examination, Mr Schuster confirmed that he was acting under the directions of management on the night in question (T 1135.37) and accepted that it would have been open for the club to identify the plaintiff’s address from membership records (T 1136.15). Mr Schuster further accepted he did not see what preceded the plaintiff attempting to punch Mr Colangelo (T 1137.20).

Nicholas McArthur

341. Mr Nicholas McArthur gave evidence that, on the evening of 14 February 2014, he was acting as Duty Manager at Eastlake Football Club. Mr McArthur gave evidence that, on that evening, Ms Crowe came into his office and informed him that someone was attempting to exchange $400 into $1 coins (T 1139.42). Having formed the view that this request would need to be investigated further, Mr McArthur left his office to speak with the plaintiff (T 1140.5).

342. Mr McArthur asked the plaintiff the reason for the request. The plaintiff stated that it was “none of [his] business” and requested that Mr McArthur collect $5 and $10 notes for him (T 1140.18). Mr McArthur told the plaintiff “we were not a bank”, being concerned the plaintiff would not be spending the money within the premises (T 1140.27-33).

343. Mr McArthur then asked the plaintiff to return the coins (T 1140.43). The plaintiff refused and stated he was going to call the police as the club was holding his money (T 1140.43 -1141.12). The plaintiff informed Mr McArthur that $300 of his money was being held by the club and Mr McArthur proceeded to take that money from the cashier and give it to a security guard until police arrived (T 1141.20-27). Mr McArthur denied saying to the plaintiff that he would not return the $300 unless the plaintiff returned the coins (T 1145.37-41).

344. It was Mr McArthur’s evidence that the allegation the club had ‘stolen’ the plaintiff’s money, and the threat to call the police had caused his decision with respect to the $300 (T 1153.34-1154.16).

345. Mr McArthur observed the plaintiff leave the premises with a bag of coins and return shortly thereafter without it (T 1141.36-45). At some point afterwards, Mr McArthur observed the plaintiff reach over the club reception desk and grab the $300 Mr McArthur had earlier taken from the cashier before proceeding towards the exit (T 1142.12-29). Mr McArthur gave evidence that “the way in which it was taken made me believe that it was not in fact his” (T 1142.42).

346. The plaintiff was prevented from exiting and the police were called by Mr Schuster at the direction of Mr McArthur (T 1142.45). While waiting for the police to arrive, the plaintiff remained in the premises and Mr McArthur observed that he was “muttering under his breath” and his behaviour was “erratic” (T 1143.33-36).

347. Mr McArthur gave evidence that he observed the plaintiff attempting to leave on a number of occasions and being prevented from doing so (T 1143.45-1144.1). Mr McArthur also deposed to having seen the altercation in the following terms (T 1144.20):

I witnessed Mr Ryan enter the pokie area, which is separate to the main area of the club. Mr Colangelo was following behind. A period of time passed. I then witnessed Mr Ryan enter -sorry, exit the pokie area back into the main thoroughfare with Mr Colangelo still behind. At that time, I saw Mr Ryan turn, notice Mr Colangelo behind him, take a swing, to which Mr Colangelo was able to get out of the way for. At that time Mr Colangelo was then able to restrain Mr Ryan on the floor.

348. Mr McArthur stated the plaintiff then stood up and waited approximately 15 minutes before police arrived (T 1145.1-5).

349. In cross-examination, Mr McArthur deposed that he did not discover the money was in fact the plaintiff’s until police had confirmed as much (T 1146.21) and conceded that he did not ask Ms Crowe if this was the case (T 1151.25). It was also conceded that there was no reason the plaintiff could not leave the club with the $400 in coins, as the coins were in fact his (T 1150.39).

350. Mr McArthur was unclear as to the nature of the supervisory control he had over Mr Schuster as an independent contractor (T 1153.21), stating: “I could not say that I had full supervisory provisions over Mr Schuster” (T 1153.25).

Joe Colangelo

351. Mr Joe Colangelo gave evidence that he was duty manager at Eastlake on the night of the incident, commencing his shift shortly before 12:00am. Mr Colangelo deposed that when he arrived to commence his shift he saw a disagreement between the plaintiff and club staff and, after seeing the plaintiff “clutch a bag of money that was sitting on the counter” assisted in preventing the plaintiff from leaving (T 1187.6-29).

352. Mr Colangelo gave evidence that he instructed Mr Schuster to call the police to “clear the matter up” (T 1187.41). After having been informed there would be a delay before the police arrived, Mr Schuster informed Mr Colangelo that police had informed him that if they could identify the individual, they could let him leave (T 1188.14). The plaintiff refused to identify himself to Mr Colangelo (T 1188.27).

353. Mr Colangelo observed the plaintiff to be “agitated” and “angry” (T 1189.3). At some point the plaintiff moved towards the area of the poker machines and Mr Colangelo asked the plaintiff to return. Mr Colangelo denied that the staff were crowding the plaintiff at this time (T 1194.25). When he began to return, Mr Colangelo was following him (T 1189.5-29). It was Mr Colangelo’s evidence that as he was returning, the plaintiff was angry and, directed towards Mr Schuster said: “you and your coconut mate” (T 1189.37). Having asked the plaintiff to repeat what he said, Mr Colangelo deposed that the plaintiff “turned and took a swing” at him with his right arm, which caught him in the chest (T 1190.1-7). In response, Mr Colangelo sought to restrain the plaintiff and the plaintiff fell to the ground (T 1190.10-13). Mr Colangelo denied calling the plaintiff a “peanut head” or trying to trip him as the plaintiff was moving from the poker machine area (T 1191.26-39, T 1195.12).

354. In cross-examination, Mr Colangelo accepted that he pushed the plaintiff down with his hand as the plaintiff tried to get up. He accepted that he did so in anger before Mr Schuster placed his hand on Mr Colangelo’s shoulder. Following the push, the plaintiff got up and stated: “you’ve assaulted me” (T 1196.1-20).

Joe Bettle

355. Counsel for the plaintiff tendered an affidavit under the hand of Mr Joe Bettle dated 28 July 2019 (Ex. 37). The affidavit states that Mr Bettle has known the plaintiff for 10-15 years and socialises with him occasionally. Mr Bettle was using a poker machine at the time of the altercation between the plaintiff and Eastlake staff members. Mr Bettle states in the affidavit:

Very late in the evening I heard a commotion in the seating area nearby and a man cry out in alarm. I turned my head around the poker machine and looked to see Mark getting up off the ground amongst chairs and tables. There were approximately 2 Eastlake security and staff standing within 1-2 feet of him, looking down at him.

356. Mr Bettle did not see what had caused the plaintiff to be on the ground. Upon recognising the plaintiff, Mr Bettle states that he went over to see if he was ok; the plaintiff replied that he was ok. Mr Bettle states he did not observe any injuries but that he “could see by the distressed look on his face and agitation that he was shaken.”

357. Mr Bettle’s affidavit states that he is a regular attendee at the Eastlake Football Club, and he has experienced a “safe and relaxed environment” at the Club. He further states that he has observed the plaintiff to be an even-tempered man.

CCTV Footage

358. Exhibit 1 contained CCTV footage from Eastlake Football Club on the night of the incident from four angles: the cash desk, the front desk, the gaming area, and the reception.

359. The CCTV footage shows an interaction between the plaintiff and a staff member prior to midnight at the cash desk. Money is exchanged in accordance with the oral evidence of the plaintiff and Ms Crowe.

360. At midnight, the plaintiff is seen to grab something from behind the security desk and make his way to the exit; he is stopped by staff members. There is a confrontation between the plaintiff and staff members as the plaintiff is prevented from leaving. Between 12.01am and 12.05am, the plaintiff attempts to leave the premises on a number of occasions and is stopped by Eastlake staff.

361. At 12.06am, the plaintiff walks through the gaming area, followed by one staff member. There appear to be two staff members in the area watching the plaintiff’s movements, although there is only one staff member directly following the plaintiff. As they are walking through the gaming area, the plaintiff looks back towards the staff member and it appears as though some words are exchanged. As they proceed through the gaming area, the CCTV footage shows the staff member placing his foot between the plaintiff’s legs as he walks, apparently tripping the plaintiff. The plaintiff then turns and appears to attempt to push the staff member, who proceeds to push the plaintiff to the ground. At this point, two other staff members come over and stand over the plaintiff, who is on the ground.

362. The plaintiff is on the ground for some seconds before he gets up and walks away. The footage between 12.07am and 12.25am shows the plaintiff and staff members sitting or standing in the lounge area near the reception and outside the gaming room. The staff members remain close to the plaintiff, but there is no further attempt by the plaintiff to leave the premises. The police arrive at 12.25am and speak with the plaintiff and staff.

Expert Evidence – the Eastlake Incident

Dr John Saboisky

363. Dr John Saboisky is a consultant psychiatrist who prepared a report dated 22 August 2017. The report was requested by the Eastlake defendant and relied upon an examination of the plaintiff conducted on 15 August 2017.

364. The plaintiff reported to Dr Saboisky that he had experienced no other bouts of depression in his life, excluding following his brother’s death. Dr Saboisky noted that this was “contrary indeed to what is on the medical file” (Ex. 5 p. 352). Based on the provided medical history, Dr Saboisky observed that there had been at least two episodes of depression prior to the Eastlake Incident (Ex. 5 p. 355).

365. During his interview with Dr Saboisky, the plaintiff denied suffering psychological injuries following the Eastlake Incident (Ex. 5 p. 354). Dr Saboisky stated:

My general impression is that he has had a depressive disorder which is now largely in remission. His alleged cognitive impairment is inconsistent and depends very much on what is being required of him (Ex. 5 p. 355).

366. Dr Saboisky described the plaintiff’s psychological injuries in the following terms:

He did not have any immediate psychological impact apart from being very angry about the way he perceived he was treated. It was two weeks later that he developed cognitive impairment and depression and I would not be entirely comfortable with attributing this to the incident because there are a whole range of other factors which have come into play since the accident (Ex. 5 p. 355).

367. The report noted that the plaintiff suffered from other significant stress factors in his life around the time of the incident, and was critical of the plaintiff’s attribution of his psychological difficulties to the Eastlake Incident:

He has a history of attributing his problems and problems in his family, (for example his parents’ losses) to the incompetence of others. He is of the view that his entire medical problem currently is due to this incident. Without detailed forensic examination and a judicial inquiry, I think it would be naïve to attribute any of his symptoms to this incident (Ex. 5 p. 355).

368. Dr Saboisky stated that “the prognosis is guarded because he has so much invested in staying unwell” (Ex. 5 p. 356). Dr Saboisky was further sceptical of the plaintiff’s inability to work. While he accepted that the plaintiff had physical restrictions as a result of his cervical pathology, he stated that “there is no psychological reason he cannot work” and that “there will be no inclination to work until such time as the claim is finalised” (Ex. 5 pp. 356-357).

369. In cross examination by Mr Menzies QC for the plaintiff, Dr Saboisky accepted that his report should have referred to both “pre-existing factors before the incident and [factors] which came into play after the incident” (T 1381.16-27). Dr Saboisky did give evidence, however, that he was concerned with the plaintiff’s credibility, being of the view that the plaintiff had lied to him about his previous history of depression (T 1378.1-10).

370. Dr Saboisky was of the view that given the history of depression and the probabilities of reoccurrence, along with the other stress factors in the plaintiff’s life, the incident itself was consistent only with a minor contribution (T 1385.17).

371. In re-examination, when asked to assume no report of cognitive impairment until August 2015 and no prescription of antidepressant medication until early 2017, Dr Saboisky considered this to be inconsistent with the plaintiff’s history provided to him. Dr Saboisky considered it “most unusual” that severe memory problems would not have been picked up by a general practitioner (T 1387.22-46).

Dr Derek Lovell

372. In relation to his report, prepared at the request of the NRMA defendants and referred to above at [276], Dr Lovell was cross-examined by Mr Kelleher regarding his opinion that the Eastlake Incident was significant in that subsequently the plaintiff experienced memory difficulties and visual difficulties. When asked to assume that vision problems and memory issues in fact arose after the Bunnings Incident, Dr Lovell accepted that this would undercut his view of the insignificance of the Bunnings Incident (T 1399.33). He gave evidence that, if the visual impairments were not caused by the Eastlake Incident, the related psychological impacts could not be attributed (T 1400.21). He noted, however, that other psychological impacts of the incident may have been present (T 1400.15-26):

Well, it destroys the issues in regard to his vision … But the psychological effects of an assault, his humiliation and other things, are independent of those at the same time, because when I took a history from him, he told me of the events of the assault, and he was distressed about them.

373. Dr Lovell agreed that it would be unusual not to see reference in the notes of the plaintiff’s general practitioner to the plaintiff not working as a result of memory and concentration issues (T 1403.4).

374. In cross-examination by Mr Menzies QC for the plaintiff, Dr Lovell accepted that, if the Eastlake Incident had resulted in physical injuries, this may have impacted on the plaintiff’s mood (T 1406.46-1407.9).

Dr John McDonald

375. Dr John McDonald is a consultant orthopaedic surgeon who prepared a report dated 24 August 2017 at the request of the Eastlake defendant.

376. Dr McDonald’s report relied upon a physical examination of the plaintiff, as well as extensive medical records (Ex. 5 p. 358). Dr McDonald, in reviewing the medical records, noted that a CT scan following the Eastlake Incident showed the presentation of a large central C5/6 disc bulge that was not present in a scan carried out two months earlier (Ex. 5 p. 362). Nevertheless, his report concluded that, on the evidence provided to him, “no one event has caused his pathology to develop in his cervical spine and that it is as a result of a developmental process” (Ex. 5 p. 363). Dr McDonald opined that none of the conditions present on examination in August 2017 were referrable to the Eastlake Incident (Ex. 5 p. 364).

377. In cross-examination by Mr Menzies QC for the plaintiff, Dr McDonald accepted, by reference to scans that indicated a C5/6 disc bulge, that he could not exclude trauma as being responsible (T 1422.24).

Dr John Bentivoglio

378. Dr Bentivoglio’s reports, prepared at the request of the plaintiff, and referred to above at [155], considered that about 50% of the plaintiff’s ongoing back complaint, 50% of the plaintiff’s left shoulder injury, and 60% of the plaintiff’s right shoulder issue could be attributed to the Eastlake Incident (Ex. 51 p. 20). While Dr Bentivoglio’s investigations did not indicate significant damage to the plaintiff’s right knee, he opined that the ongoing complaint with the knee could be attributed entirely to the Eastlake Incident (Ex. 51 p. 20).

379. In relation to the plaintiff’s neck injuries, Dr Bentivoglio noted:

Mr Ryan has had multiple CT and MRI scans taken of his cervical spine, all indicating ongoing problems with his neck, with degenerative changes. His most recent MRI scan taken of his cervical spine in January 2017 continues to show evidence of abnormalities at multiple levels. Whereas, this gentleman did have a more significant abnormality at the C5/6 level of his cervical spine, seen on the CT scan in February 2014, it is no longer present (Ex. 51 p. 28). (Emphasis added)

380. This appears to suggest that the abnormality at the C5/6 level was aggravated by the Eastlake Incident in 2014; however, in a report dated 12 July 2019, Dr Bentivoglio stated the following:

An initial CT scan taken of his cervical spine in February 2014 was reported as showing a large central C5/6 disc bulge predominantly right side. There is also evidence of minor posterior osteophyte at the C6/7 level with some minor encroachment on the right neural exit foramen. An MRI scan taken of his cervical spine in January 2017 showed evidence of degenerative changes at multiple levels of his neck. This would be in keeping with the abnormality seen on the CT scan from February 2014. It has just been a natural progression of the abnormality seen on that investigation. I viewed results of an MRI scan taken of his cervical spine in February 2015, which showed evidence of moderate central canal stenosis from C5 to C7 as a result of degenerative change at those levels. There is no sign of any cord myelomalacia. The most recent MRI scan taken of his cervical spine in January 2018 showed the same abnormalities as were seen previously with evidence of significant degenerative disc disease with discal damage at C5/6 and C6/7 levels. The abnormalities seen at the C5/6 and C6/7 level of his cervical spine represents permanent weakness at those levels of his cervical spine. Whether Mr Ryan’s symptoms in the past had settled with appropriate treatment or not, he does have significant weakness in his cervical spine from those injuries leaving him susceptible to having further injuries (Ex. 54 no. 28). (Emphasis added).

381. In a report dated 8 March 2018, Dr Bentivoglio noted that, due to the plaintiff’s extensive history of accidents and the lack of radiographic evidence prior to 2014, it is “impossible to determine how much the abnormality at the C5/6 level has been caused by any one specific incident” (Ex. 51 p. 31). Further, the report stated: As this gentleman has had multiple payouts for his injury, I can only assume his investigations in the past did indicate discal damage (most likely the C5/6 level). He would therefore have a permanent weakness present in his cervical spine which would render him more susceptible to having further trauma and further ongoing problems.

382. In a number of reports, Dr Bentivoglio reiterated his difficulty in obtaining a clear history from the plaintiff (see, for example, Ex. 54 no. 28).

383. When cross-examined by Mr Kelleher for Eastlake, Dr Bentivoglio agreed that, if the plaintiff was certified as being capable of working only seven hours a week in March 2012, this would be inconsistent with the history the plaintiff gave to him that he had recovered from motor vehicle accidents in 2008 and an important feature in understanding the effect of subsequent injuries (T 1477.31-39).

384. Dr Bentivoglio agreed when reading the observations of Dr Griffith from 2010 that, as at October 2010, the plaintiff had significant symptoms of a degenerative condition in his cervical spine and lumbar spine and that there was weakness in both of the plaintiff’s hands at this point (T 1478.41-1479.7).

385. Dr Bentivoglio agreed that, in light of Dr Griffith’s report, even absent the Eastlake Incident there would nevertheless be a “significant likelihood” of a decline in the ability of the plaintiff to work as a chiropractor even before 2014 (T 1479.9-20). Dr Bentivoglio agreed that a disc bulge protrusion could itself be a feature of a degenerative condition and was not necessarily indicative of trauma (T 1479.33-38) and that his reliance on the conclusion of trauma rested on the reliability and accuracy of the history provided by the plaintiff (T 1479.43).

386. With respect to compression fractures in the lumbar spine suffered by the plaintiff in 2018, Dr Bentivoglio agreed that, all things being equal, the plaintiff would nevertheless have been unable to perform tasks as a chiropractor as a result of these injuries (T 1480.43-47).

387. With respect to the history conveyed by the plaintiff in relation to the alleged injuries following the Eastlake Incident, Dr Bentivoglio confirmed the plaintiff made no mention of injuries to his right shoulder, groin, chest, thoracic spine or head (T 1481).

388. With respect to the range of movement in the plaintiff’s neck, Dr Bentivoglio accepted that this observation of “half normal range” was consistent with the observation of Dr Griffith of neck movement in 2010 (T 1483.10-30).

Dr Leon Le Leu

392. Dr Le Leu attributed the following injuries in the following percentages to the Eastlake Incident (Ex. 51 p. 81):

(a) Depression – 50%

(b) Vision – 25%

(c) Cervical spine (including headaches) – 45%

(d) Right shoulder – 25%

(e) Lumbar spine – 25%

(f) Chest – 75%

(g) Memory and concentration – 75%

393. He further noted that it was uncertain how much the incident had contributed to the plaintiff’s complaints in relation to his left and right knees, and his groin.

394. Dr Le Leu concluded that the plaintiff “had not significantly recovered from” the Eastlake Incident (Ex. 51 p. 82).

395. The plaintiff reported to Dr Le Leu that, after the Eastlake Incident, his “memory went ‘out the window’” (Ex. 51 p. 68). At the time of Dr Le Leu’s examination of the plaintiff on 8 September 2016, the plaintiff maintained that he had not recovered from the Eastlake Incident, pointing to his ongoing memory problems, headaches and neck pain (Ex. 51 p. 68). Dr Le Leu noted that the plaintiff had stopped working following the Eastlake Incident (Ex. 51 p. 69):

The main things stopping him working were poor concentration, his memory which had “gone out the window”, and the neck. The right groin, which he had not previously mentioned, would sometimes cause him pain.

396. When cross-examined by Mr Kelleher for Eastlake in relation to his report dated 17 October 2016, with respect to the stopping of work, and the attribution of 50% to depression in this respect, Dr Le Leu accepted he could not make this attribution, it being outside his expertise (T 1517.47-1518.2). Dr Le Leu accepted that, if in fact the plaintiff had continued working following the Eastlake Incident, that would undermine his assessment of the significance of the Eastlake Incident. He qualified this statement, however, by saying: “I haven’t really answered that question … properly, because I don’t really talk about the incapacity and partial incapacity; I am quoting what [the plaintiff] says” (T 1518.34-36).

397. Dr Le Leu confirmed he was not informed that the plaintiff was receiving medical certificates prior to the Eastlake Incident which restricted him to seven hours of work a week; he accepted this was contrary to his understanding expressed in the report. Moreover, he was not aware of the report of Dr Griffith in 2010 which demonstrated long-standing cervical degenerative disease (T 1520-1523). In light of Dr Griffith’s observations, Dr Le Leu accepted that the attribution of 45% of the cervical spine injury to the Eastlake Incident would need to be lowered (T 1523.41-44).

398. Having considered the reports of Dr Jackson and Dr Battlay, which indicated longstanding right shoulder issues in 2010, Dr Le Leu concluded that he should have allocated attribution to the pre-existing shoulder condition (T 1525.23-36). He concluded the same with respect to the chest injury (T 1527.37)

399. Dr Le Leu concluded he should have listed “uncertain” against the right shoulder, lumbar spine and chest injuries, rather than allocate a percentage of attribution. He accepted that it was also uncertain whether the plaintiff was suffering from anxiety (T 1526.23-45). It was further accepted that references to the increasing symptoms in the right shoulder, lumbar spine and chest could not be attributed to the Eastlake Incident (T 1529.30-47).

400. Dr Le Leu accepted that the reference to the groin injury and knees were unrelated to the Eastlake Incident (T 1528.35, 1529.38). Dr Le Leu also accepted that memory and concentration issues could be linked to the plaintiff’s sleep apnoea condition (T 1530.15-18). Dr Le Leu considered it difficult to determine how the headaches arose (T 1528.15).

401. Dr Le Leu accepted that the degenerative condition was likely to have continued to worsen, with greater restriction of movement and increasing symptoms (T 1529.22-23).

Dr David Gorman

402. Dr Gorman was retained by the plaintiff. His report dated 25 October 2017 concluded that the Eastlake Incident “worsened the aggravation of the neck injury as well as causing multiple other musculoskeletal pains” (Ex. 51 p. 98). Dr Gorman noted that the plaintiff had a partial incapacity for work following the Bunnings Incident, and a complete incapacity for work following the Eastlake Incident (Ex. 51 p. 99).

403. In relation to the plaintiff’s cervical spine condition, Dr Gorman noted the following (Ex. 51 p. 100):

Mr Ryan reports that the assault on 15 February 2014 was the one resulting in the most significant effect on his cervical spine – this would be my opinion as well based on the history. This aggravated his degenerative disease and I do not believe that one can say that the symptomatology, with limited range of movement, is consistent with merely progression of his degenerative disease.

404. Dr Gorman’s report was based on an understanding that the plaintiff was well prior to 2012, apart from the fracture resulting from the earlier assault, and an earlier wrist injury (Ex. 51 p. 100). When cross-examined, Dr Gorman confirmed that he had not been informed that, up and until March 2012, the plaintiff had been on medical certificates restricting him to seven hours a week of work as a chiropractor (T 1270.5).

405. Dr Gorman was cross-examined by Mr Kelleher for Eastlake in respect of his opinion that the Eastlake Incident in 2014 had “the most significant effect” on the aggravation of the cervical spinal degenerative disease. Dr Gorman was taken through the clinical notes of Dr Griffith prior to the Eastlake Incident and was asked to take into account that, at least in 2010, there was evidence of “the presence of crepitus, neurological signs in three fingers, together with weakness of the hand, together with restrictions on working capacity…” (T 1275.8-12). Dr Gorman accepted that symptoms and signs he observed in 2017 were “qualitatively no different” from those observed in 2010 (T 1275.30-32).

406. While Dr Gorman confirmed that the plaintiff had indicated a history of worsened memory and concentration, he conceded that he would defer to the opinion of a psychiatrist (T 1276-1277).

407. Dr Gorman accepted that his assessment of the impact of the Eastlake Incident would be affected if it was assumed that the plaintiff continued to work until November 2017 (T 1276.1-7). He further accepted that, in the case that the plaintiff continued to work, any “effect from the Eastlake Incident would have represented a short period of aggravation of his underlying cervical spondylitic condition” (T 1276.15-19). Dr Gorman concluded (T 1280.8-10):

I would have relied a large extent on the fact of stopping work. But if he didn't stop work then that certainly, as I said, takes the wind out of my sails to some extent, yes.

Dr Glen Smith

408 . Dr Smith was retained by the plaintiff. In respect of his report dated 7 February 2018, referred to above at [141], Dr Smith was cross-examined by Mr Kelleher for Eastlake. Dr Smith was examined in respect of his opinion that the Bunnings and Eastlake Incidents were the two most significant events with respect to the diagnosis of the persistent depressive disorder.

409. Dr Smith confirmed that he was told by the plaintiff that he had stopped working as a chiropractor following the Eastlake Incident (T 1310-11).

410. Dr Smith accepted that the cessation of work following the incident was a significant example of the traumatic impact of the incident on the plaintiff, and that if in fact this was not the case, this would cause him concern over the accuracy of other information provided by the plaintiff (T 1312.22). The fact that there was no report of the symptoms said to have been prohibiting work to the plaintiff’s general practitioner between the incident and 12 August 2015 reduced Dr Smith’s confidence in the plaintiff’s history (T 1313.4). The request for a medico-legal report on that date also caused Dr Smith concern as to the reason for the report (T 1313.23).

411. By reference to the report of Dr Saboisky prepared six months prior to his report, Dr Smith gave evidence that there was demonstrated improvement in the plaintiff’s mood since that time (T 1312.8).

412. Dr Smith accepted that his report did not include consideration of the potential effect of litigation, nor the report of Mr Nomchong which demonstrated no complaint of psychological harm from the Eastlake Incident and no complaint of loss of memory or concentration (T 1314-15).

413. Dr Smith accepted that, if it is assumed the plaintiff continued to work at the same level as prior to 2014, the Eastlake Incident loses “a great deal” of its significance (T 1315.47).

Dr Judith Buchholz

414. Dr Judith Buchholz is a clinical psychologist who was retained by the plaintiff. She examined the plaintiff on 29 November 2016 and produced a Neuropsychological Assessment dated 14 December 2016. Dr Buchholz was not called to give oral evidence during the course of the hearing.

415. Dr Buchholz conducted a number of tests with the plaintiff. He was found to be in the low-average to average range in relation to cognitive abilities (Ex. 51 p. 87).

416. Dr Buchholz stated that the plaintiff “did not appear to fatigue quickly” and “on the whole, he was able to sustain his attention and concentration throughout the assessment” (Ex. 51 p. 87).

417. At the time of assessment, the plaintiff reported significant symptomatology for extreme depression, moderate anxiety, and severe stress (Ex. 51 p. 88).

418. Dr Buchholz provided the following summary and conclusion (Ex. 51 p. 89):

Mr Ryan is a 60 year old man whose cognitive functioning falls within the low-average to average range. Mr Ryan demonstrated some difficulties with self-monitoring and correction, and slowed speed of processing. While his immediate memory was good, particularly for meaningful verbal material, his delayed memory declined significantly. Overall, … Mr Ryan’s difficulties while not clinically significant, still cause him distress. It is possible that Mr Ryan’s difficulties are due to his current clinical features (as below), continued pain experience and normal aging. Mr Ryan reported clinically significant symptoms of clinical depression, anxiety and stress. In particular reporting symptoms of irritability, poor concentration/motivation and poor sleep. There is a possibility that he has developed an adjustment and/or somatic disorder.

419. Further, Dr Buchholz stated that she agreed with Dr Le Leu that the plaintiff’s pre-existing depression was aggravated by 25% by the Bunnings Incident and 50% by the Eastlake Incident (Ex. 51 p. 91). I note here that a number of Dr Le Leu’s conclusions were withdrawn in the course of cross-examination, and I take this into account in considering Dr Buchholz’s report.

Dr Steve Thornley

420. Dr Steve Thornley is an endocrinologist retained by the Eastlake defendant, who prepared a report dated 15 August 2018. He was not called to give oral evidence.

421. Dr Thornley’s report outlined the plaintiff’s diabetic condition and the treatment he has received for it. He noted that the plaintiff’s diabetic management was “quite poor” (Ex. 5 p. 369). The report did not outline any connection between the plaintiff’s increased treatment for diabetes and the Eastlake Incident (Ex. 5 p. 369).

Dr Janaka Seneviratne

422. Dr Janaka Seneviratne is a consultant neurologist and clinical neurophysiologist retained by the Eastlake defendant. He prepared two reports dated 13 September 2018 and 14 November 2018. He was not called to give oral evidence.

423. Dr Seneviratne stated that “it appears [the plaintiff’s] current diplopia is predominantly related to a fourth cranial nerve palsy on the left side” which is likely to have occurred after MVA 2 (Ex. 5 p. 379). He further opined that “it is impossible to say to what extent the incident in 2014 has contributed to his ongoing neck pain or current cervical spine changes” (Ex. 5 p. 379).

424. Dr Seneviratne’s report stated that the plaintiff received analgesia following the Eastlake Incident; he was reviewed by optometrists and other eye specialists; and underwent CT imaging and MRI. Dr Seneviratne stated that these measures were necessary and reasonably required (Ex. 5 p. 380). Submissions of the Plaintiff

425. The plaintiff submitted that Eastlake, through its agents, wrongly imprisoned the plaintiff by detaining him on the premises, without lawful justification and thereby depriving him of his liberty.

426. The plaintiff submitted that the evidence of the plaintiff and Ms Crowe should be accepted, while the evidence of Mr McArthur should be rejected. The plaintiff submitted that there was no need to detain the plaintiff until the police arrived, as the plaintiff’s residential address could be readily obtained by looking at the membership records.

427. Counsel for the plaintiff submitted that the plaintiff was “harassed and bullied” by the employees, and that it was “nonsense” that they were intending to keep him in the club until he was identified, in circumstances where they knew he was a member of the club (T 1665.34-42).

False Imprisonment

428 . False imprisonment is an intentional, total and direct restraint on a person’s liberty.

429. As per s 218 of the Crimes Act 1990 (ACT) (Crimes Act), the plaintiff noted that a citizen’s arrest may be made in the ACT if the person making the arrest believes on reasonable grounds that the other person is committing, or has just committed, an offence. The person conducting the arrest must arrange, as soon as practicable after the arrest, for the person to be delivered into the custody of a police officer.

430. The plaintiff submitted at [58]-[60] that the following matters are relevant in relation to the matter of a “citizen’s arrest”:

(a) the plaintiff taking the $300 was insufficient grounds to detain him;

(b) the club knew who the plaintiff was and knew that he was a member of the club;

(c) the staff could have easily allowed the plaintiff to leave and then made enquiries with police;

(d) the club was aware that the money belonged to the plaintiff;

(e) mere suspicion is an insufficient basis to make a citizen’s arrest; and

(f) it should be rejected that the staff acted in the reasonable belief that their actions were necessary to prevent the plaintiff from assaulting another person in the club.

Assault

431. The plaintiff submitted that assault is defined as “any direct and intentional threat made by a person that places the plaintiff in reasonable apprehension of an imminent contact with the plaintiff’s person, either by the defendant or by someone within the defendant’s th control”, citing Barker et al, The Law of Torts in Australia, 5 ed, Oxford University Press, 2011 at p. 44. The plaintiff further noted that “the least touching of another in anger is a battery”, citing Cole v Turner (1704) 6 Mod 149; 87 ER 907.

432. The plaintiff submitted that Mr Colangelo went beyond “merely placing a hand on the plaintiff” and that he “used excessive force by pushing the plaintiff to the ground and striking him whilst he was on the ground”: at [63].

433. The plaintiff referred to the fundamental principle that every person’s body is inviolate, and that the touching of another person, however slight, may amount to a battery, citing Collins v Wilcock [1984] 1 WLR 1172 (Collins). The plaintiff referred to the following passage in Collins at 1177: “the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner”.

Medical Treatment

434. The day following the Eastlake Incident, the plaintiff presented to the Canberra Hospital Emergency Department with complaints of neck pain. In written submissions from [69] to [82], the plaintiff set out the medical treatment received by the plaintiff following the Eastlake Incident. This treatment included CT brain and cervical spine scans in the days following the incident; multiple presentations to Canberra Hospital; multiple attendances at his GP at Phillip Medical Centre; and two physiotherapist appointments.

Submissions of Eastlake

435. In Eastlake’s submission, each of the two causes of action must fail as:

(a) In respect of the false imprisonment, the employees and contractor of Eastlake reasonably believed the plaintiff had wrongfully obtained money from Eastlake when they detained him; and

(b) In respect of the assault, Mr Colangelo was acting in reasonable and proportionate self-defence following an attack from the plaintiff.

436. Eastlake submitted that the plaintiff’s written submissions are “extremely brief” and provide “no real analysis of the factual or legal issues”. It was submitted that the plaintiff simply relies on his version being accepted and the Eastlake witnesses being rejected.

False Imprisonment

437. Eastlake accepted that, between 12:00am and the alleged assault as 12:06am, the plaintiff was prevented from leaving the premises but submitted that this was only following the plaintiff having “snatched” the $300 from the security desk.

438. Moreover, Eastlake submitted that, following the alleged assault (or, in Eastlake’s submission, act of self-defence), the detention from 12:06am until 12:25am (when police arrived) was a “reasonable act of detention in response to that assault”: at [47].

439. In respect of the Incident Register asserted to be a contemporaneous account of the Eastlake Incident, Eastlake highlighted a number of inconsistencies, in particular, assertions in that document that the plaintiff was prevented on three occasions from leaving the premises before the $300 was taken, and, that the taking of the money occurred after the alleged assault. The plaintiff’s oral evidence was also that he was prevented from leaving before taking the money (T 86-88). In Eastlake’s submission, both are clearly rebutted by the CCTV footage. It was submitted the Incident Register and oral evidence were concocted accounts and that the plaintiff was free to leave until he had taken the $300, as he had done earlier when he went to place the coins in his car. 440 . Mr Schuster gave evidence that the plaintiff was told he could leave if identification was provided (T 1133.14-26). Eastlake submitted that this evidence was unchallenged by the plaintiff. Eastlake further submitted that the fact that the plaintiff gave no evidence of his own conversation with police can more readily allow an inference that it would not have been favourable to the plaintiff: Commercial Union v Ferrcom (1991) 22 NSWLR 389 at 418.

441 . Eastlake submitted that the plaintiff’s cause of action in respect of false imprisonment is statute barred. In this respect, Eastlake relied on s 435 of the Crimes Act, which provides as follows:

435 Protection of persons acting under Act 1) All actions against any person, for anything done, or reasonably supposed to have been done under this Act, shall be commenced within 6 months after the fact committed, and written notice of any such action, and of the cause of it, shall be given to the defendant 1 month at least before commencement of the action, and in any such action the defendant may plead the general issue, and give the special matter in evidence.

442. Eastlake noted that the proceedings were commenced in the Magistrates Court in February 2017, more than six months after the alleged “wrongful imprisonment”: at 3 [155].

443. In the alternative to that submission, Eastlake relied on s 218 of the Crimes Act in defence of the claim. That section provides as follows:

218 Power of arrest without warrant by other persons 1) A person who is not a police officer may, without warrant, arrest another person if he or she believes on reasonable grounds that the other person is committing or has just committed an offence. 2) A person who arrests another person under subsection (1) shall, as soon as practicable after the arrest, arrange for the other person, and any property found on the other person, to be delivered into the custody of a police officer.

444. While in evidence Mr McArthur conceded that he could have asked Ms Crowe about the source of the $300, in Eastlake’s submission, given the demeanour of the plaintiff and his use of the word “stole”, it was reasonable to leave the matter to the police. Eastlake submitted that whether Mr McArthur’s actions were reasonable at the time of his discussions with the plaintiff and when the plaintiff called police is irrelevant as the alleged false imprisonment only arose when the money was taken from the front desk.

445. It is at that time, after the plaintiff can be seen on CCTV moving “surreptitiously” towards the security desk, taking the money and attempting to “flee” and “barge his way out”, that Eastlake submitted there was a reasonable basis for detention: at [162].

Assault

446. Eastlake submitted that the various accounts of the alleged assault are inconsistent in that:

(a) The plaintiff’s oral evidence describes being followed by Mr Colangelo, being insulted by him, turning “a little bit” before being tripped by Mr Colangelo. In cross-examination, the plaintiff’s version incorporated a push to the back (T

3 Eastlake’s submissions state that the claim was made on 17 February 2017; however, the Statement of Claim was dated 7 February 2017 and was lodged a week later on 14 February 2014. 103.25-104.24). Moreover, it was submitted that the plaintiff’s description of being tripped by Mr Colangelo’s left leg suggested a repeated viewing of the CCTV outside of court and, therefore, a reconstructed recollection.

(b) The Incident Report includes a description that “I turned and said…”, before being pushed in the back. Eastlake submitted it would have been impossible to have been pushed in the back if the plaintiff had turned to face Mr Colangelo.

(c) The Claim Notification Form describes the plaintiff being “pushed with extreme force in the back while walking…”, with no reference of provocation, tripping or turning.

447. In Eastlake’s submission, the CCTV footage clearly contradicts the plaintiff’s account, showing a full turn and a clear swing of the plaintiff’s arm at Mr Colangelo, before which there is no tripping. I interpolate here that this submission, in my view, does not accord with the CCTV footage.

448. It was submitted that the plaintiff’s version of events is directly contradicted by the evidence of Eastlake’s witnesses.

449. Eastlake noted that Mr Schuster’s denials in cross-examination of whether the punch had been misinterpreted was inconsistent with the plaintiff’s evidence and suggests an attempt to “explain away” the CCTV footage, which Eastlake submitted clearly shows a punch. It was submitted that this would be powerful corroborative evidence of Mr Colangelo’s testimony, particularly in circumstances where the plaintiff’s credibility is questionable and where the Eastlake witnesses gave consistent and, as Eastlake submits, “unchallenged” accounts: at [150].

450. In Eastlake’s submission, on the objective and subjective evidence, a defence of self-defence is made out in relation to the assault. Consequently, Eastlake submitted that if there was to be a finding of false imprisonment, this would have ceased by the time of the “assault” at 12.06am. In relation to self-defence, Eastlake submitted that, under common law, a defence of self-defence is made out where there is just cause and a reasonable response. Eastlake further submitted that, if self-defence is not found, there was nevertheless provocation and therefore a reduction in exemplary damages may be warranted: Fontin v Katapodis (1962) 108 CLR 177 (Fontin).

451. Again, I interpolate here that, in my view, the CCTV footage does not show a full turn and swing of the plaintiff’s arm and does not show a “punch”. The footage does, however, show Mr Colangelo placing his foot between the plaintiff’s legs and apparently tripping the plaintiff, at which point the plaintiff turns toward Mr Colangelo. Eastlake’s submissions in this respect are therefore not accepted.

452. Eastlake made further submissions in respect of the conclusions to be drawn in relation to the assault and the principles in relation to self-defence, with reference to R v Katarzynski [2002] NSWSC 613; Presidential Security Services of Australia Pty Ltd v Clinton Joseph Brilley [2008] NSWCA 204; 73 NSWLR 241; and Sangha v Baxter [2009] NSWCA 78; 52 MVR 492.

Medical Evidence

453. In respect of the evidence of Dr Gorman, outlined above at [402]-[407], Eastlake submitted that there is no reason not to accept the evidence of Dr Griffith in 2010, and that, assuming the plaintiff did not stop working after the Eastlake Incident, no weight should be afforded to the opinions of Dr Gorman: Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505. Alternatively, it was submitted that reliance should only be placed on the opinion expressed in cross-examination regarding short-lived aggravation. Eastlake repeated the substance of this submission with respect to the evidence of Dr Smith.

454. Similarly, it was submitted that reliance on Dr Bentivoglio’s opinions should be limited to the concessions arising in cross-examination. Eastlake submitted that the Court could not be persuaded that there were any injuries, or anything other than brief aggravation of long-standing injuries, arising from the incident.

455. In respect of Dr Le Leu, again Eastlake submitted that weight should only be attached to the concessions arising in cross-examination, in particular, the doctor’s evidence, outlined at [396]-[401], about the longstanding nature of the plaintiff’s injuries. Accordingly, it was submitted that a causal relationship between the Eastlake Incident and the complaints to Dr Le Leu in 2016 had not been established.

456. It was submitted at [330] that the plaintiff’s medical evidence was significantly affected by the plaintiff’s credibility and thus should not be afforded any weight with respect to consequential damage or injury said to arise:

Eastlake submits that the plaintiff’s reports are so affected by the untruthful, incomplete and exaggerated histories provided by Mr Ryan that your Honour would accord them no weight and reject the plaintiff’s damages case against Eastlake for any consequential damage or injury said to arise from the assault with the exception of the report of Mr Nomchong who attributes no psychological injury to the assault and the reports of Dr Delaney.

457. In respect of Dr Buchholz, it was submitted that the report suffers from the incomplete and untruthful histories provided by the plaintiff. In particular, Dr Buchholz relies on the accuracy of the assumptions contained in the report of Dr Le Leu. Eastlake noted in this respect the concessions which arose in the cross-examination of Dr Le Leu.

458. Eastlake did not object to Dr Delaney’s reports. Eastlake underlined the doctor’s opinion that the plaintiff’s diplopia was unrelated to the Eastlake Incident and the only possible sequalae from the incident was an increase in strength in corrective lenses. However, it was noted that there was no evidence of extra costs and any damage would be de minimis.

Submissions in Reply

459. It was the plaintiff’s submission that, irrespective of whether the detention occurred before or after the taking of the $300, the plaintiff was falsely imprisoned. In the plaintiff’s submission, to suggest that the plaintiff was free to leave if he provided staff his identification ignores that, as he was a club member, this information was already available to the club.

460. It was further submitted that Eastlake omits the evidence of Ms Crowe that she had in fact told Mr McArthur that the club was holding $300 of the plaintiff’s money, although this was denied in the evidence of Mr McArthur. Mr McArthur gave evidence that the basis of detention was the defendant’s manner and his use of the word “stolen”; this was described by the plaintiff as “extraordinary”.

461. With respect to the ‘defences’, the plaintiff submitted s 435 of the Crimes Act is irrelevant as there is no proceeding for wrongful arrest, and, in respect of the assault, self-defence is not available as the response was not reasonable in the circumstances.

462. In relation to submissions on injuries, the plaintiff submitted that merely because an expert qualifies their opinion in cross-examination does not mean the opinion ought to be discounted in its entirety. It was noted that there is no contention about underlying degenerative conditions, the issue is the degree of aggravation and extent of continuation.

Consideration: The Eastlake Incident

Relevant Legal Principles: Intentional Torts

463. It is appropriate at this juncture to refer to some relevant general principles governing the law of intentional torts.

Battery & Assault

464. The Originating Claim dated 8 February 2017 alleged an assault against the plaintiff. The event may be properly characterised as a battery.

465. There is a legal distinction between the tort of battery and the tort of assault. An assault creates an imminent fear of unlawful contact. No physical contact is required. A battery requires the application of physical contact.

466. The elements of battery are as follows:

(a) an intentional or negligent act by the defendant;

(b) that immediately or directly caused physical contact with the plaintiff; and

(c) such contact was offensive, in that it was likely to cause injury or affront.

See Williams v Milotin (1957) 97 CLR 465; McHale v Watson (1964) 111 CLR 384 (McHale); The Queen v Phillips (1971) 45 ALJR 467 (Phillips); and Boughey v R (1986) 161 CLR 10.

467. Where a plaintiff is alleging battery, the onus is on the plaintiff to prove that there has been some physical contact by the defendant, or that the offensive physical contact has occurred from some other source as a result of the actions of the defendant. The plaintiff bears that onus to the test laid down in Briginshaw v Briginhaw (1938) 60 CLR 336 (Briginshaw): see New South Wales v Koumdjiev [2005] NSWCA 247; 63 NSWLR 353. Once offensive contact has been established, the onus then shifts to the defendant to prove an absence of intent or negligence: McHale.

468. The tort of assault involves the making of a threat of force or violence to another person so as to cause that person to believe that the threat will be carried out. It is not necessary that physical contact occurs.

469. The elements of assault are as follows:

(a) a threat of force or violence made by the defendant to the plaintiff;

(b) an accompanying intention on the defendant’s part to cause the plaintiff to fear that such threat would be immediately carried out; and

(c) the threat in fact caused the plaintiff to believe on reasonable grounds that the threat would be carried out. See Phillips and ACN 087528774 Pty Ltd (formerly Connex Trains Melbourne Pty Ltd) v Chetcuti [2008] VSCA 274.

470. The onus is on the plaintiff to establish the elements of assault on the balance of probabilities to the Briginshaw standard.

False Imprisonment

471. The tort of false imprisonment involves the unlawful deprivation of a person’s liberty by another person or other persons. Where a plaintiff can establish that their liberty has been taken away, then the cause of action will be made out unless the defendant can show that the imprisonment was lawfully justified.

472. The elements of false imprisonment are as follows:

(a) the defendant intentionally caused the total restraint of the plaintiff’s liberty; and

(b) the restraint of the plaintiff’s liberty was not lawfully justified.

See Nye v New South Wales [2003] NSWSC 1212 (Nye); Trobridge v Hardy (1955) 94 CLR 147 at 152; and Darcy v New South Wales [2011] NSWCA 413 (Darcy) at [141]-[146].

473 . The plaintiff is required to prove the fact, or occurrence, of imprisonment or restraint: Cubillo v Commonwealth [2001] FCA 1213; 112 FCR 455 at [262]. The plaintiff bears this onus on the balance of probabilities to the Briginshaw standard. In Nye, at [9], O’Keefe J stated:

The onus of proving each of the elements of the torts of wrongful arrest and false imprisonment and of malicious prosecution lies on the plaintiff. Some of those elements involve proof of a negative. This is usually more difficult than proof of a positive element, but the negative may be established by inference. The standard of proof is the civil standard, namely proof on a balance of probabilities. In applying this standard the nature and seriousness of the allegation to be proved must be borne in mind.

474. His Honour went on to consider the comments of Dixon J in Briginshaw.

475. Once the fact of imprisonment has been proved, the onus then shifts to the defendant to show that such imprisonment was justified or lawful: TD v New South Wales [2010] NSWSC 368 (TD) at [49]; Zaravinos v New South Wales [2004] NSWCA 320; 62 NSWLR 58 (Zaravinos); and Ruddock v Taylor [2005] HCA 48; 222 CLR 612 at [97]. Justification must be specifically pleaded by the defendant in the defence: Zaravinos at [12].

476. It is not necessary for the plaintiff to prove fault and, in that sense, false imprisonment is a tort of strict liability: TD at [49] and Watson v Marshall and Cade (1971) 124 CLR 621 at [12]. The plaintiff must, however, show a “total restraint” on the plaintiff’s movement: South Australia v Lampard-Trevorrow [2010] SASC 56 at [282]-[283] and Darcy at [144]. The restraint must be “actual rather than potential” and “must be upon a person’s liberty to come and go and must against his or her will”: Darcy at [144].

Factual Findings

477. On the totality of the evidence, including in particular the evidence of Ms Crowe, who I accept without reservation on this topic, I am satisfied on the balance of probabilities Mr McArthur was told by Ms Crowe, prior to preventing the exit of the plaintiff, that the $300 belonged to the plaintiff.

478. Nevertheless, I accept that there was confusion on the part of Mr McArthur who did not understand that the money was in fact the plaintiff’s money until the police confirmed that fact. Mr McArthur gave evidence that he did not ask Ms Crowe whether the money belonged to the plaintiff. He did not of course need to wait for the police to arrive to ascertain that fact. That fact was ascertainable from his staff member, Ms Crowe, as stated above. I accept Ms Crowe’s evidence on this point, in preference to Mr McArthur’s evidence on this point.

479. In summary on this point, in my view Ms Crowe told Mr McArthur the money belonged to the plaintiff. It is also clear that Mr McArthur was unhappy with the plaintiff’s attitude concerning the $400 worth of coins (T 1139-1140). I accept that these two issues – the $400 worth of coins and the consequent refusal to return the $300 in cash – unhappily coalesced and caused confusion on the night in question.

480. I accept that the plaintiff was free to leave up until he had retrieved the $300 that belonged to him, as per [38] and [158] of Eastlake’s Submissions.

481. What can only be described as an unnecessary standoff occurred that resulted in three men at various times following the plaintiff around the club and preventing his exit from the club.

482. Contemporaneous film is, for obvious reasons, more reliable than fallible human memory. In this case, the CCTV footage is more reliable than the evidence of Mr McArthur, Mr Colangelo, Mr Schuster, or the plaintiff. It is well accepted that a judge of fact should be cautious in interpreting photographic evidence (which would include CCTV footage): Asim v Penrose [2010] NSWCA 366; Angel v Hawkesbury City Council [2008] NSWCA 130 at [70] to [72]; Blacktown City Council v Hocking [2008] NSWCA 144 at [8] to [12], [167] to [170]; Warren v Gittoes [2009] NSWCA 24 at [54] to [55]; and Yarrabee Coal Co Pty Ltd v Lujans [2009] NSWCA 85 at [20] to [28]. See also The Commonwealth of Australia v Marsh [2018] ACTSC 189.

483. Exercising due caution, where there is conflict between the CCTV footage and the evidence of the various witnesses, including the plaintiff, I rely on the footage. There is inconsistency on the one hand between the evidence of Mr McArthur, Mr Schuster and Mr Colangelo and, on the other hand, the CCTV. To the extent of the inconsistency, I do not accept their evidence and rely on the CCTV footage.

484. The CCTV footage at 12.06.32 reveals that Mr Colangelo tripped the plaintiff, in that, while following the plaintiff very closely from behind, his foot ended up between the plaintiff’s legs. On the balance of probabilities, this tripping by Mr Colangelo is more likely to be accidental rather than deliberate, and I so find. The act was hostile in the relevant sense discussed in the authorities: see Hutchinson v Fitzpatrick [2009] ACTSC 43 at [54]. This was by reason of the fact that Mr Colangelo was walking too close behind the plaintiff, resulting in the tripping.

Sections 435 and 218 of the Crimes Act

489. The action is not time-barred. Section 435 is not relevant to this case. Section 218 cannot be relied upon in light of my factual findings. Further, in light of my factual findings, reasonable grounds did not exist: see s 218(1).

Factual finding as to injuries said to have been caused by the Eastlake Incident

490. As to the injuries said to have been caused in the Eastlake Incident, it is necessary at this juncture to address the list of injuries set out at [68] of the plaintiff’s written submissions.

(a) Sternal/chest – As Dr Le Leu noted, this is an old injury and he could not say there was any ongoing effect from the assault. The plaintiff gave no evidence in chief of any ongoing effect. In any event, the plaintiff submitted at [190] that the injury had no significant impact, if any.

(b) Aggravation of injury to right shoulder – Dr Bentivoglio and Dr Le Leu consider this at best to be a minor aggravation of a long-standing condition. Dr Le Leu explicitly abandoned any ongoing effect in terms of a permanent aggravation or increased susceptibility. In any event, the plaintiff submitted at [186] that the injury had no significant impact, if any.

(c) Aggravation of injury to right elbow – Dr Le Leu does not consider the right elbow to have been injured in the assault. Dr Bentivoglio does not mention it. Dr McDonald for Eastlake stated that any injury to the right elbow was not caused by the subject incident (Ex. 5 p. 365).

(d) Injury to thoracic spine – This injury was the subject of no attribution in percentage terms by Dr Le Leu. Neither Dr Gorman nor Dr Bentivoglio were told of any injury or ongoing pain in this region.

(e) Injury to right groin – Dr Le Leu abandoned any ongoing injury to the right groin and accepted that any original pain was the brief aggravation of a long-standing condition. In any event, the plaintiff submitted at [199] that the injury had no significant impact, if any. (f) Injury to left shoulder – On the evidence of Dr Le Leu, Dr Bentivoglio and Dr Gorman, this was a symptom of the plaintiff’s long standing degenerative spinal condition and any injury attributable to the assault was a brief aggravation of this condition.

(g) Reduction in vision – the defendant accepts the evidence of Dr Delaney but says any injury or loss is de minimis. At [220], the plaintiff submitted that this injury is irrelevant.

(h) Occipital headaches – On the evidence of Dr Le Leu, Dr Bentivoglio and Dr Gorman, this was a symptom of the plaintiff’s long standing degenerative spinal condition and any injury in the assault was a brief aggravation of this condition. The submissions on this issue at [200] and [209] appear to state the disability with no analysis of how any injury sustained was capable of causing the alleged headaches. Dr Le Leu agreed that headaches can be a symptom of degenerative cervical spine condition.

(i) Psychological injury – This Court is entirely dependent on accepting the plaintiff has told the truth about his memory and concentration difficulties. As discussed earlier in relation to credibility, the plaintiff is an unreliable witness. In my view, there is no objective evidence supporting this claim.

491. While the cervical spine is not included in the plaintiff’s list, a claim is made at [230] of the plaintiff’s submission in relation to cervical spine injuries. The plaintiff relied on the evidence of Dr Buchholz and Dr Nomchong in this regard. On the evidence of Dr Le Leu, Dr Bentivoglio and Dr Gorman, the weight of the evidence leads to the conclusion that the cervical spine injury is a symptom of his long standing degenerative spinal condition and any injury in the assault caused only a brief aggravation of this condition.

492. The plaintiff suffered no orthopaedic injury. No bone was broken, nor ligaments ruptured. Rather, there were complaints of soft tissue injuries which at most, in my view, caused aggravations of longstanding underlying conditions. The evidence demonstrates they were of brief duration.

Damages: The Eastlake Incident

493. The plaintiff claimed economic loss as against Eastlake from 15 February 2014 (the day of the incident) to May 2014, a period of 11 weeks: at [349]. The plaintiff submitted that, following the Eastlake Incident, the plaintiff “could not work physically and run his club after the injuries and had to seek support from his employees to work extra shifts to cover for him”. In the plaintiff’s submission, this continued until the club had to close down in August 2014: at [351].

Submissions of Eastlake

494. Eastlake accepted the plaintiff’s submissions in relation to the eggshell skull principle (summarised above at [90]-[98]). It was submitted, however, that those principles do not “[relieve] the plaintiff of the ongoing burden and onus to prove that the plaintiff in fact suffered, and continues to suffer, from such injuries or aggravations”. Eastlake submitted that “the mere fact of susceptibility does not shift any onus to the defendant to disprove the injury or disability claimed” and referred to the decisions of Watts and Purkess.

495. Eastlake reiterated the importance in this case of identifying “with precision” the specific injuries and aggravations alleged; the extent and duration of these injuries and aggravations; and the alleged cause or causes of these injuries and aggravations: at [362]. Their submissions noted that the plaintiff conceded that the chest, right elbow, right groin and vision problems said to have been injured in the Eastlake Incident are “of no significance”. Eastlake agreed and stated that “on the entirety of the evidence” there were no injuries or complaints to the left shoulder, thoracic spine, head or neck that were distinguishable from the plaintiff’s longstanding condition: at [364]-[365]). In Eastlake’s submission, the only remaining injury therefore is any psychological injury, which is to be decided based on “the determination of the plaintiff’s credibility”: at [366].

496. Eastlake accepted that the statements of principle in State Government Insurance Commission v Oakley (1990) 10 MVR 570 (Oakley) provide, as outlined by the plaintiff, the correct approach to take in relation to causation: at [368].

497. Eastlake submitted, however, that, where Oakley has been followed by intermediate appellate courts, these decisions show that the approach of determining a cumulative figure for a number of accidents and apportioning them between parties is a correct approach but is not mandatory, citing Falco v Aiyaz [2015] NSWCA 202; 71 MVR 454; DNM Mining Pty Ltd v Barwick [2004] NSWCA 137; and Insurance Office of NSW v Aboushadi [1999] NSWCA 396. Eastlake submitted that the underlying principle in each of these cases was that the prospect of over-compensation when assessing “each successive injury in vacuo” should be avoided: at [370].

498. Eastlake submitted that an apportionment approach was not suitable in the current case.

False Imprisonment

499. Eastlake submitted that the period of “unjustified detention” was approximately six minutes and, therefore, could “give rise to no more than the barest of compensatory damages”. They submitted that a figure of $1,000 would be appropriate: at [385].

500. In the alternative, if the Court found that the period of unlawful detention extended until the police arrived at 12:25am, then the period was 25 minutes and an award of “no more than $5,000 would be reasonable”: at [386].

Battery/Assault

501. Eastlake submitted that any assault by Mr Colangelo was brief, did not involve any punches or kicking, and was a push to the ground and an act of restraint by Mr Colangelo and Mr Schuster. Eastlake further submitted that the initial injuries were all soft tissue and minor. Taking into account those factors, Eastlake submitted that the assault “is at the low end of seriousness and an award or no more than $30,000 would be reasonable”.

Aggravated and Exemplary Damages

502. Eastlake submitted that the sum claimed ($125,000) is “absurd on any view of the evidence”: at [390]. Eastlake further submitted that “the amount sought is clearly punitive and bears no relationship to the principles identified in the case law in the plaintiff’s submissions”: at [391]. Eastlake submitted that the circumstances of the assault and false imprisonment, if found, “on any version involve provocative behaviour” from the plaintiff: at [392].

503. Eastlake noted that the conduct of the plaintiff can be taken into account in considering exemplary damages: Fontin. Eastlake further submitted at [394]-[397] that the claim for exemplary damages should be rejected on the following grounds:

(a) the assault was brief and occasioned no serious injury;

(b) the assault “clearly did not arise out of any spite or malice by Eastlake staff on any version of the events”; and

(c) the claim by the plaintiff regarding mental suffering should be rejected due to the plaintiff’s “manifest problems with credibility”.

504. On the final day of hearing, 17 February 2020, the plaintiff and Eastlake were invited to provide an additional note on the range of exemplary and aggravated damages available in this case. The parties provided the following cases as a point of reference for the calculation of exemplary and aggravated damages.

Plaintiff’s List of Cases

Amaca v Latz [2017] SASCFC 145 (Amaca)

505. This was an appeal and cross appeal against an award of damages for personal injury. The respondent had developed malignant mesothelioma as a result of inhaling asbestos fibre dust when cutting and installing fencing products manufactured by the appellant. Under the relevant statutory scheme exemplary damages were provided for where conditions were met in relation an employee’s exposure to asbestos dust and the employer had knowledge of the nature of the harm that it could cause.

506. The cross appeal was allowed on the basis that the award of exemplary damages was manifestly inadequate. Exemplary damages were reassessed by the Court and increased from $30,000 to $250,000: see Amaca at [130], [228], [267]. The relevance of this decision is questionable given the nature of the injury and the statutory scheme mandating exemplary damages where the relevant conditions are satisfied.

Eathan Cruse v State of Victoria [2019] VSC 574; 59 VR 241 (Cruse)

507. The plaintiff in this Victorian case sustained injuries which left him “bloodied, bruised, and concussed” after a raid conducted by police: Cruse at [4]. Richards J accepted the plaintiff’s account of the force used by the police on him. His hands were cuffed behind his back, he was struck numerous times to the face and body causing him to bleed, he was slammed into a fridge while cuffed, and was threatened with further violence and warned not to say anything about the violence. He suffered significant psychological injuries as a result. He was never charged, and the arrest was found to be unlawful.

508. Aggravated damages were awarded on two bases – firstly, the police officers at all times disputed the plaintiff’s account, and the State accepted their word over that of the plaintiff. Secondly, the police did not have reasonable grounds for the arrest in the first place.

509. The State conceded that there would be exemplary damages if the plaintiff’s account were accepted. The Court noted that restraint was exercised in the award of exemplary damages in light of the amount of compensatory damages and aggravated damages which were awarded.

510. The plaintiff was awarded general damages in the amount of $200,000, aggravated damages of $80,000, and exemplary damages of $100,000.

Erlich v Leifer [2015] VSC 499

511. I note that this decision (at [208]) referred to Carter v Walker [2010] VSCA 340 at [284] for a summary of the relevant authorities on exemplary damages as follows:

Exemplary damages are damages over and above those necessary to compensate the plaintiff. They are awarded to punish the defendant. They are intended to act as a deterrent to the defendant, and to others minded to behave in a like manner. They are also intended to demonstrate the court’s disapprobation and denunciation of such conduct. Such damages may be awarded in respect of any tort that is committed in circumstances involving a deliberate, intentional, or reckless disregard of the plaintiff’s rights.

512. The plaintiff suffered depression and PTSD as a result of sexual abuse by schoolteacher. Exemplary damages of $150,000 were awarded against the teacher and $100,000 against the school.

513. The abuse in this instance involved a prolonged predatory sexual abuse of the plaintiff over the course of three years by the headmistress of the school. The school had no appropriate oversight of the defendant, and actively supported her throughout the litigation process.

Alchin v State of New South Wales (Unreported, NSW District Court, Wass DCJ, 3 December 2018)

514. A claim of malicious prosecution was brought by the plaintiff against the NSW Police Force, following a protracted investigation of about 17 months. The plaintiff had believed until he was charged, that the investigation was proceeding on the basis that he was the victim, rather than the perpetrator of the relevant offences. The plaintiff had provided a witness statement on this basis. The criminal proceedings had concluded in the plaintiff’s favour. The trial judge was critical of a number of the police officers involved in the investigation, doubting their honesty and reliability as witnesses.

515. The trial judge awarded the plaintiff $30,000 in general damages, $50,000 in exemplary damages, and $15,000 in aggravated damages.

“B” v Reineker [2015] NSWSC 949

516. A claim was brought in trespass and negligence against the plaintiff’s teacher and school. The claim against the school was resolved by agreement. The teacher had sexually assaulted the plaintiff between 2001 and 2008 during his employment with the school and on occasions independent of that employment.

517. The trial judge found that aggravated and exemplary damages were available but decided that it was unnecessary to award them in the circumstances. This was to avoid double counting in the claim for general damages which he found to be $350,000, and because the purpose of punishment, denunciation and deterrence had been served by the fact that the defendant had been imprisoned and was then serving a sentence for those crimes. Beckett v State of New South Wales [2015] NSWSC 1017 (Beckett)

518. This was a long-running case over a number of years. The plaintiff successfully challenged her convictions on 9 charges in the High Court. The DPP then withdrew the charges rather than run the trial a second time.

519. The exemplary damages were associated with the conduct of a specific prosecuting police officer. The Court found that this officer regarded the plaintiff as his ‘nemesis’ due to his belief that she had negatively affected his career by making complaints about his conduct in unrelated matters. The plaintiff spent approximately one month in custody in relation to the convictions.

520. In addition to awards in general damages and other related claims, the plaintiff was awarded $100,000 in aggravated damages and $200,000 in exemplary damages.

Lee v Kennedy [2000] NSWCA 153

521. This case involved an ‘extraordinarily serious’ wrongful arrest and series of assaults by three police officers in the plaintiff’s home. The trial judge rejected the evidence given by the police officers at the trial, finding that it had been ‘false and duplicitous’ and that they had embellished, exaggerated, and outright lied in giving their evidence. The trial judge had been impressed by the plaintiff’s evidence and preferred it when determining any conflict.

522. The NSW Court of Appeal increased the trial judge’s award of $15,000 for ‘aggravated or exemplary damages’ to $25,000 for aggravated damages, upheld the award of $25,000 for general damages, and awarded $120,000 for exemplary damages.

Houda v State of New South Wales [2005] NSWSC 1053

523. This was a claim for false imprisonment, wrongful arrest, assault, and malicious prosecution arising out of an altercation between a police officer and a solicitor at Burwood courthouse. The plaintiff solicitor was escorted from the courthouse in full view of the public and his clients. He was required to report the charge to the Law Society and appear before the local court. The proceedings against him were ultimately withdrawn. The plaintiff received compensatory damage for the assault included in the award of $100,000, $20,000 for aggravated damages and $25,000 in exemplary damages.

An Empirical Study of Exemplary Damages in Australia, Felicity Maher Vol. 43 (2) Melbourne University Law Review 2019.

524. The plaintiff submitted that, while the article does not conform with s 99 of the Wrongs Act in that it does not nominate particular cases, it gives “an overall view of the incidents in exemplary damages and aggravated damages in Australia and the very wide range of the award of those damages and the circumstances in which they are awarded”. Defendant’s List of Cases

ACT Cases

Whitehead v Moon [2013] ACTSC 243 (Harper M)

525. This was a personal injury claim arising from a sexual assault and battery, and trespass to person. The assault occurred in NSW so the Civil Liability Act 2002 (NSW) was applied.

526. The Court found that the physical injury caused by the assault was “transient and comparatively minor” at [205], compared to the psychological distress which had a much greater impact upon the plaintiff. The Court accepted that the plaintiff seriously contemplated suicide in the days after the assault and found herself unable to return to work and go on with her previous life. The plaintiff was assessed as being psychologically vulnerable prior to the assault, with a tendency to depression: [201]- 202]. General damages of $100,000 were awarded to the plaintiff.

527. In relation to aggravated and exemplary damages, Harper M noted that this case was one where an award of aggravated damages was appropriate, not on the basis of the defendant’s conduct a the time of the assault, but for the manner in which the defendant conducted the defence of the action. The cross-examination of the plaintiff had been highly confrontational, at times aggressive, and the plaintiff was accused of lying on oath. $10,000 was awarded. Harper M found exemplary damages were not appropriate in this case.

528. The award of aggravated damages was set aside on appeal. This was on the basis that the Master had fallen into error by failing to afford procedural fairness to the appellant. In his final submissions to the Master, counsel for the respondent had not sought aggravated damages based upon the manner in which the hearing before the Master had been conducted. Instead the claim had been founded upon the appellant’s continued denial of the respondent’s version of the events: Moon v Whitehead [2015] ACTCA 17 at [45]. The respondent was otherwise successful on appeal.

Brunoro v Nebelung [2017] ACTCA 26

529. This was a claim relating to two assaults, and a claim under the Family Provision Act 1969 (ACT).

530. The Court of Appeal found that the award of general damages of $40,000 by the primary judge had not been in error. It noted that the plaintiff had not adduced evidence demonstrating that his enjoyment of life had diminished, and the primary judge had not been in error when factoring in the plaintiff’s prior alcoholism into this assessment.

531. On exemplary damages the Court of Appeal noted (at [57]):

…[E]xemplary damages are intended to punish a defendant for “conscious wrongdoing in contumelious disregard for another’s rights”, demonstrate the court’s disapproval of such conduct, and to deter the defendant and others from similar behaviour. Unlike aggravated damages, they are not compensatory.

532. The Court of Appeal agreed with the primary judge’s assessment that exemplary damages were not appropriate in this case. Commonwealth of Australia v Marsh [2018] ACTSC 189

533. This appeal arose from a brief interaction that took place outside a police station on Boxing Day, 26 December 2012. It involved a police officer, the plaintiff and a blue bicycle. The plaintiff was subject to bail conditions that included refraining from consuming intoxicating liquor. He had failed a breath test for the presence of alcohol, ran from the police station with a police officer pursuing him. The plaintiff handled the bike, impeding the police officer’s pursuit, and causing injury to his right shin. The plaintiff was arrested by the police officer a short time later and held in custody for two days before being granted bail.

534. The plaintiff commenced civil proceedings in the Magistrates Court, alleging a number of causes of action, two of which were malicious prosecution and false imprisonment.

535. The plaintiff was successful on those two claims at first instance, with the Magistrate awarding damages to the plaintiff Marsh in the sum of $35,000 plus costs. That figure comprised $25,000 for malicious prosecution, including $5,000 in exemplary damages, and $10,000 for false imprisonment.

536. McWilliam AsJ upheld the Commonwealth’s appeal with respect to the malicious prosecution, finding that the Magistrate had erred in applying the correct test when considering whether the police officer had reasonable and probable cause. The award of $10,000 for the false imprisonment was affirmed.

Morro & Ahadizad v ACT [2009] ACTSC 118

537. This case involved the tort of false imprisonment in respect of three plaintiffs. There had been a number of administrative mistakes by the Sentence Administration Board, which had led to custody orders being rendered invalid. The ACT admitted liability for the torts, and in the case of one of the plaintiffs, admitted liability for an assault upon the plaintiff by another prisoner which had occurred whilst he was in custody. The fundamental issue was not liability, but the proper assessment of the damages or compensation payable.

538. The Court examined the authorities with respect to false imprisonment and exemplary damages at [49]-[55] and concluded at [137] that they were not appropriate. General damages in the sum of $95,000, $40,000, and $55,000 were awarded to each of the plaintiffs.

NSW Cases

Lule v State of NSW [2018] NSWCA 125 (Lule)

539. The plaintiff was wrongfully arrested following a break and enter nearby to his Uncle’s apartment. The complainant’s partner had incorrectly identified the plaintiff, only having seen the perpetrator of the break and enter from behind.

540. The plaintiff brought a claim for unlawful arrest, false imprisonment, and assault (however the assault claim was not pressed on appeal). The claim was dismissed at first instance, with the primary judge finding that the arrest had been lawfully made in accordance with s 99(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).

541. The appeal was upheld and the plaintiff awarded $30,000 plus costs. The plaintiff’s claim for aggravated damages was not pressed. The Court rejected the plaintiff’s claim for exemplary damages as the evidence did not indicate that the arresting officer had engaged in conscious wrongdoing or acted in contumelious disregard of the plaintiff’s rights, or that any other circumstance existed which would warrant the rarely adopted course of awarding exemplary damages being taken: [98]-[99].

Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250

542. The appellant was a patron at the respondent hotel. The manager formed the view that the appellant was intoxicated and requested a security guard to remove her from the premises. He did so by pulling the stool on which the appellant was sitting from under her. The appellant fell to the floor and was injured.

543. The primary judge found that the security guard had committed an assault and battery for which his employer (a third-party security contractor) was vicariously liable. However, the third-party contractor company had ceased to exist. The primary judge found that the guard’s employer was liable and awarded general damages of $2,500, aggravated damages of $2,500, and exemplary damages of $5,000. The primary judge found that the hotel was not vicariously liable as the guard was not acting as the hotel’s agent. The damages awarded were in the low range due to the finding that the injury caused was not permanent and the plaintiff’s pre-existing back condition had not been aggravated by the injury.

544. The appellant brought an appeal in an attempt to place liability onto the solvent hotel rather than the contractor, and on the basis that the damages awarded were manifestly inadequate. The appeal was dismissed with respect to both grounds, with the Court of Appeal finding that the damages awarded by the primary judge were appropriate.

State of New South Wales v Zreika [2012] NSWCA 37

545. This was an appeal from a judgment of the District Court awarding the respondent $304,556 against the State. The court had determined that the respondent had been unlawfully arrested and assaulted, and had been the subject of a malicious prosecution. The charges were withdrawn several months later once the matter had been reviewed by the DPP. It was common ground in the civil proceedings that the respondent had not been involved with the shooting.

546. The respondent spent two months in custody, had lost his business, and had been left with a debt of over $30,000 for borrowings for his business.

547. The primary judge awarded the following in damages:

(a) Wrongful arrest - Compensatory damages $50,500 - Aggravated damages $10,000 (b) Assault and battery - Compensatory damages $10,000 (c) Malicious Prosecution - Compensatory damages $75,000 - Exemplary damages $100,000 - Aggravated damages 25,000 Defence costs and interest: $29,356 Economic loss: $5,000 TOTAL $304,556

548. The Court of Appeal found that the primary judge had erred in relation to his approach to the award of $100,000 for exemplary damages associated with the malicious prosecution. It found that the judgment did not expressly consider whether the award was necessary or appropriate having regard to the considerable sums awarded for compensatory and aggravated damages, also noting that the Judge had assessed aggravated damages after having arrived at the figure for exemplary damages: at [70]. The authorities require the compensatory and aggravated damages to be taken into account in determining whether and to what extent exemplary damages should be awarded: at [74]. The award of exemplary damages to $50,000.

New South Wales v Ibbett [2006] HCA 5; 229 CLR 638

549. This was a claim against the State of NSW, which was vicariously liable for the actions of its police officers. One of the plain clothed police officers had followed Mrs Ibbett’s son into the garage of the home he shared with his mother after a short pursuit in relation to a traffic offence. He had then pointed his gun at Mrs Ibbett and her son and directed them to open the garage door to allow his colleague to enter. Mr Ibbett was subsequently arrested, however the charges were later dropped.

550. Mrs Ibbett’s claim against the State was in trespass and assault. The primary judge entered a verdict and judgment for the trespass by both police officers in the sum of $50,000 (General damages: $10,000; aggravated damages: $20,000; exemplary damages $20,000). A sum of $25,000 was awarded for the assault, represented by $15,000 as general damages, and an award of $10,000 in exemplary damages; described by the primary judge as being “of modest proportions”.

551. No award of aggravated damages was made by the primary judge for the trespass. However, the Court of Appeal unanimously awarded $10,000 in aggravated damages for the assault. There was also an order increasing the award of exemplary damages for the assault from $10,000 to $25,000. The $20,000 awards of aggravated and exemplary damages for the trespass were retained by Spigelman CJ and Basten JA, Ipp JA would not have made awards under these heads. The High Court unanimously dismissed the State’s appeal with costs.

State of New South Wales v Riley [2003] NSWCA 208; 57 NSWLR 496 (Riley)

552. The respondent brought a claim against the NSW Police Service for assault, battery and false imprisonment, trespass to property and negligence, arising out of the conduct of its police officers. One of the respondent’s neighbours had reported what she thought were gunshots coming from the respondent’s property. The respondent was subsequently arrested, handcuffed, and transported to a local hospital for psychiatric assessment. Proper procedures were not followed with respect to the arrest or the search of the respondent’s premises. The respondent’s wrist were injured due to the overly-tight application of the handcuffs.

553. The primary judge awarded general damages of $40,000 plus interest and past economic loss of $4,800. Exemplary damages were assessed at $40,000. For the trespass to property (the police search of the respondent’s home) the judge awarded compensatory damages of $8,000, no aggravated damages, and exemplary damages of $5000. For the negligence claim which caused the fracture to the respondent’s right wrist the damages awarded were $200,655.70 reduced by reason of contributory negligence to $120,393.42.

554. The Court of Appeal came to the conclusion that the police conduct was “not beyond ordinary human fallibility so as to justify any increment to the ordinary compensatory damages for hurt feelings already included in the award of $40,000 compensatory damages for the assaults [and] did not believe an] additional award of aggravated damages for the assaults [was] justified. Similarly, [it did] not think an award of exemplary damages for the assaults [was] justified.”: [142] As such, the respondent’s claim was reduced by $85,000 to $185,307.42.

State of New South Wales v Cuthbertson [2018] NSWCA 320

555. The respondent brought his claim on the basis that he had been assaulted and unlawfully restrained by a police officer while on a train, and on a train platform soon afterwards. The respondent had been charged with both assaulting and resisting a police officer in the execution of their duty. He was convicted of the offences in the Magistrates Court, however they were overturned on appeal to the District Court. He then brought civil proceedings against the State for wrongful arrest, false imprisonment, and assault / trespass to person. The primary judge awarded $92,856 in damages in the following manner:

(a) $12,000 in ordinary damages for assault and trespass;

(b) $7,000 in damages for wrongful imprisonment

(c) $15,000 in aggravated and exemplary damages as a lump sum for assault, trespass and wrongful imprisonment

(d) $45,500, being 50 per cent of the legal costs incurred by Mr Cuthbertson in defending the criminal proceedings; and

(e) $13,356 by way of interest on damages.

556. The State sought leave to appeal against the award of damages in favour of the respondent with respect to the award relating to legal costs incurred by the respondent in defending the criminal proceedings, and the combined award of $15,000 by way of aggravated and exemplary damages.

557. The Court of Appeal set aside the award of exemplary damages on the basis that the primary judge did not make findings or characterise the officer’s conduct in a manner which supported an inference that the relevant standard was satisfied for the award of exemplary damages. As the primary judge had not specified how much of the award constituted the exemplary damages, the Court of Appeal assessed it as being $7500 or half of the joint award.

558. Another issue which was raised on appeal was whether aggravated and/or exemplary damages should not be awarded, or at least should be reduced, on account of the respondent’s provocative behaviour at the time of the arrests / assault. The primary judge had found that the respondent’s behaviour had been “disrespectful rising to a degree of provocation” and “acting like a smart arse”. The primary judge considered that this behaviour did not disentitle the respondent in respect of the general damages, but was “a discounting factor for consideration of aggravated and exemplary damages of the assault…”, nevertheless, the Judge awarded exemplary damages after taking this factor into account.

Goldie v Commonwealth of Australia (No 2) [2004] FCA 156

559. Mr Goldie had been detained by immigration detention following a mistaken determination that his visa had expired. In fact, his visa had not expired, the information recorded on the Department of Immigration’s computer system was incorrect. He was apprehended at his place of employment and escorted to a detention facility at Perth airport. He remained there for three days, until he was granted a temporary bridging visa and conditionally released after paying a $10,000 security. Mr Goldie had maintained that he had a valid visa throughout his detention.

560. Mr Goldie’s original claim for compensation was dismissed. His appeal was upheld in part, with the Full Court finding that the decision to arrest Mr Goldie had not been based on a reasonable suspicion and was not reasonable in all of the circumstances. This was so because the decision maker had access to a number of facts which contradicted the computer record, but chose to ignore them. The matter was remitted back to French J (as his Honour then was) to make an assessment of damages.

561. French J approached the assessment by identifying the various elements of the wrongful arrest and detention and assessing a component of the amount by reference to each of those elements. This was done with the intention of indicating the aspects of the arrest and incarceration which were taken into account. French J found that the actions of the immigration officers had done no more than was necessary to discharge their duty, and thus there was no basis for an award of exemplary or aggravated damages.

562. For the wrongful arrest and associated physical restraints including an allowance for humiliation and indignity inflicted at the time of apprehension Mr Goldie was awarded $5,000.

563. For the conduct, in detention, of pat searches, the medical examination and other requirements: $2,000

564. For the detention for a period of three day, including an allowance for the continuing humiliation and indignity associated with that detention: $15,000.

Further Submissions of Eastlake

565. Eastlake submitted that each case must be determined on its own facts and according to applicable principles; however, the cases referred to were as close as possible as cases similar to the type of matter currently before the Court. Eastlake submitted that the list provided by the plaintiff in this respect “ranges over a series of quite different causes of action and substantially different factual circumstances”. It was further submitted that the academic paper referred to by the plaintiff should not be taken into account as it “falls well outside what the authorities identify as a proper source of limited assistance”.

566. I note here s 99 of the Wrongs Act which states:

99 Tariffs for damages for non-economic loss 1) In deciding damages for non-economic loss, a court may refer to earlier decisions of that or other courts for the purpose of establishing the appropriate award in the proceeding. 2) For that purpose, the parties to the proceeding or their lawyers may bring the court’s attention to awards of damages for non-economic loss in those earlier decisions. 3) This section does not change the rules for deciding other damages. 4) In this section: non-economic loss includes the following: (a) pain and suffering; (b) loss of amenities of life; (c) loss of expectation of life; (d) disfigurement.

567. I will deal with this question in accordance with s 99 and, accordingly, I have referred to earlier decisions of courts.

Past out-of-pocket Expenses

568. Eastlake submitted that a nominal amount of $500-$1,000 would be “more than sufficient” to cover any out-of-pocket expenses in the short period following the assault.

Future medical expenses and travel expenses

569. With reference to the expert evidence of Mr Nomchong, Dr Bentivoglio, Dr Gorman and Dr Le Leu, Eastlake submitted that “any injury and aggravation caused was of minor nature and short duration and [in] the absence of any supportive medico-legal evidence, this claim against Eastlake should be rejected”: at [402]-[408]).

570. Eastlake made a similar submission in respect of the claim for past and future travel expenses: “the claim should be rejected on the basis that any injury was a minor aggravation for a brief period”: at [409]. Eastlake also noted that, on the plaintiff’s own evidence, he was back to driving by August 2015 (MVA 2) and also that he told Dr Saboisky in August 2017 that he did all the driving due to Ms Southorn’s health: at [412].

Economic loss – loss of earning capacity

571. Eastlake reiterated its submissions that “the plaintiff’s claim to be unable to work following the Eastlake Incident was a blatant lie, as was any alternative suggestion that there was some reduction in his earning capacity”: at [429].

572. Eastlake submitted the following at [432]:

There is simply no independent or objective evidence of any actual past loss other than Mr Ryan’s say so. To the contrary there is objective, credible and contemporaneous evidence of an increase in earning capacity in the 9 months after the Eastlake Incident. There is continued work up until at least 30 June 2017 at levels consistent with the period from 1 July 2012 to 31 December 2013.

573. Eastlake submitted that it was “noteworthy” that a forensic accountant’s report was prepared in relation to the plaintiff’s business, however, it was not served. Eastlake submitted therefore that I should draw the inference that this report would not have assisted the plaintiff’s case: at [434].

574. In relation to the plaintiff’s earning capacity following the Eastlake Incident, Eastlake submitted the following: at [436]:

The submission that the plaintiff might have returned to full time employment but for the various incidents is fanciful in light of over a decade of limited hours caused by clear physical restrictions caused by longstanding injuries to his arms and knees and longstanding degenerative conditions of his cervical and lumbar spines, that the plaintiff’s own experts agreed would only become worse as he aged further, restricting his physical capabilities and ability to work as a chiropractor.

575. Finally, Eastlake submitted that there is no prospect that the minor injuries and short periods of aggravation of pre-existing injuries are, or will be, capable at any time of causing a financial loss: Graham v Baker (1961) 106 CLR 340.

Submissions in Reply

576. In reply, the plaintiff submitted that the Jones v Dunkel (1959) 101 CLR 298 principles did not apply to the forensic accounting report, and that it was available to the defendants had they wished to use it: at [12].

577. The plaintiff submitted that an amount of $75,000 would be appropriate for exemplary damages alone: at [14].

578. The plaintiff submitted that an amount of $50,000 would be appropriate for aggravated damages, due to the “manner” with which the plaintiff was treated in the club: “humiliated, assaulted and detained upon an entirely spurious excuse that he needed to be identified and his address determined, when both of those things were known”: at [15].

Conclusion on Consideration

579. In false imprisonment claims, general damages will include damages for curtailment of liberty and associated hurt feelings (including humiliation, distress and indignity): Walter v Alltools Ltd (1944) 171 LT 71 and New South Wales v Delly [2007] NSWCA 303 at [75]-[77].

580. In Morro v Australian Capital Territory [2009] ACTSC 118; 4 ACTLR 78 and in Cassell & Co Ltd v Broome [1972] AC 1027 at 1124-1126, it was underlined that damages are recoverable for the curtailment of liberty in false imprisonment, for inconvenience or disturbance, and for injured feelings. Injury to feelings also includes humiliation caused: see Lewis v Australian Capital Territory [2018] ACTSC 19 at [232] per Refshauge J.

581. The damages figure should not be grossly disproportionate to the loss or injury sustained: Noye v Robbins; Noye v Crimmins [2007] WASC 98 at [756] per Heenan J. That is consistent with the statement of principle in Lule at [103] that damages are “to be proportionate to the situation of the claimant party”. In Lule, Macfarlan JA at [106], with whom Beazley P and Barrett AJA agreed, referred to an assessment of the amount of damages as being “necessarily subjective and impressionistic”.

582. Further, in Fernando v Commonwealth [2014] FCAFC 181; 231 FCR 251 at [110] per Besanko and Robertson JJ, Barker J agreeing, it was stated that damages for false imprisonment cannot be computed on the basis that there is some kind of applicable daily rate.

583. In cases of assault and/or battery, general damages will be awarded to compensate the plaintiff for distress and mental upset, in respect of which any physical injury to the plaintiff may be taken into account irrespective of whether any claim for personal injury is made: Riley at [116]-[117].

584. Any provocation by the plaintiff of the defendant will not have the effect of reducing compensatory damages: Fontin at [4].

585. In Beckett at [670], Harrison J observed: In Australia, there is no authoritative guideline on how to calculate damages in wrongful imprisonment or malicious prosecution cases by reference to the period of time the plaintiff was detained. There is no clear arithmetical symmetry. Each case appears to have been decided on its facts and the reasoning behind the quantum of damages is usually short. The only Australian case where a Court calculated the damages for wrongful detention in an arithmetical way was at first instance in Spautz v Butterworth, where a daily rate was applied. However, this was overturned on appeal, and a lump sum was substituted.

False Imprisonment

586. In accordance with my factual findings at [477]-[488], I find that the period of unlawful detention of the plaintiff was until the police arrived at 12:25am. This was a period of 25 minutes. I find that the false imprisonment would have been humiliating for the plaintiff in such a setting. Taking into account the authorities outlined above, an award of $10,000 is in my view an appropriate amount for the false imprisonment.

Battery/Assault

587. The assault by Mr Colangelo was brief. In accordance with my factual findings, it involved an accidental trip and a deliberate push by Mr Colangelo to the ground. I find that the assault would have been humiliating for the plaintiff in such a setting.

588. In accordance with my factual findings at [477]-[488], in my view on all the evidence, including the discussion and analysis of the medical evidence discussed above, the assault caused a relatively brief aggravation of longstanding conditions. I award $40,000 in relation to this head of damage.

Economic Loss

589. Given the evidence of the plaintiff’s earning capacity between February 2014 and June 2016, outlined above at [45]-[72], I am not satisfied that the plaintiff suffered economic loss as a result of the Eastlake Incident. As stated above, the incident caused a relatively brief aggravation of longstanding conditions and, as demonstrated by the financial records, did not result in economic loss.

Aggravated Damages

590. Aggravated damages are a form of general damages given by way of compensation for injury to a plaintiff which may be intangible, resulting from the circumstances and manner of the wrongdoing: see State of NSW v Ibbett at [31]; Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 129-130.

591. In light of my factual findings, an award of aggravated damages over and above the general damages I have awarded is not called for in this case. A further award of damages would result in double counting. Relevantly, in Riley, Hodgson JA stated:

[127] That immediately raises the question, what is it that distinguishes aggravated damages from ordinary compensatory damages? Ordinary compensatory damages are supposed to be an amount adequate to compensate the plaintiff for all consequences of the defendant’s wrongful conduct that are not too remote; so what room is there for additional damages, which although dependent on some aggravating feature of the defendant’s wrongful conduct, are still supposed to do no more than compensate for consequences of that conduct? … [129] But aggravated damages are also awarded in cases where ordinary compensatory damages for injury to feelings are generally awarded, such as assault or defamation. [130] If, in addition to ordinary compensatory damages for injury to feelings, aggravated damages are to be awarded, then plainly it is important to avoid double counting; and the question arises, what can the additional aggravated damages be compensation for when injury to feelings have already been included in ordinary compensatory damages? [131] In my opinion, the only principled explanation must be along the following lines. It is extremely difficult to quantify damages for hurt feelings. In cases of hurt feelings caused by ordinary wrong-doing, of a kind consistent with ordinary human fallibility, the court must assess damages for hurt damages neutrally, and aim towards the centre of the wide range of damages that might conceivably be justified. However, in cases of hurt to feelings caused by wrong-doing that goes beyond ordinary human fallibility, serious misconduct by the defendant has given rise to a situation where it is difficult to quantify appropriate damages and thus where the court should be astute to avoid the risk of under-compensating the plaintiff, so the court is justified in aiming towards the upper limit of the wide range of damages which might conceivably be justified. … [133] This means that, if a court has awarded damages for hurt feelings as part of ordinary compensatory damages, the award of aggravated damages must only be for the difference justified by this approach, that is, an award of so much as is necessary to bring the damages up to the upper end of the available range. The approach also means, I think, that aggravated damages can be a matter of degree: the worse the defendant’s conduct, the further from the centre of the range and towards the upper limit of the range the court may be justified in going. (Emphasis added).

592. Additionally, I note that, in New South Wales v Quirk [2012] NSWCA 216, Tobias AJA (Beazley JA and Hoeben JA agreeing) stated at [154]:

At [35] of Ibbett, the plurality in the High Court noted that in cases where the same circumstances increased the hurt to the plaintiff and also made it desirable for a court to mark its disapprobation of that conduct, the court may choose to award one sum which represents both heads of damages and no element more than once. In the present case there was some debate as to whether aggravated damages should be awarded separately to ordinary compensatory damages though I do not think it is necessary to resolve that issue. Although the passages from the judgment of Hodgson JA in Riley would seem to indicate that both heads of compensatory damages should be awarded as one and not separately, I do not think that his Honour was seeking to lay down a fixed rule.

593. On balance, taking into account my factual findings in relation to misunderstanding and the accidental trip, I do not think the conduct in this case went beyond ordinary human fallibility so as to justify any increment to the ordinary compensatory damages for hurt feelings already included in the compensatory general damages. An additional award of aggravated damages is not justified in this case.

Exemplary Damages

594. There is a distinction between the compensating nature of aggravated damages and the punitive and deterrent nature of exemplary damages: see Lamb v Cotogno (1987) 154 CLR 1, Gray v Motor Accident Commission (1998) 196 CLR 1 at [6], [100]-[103].

595. In the case of aggravated damages the assessment is made from the point of view of the plaintiff, and in the of exemplary damages the focus is on the conduct of the defendant: see State of NSW v Ibbett at [34].

596. In light of my factual findings, this is not a case where I consider the court should award exemplary damages. 597 . Further, in light of my factual findings, I am not satisfied that this was a contumelious disregard of the plaintiff’s rights. Relevantly, in Riley, Hodgson JA stated at [138]:

In my opinion, as made clear in Gray, while “conscious wrong-doing in contumelious disregard of another’s rights” describes the greater part of the field in which exemplary damages may properly be awarded, it does not fully cover that field. Similarly, malice is not essential: Lamb v Cotogno. Conduct may be high-handed, outrageous, and show contempt for the rights of others, even if it is not malicious or even conscious wrong-doing. However, ordinarily conduct attracting exemplary damages will be of this general nature, and the conduct must be such that an award of compensatory damages does not sufficiently express the court’s disapproval or (in cases where the defendant stood to gain more than the plaintiff lost) demonstrate that wrongful conduct should not be to the advantage of the wrong-doer.

598. I also note in this regard Quirk at [159].

599 . Again, taking into account my factual findings in relation to misunderstanding and accident, in my view, an additional award of exemplary damages is not warranted in this case.

Determination

600 . I award damages as follows. I allow interest on these amounts for six years at two percent.

Head of damage Amount

False Imprisonment $10,000

Battery (Assault) $40,000

Aggravated Damages $0

Exemplary Damages $0

Out of Pocket Expenses $1,500

Future Medical Expenses $0

Past and Future Travel Expenses $0

Past Economic Loss $0

Future Economic Loss $0

Interest $6,000

Motor Vehicle Accident 2 – MVA 2 (2015)

Introduction

601 . It was agreed between the parties that, at approximately 2pm on 31 August 2015 at Masson Street, Turner, a car accident occurred (Statement of Claim [3.2], Defence [4]).

602 . In a Statement of Claim dated 21 August 2017, the Plaintiff alleged that MVA 2 caused the following injuries:

(a) aggravation of neck injury, increased neck pain and increased headaches;

(b) injury to chest wall; (c) development of thoracic spine tenderness more on the right than the left;

(d) developing upper, middle to lower double vision; and

(e) shock.

603. It was alleged that MVA 2 caused the following disabilities:

(a) increased levels of pain and restricted movement;

(b) right sided occipital pain and tension headaches;

(c) marked deterioration in his vision, causing him to fall in October 2015 sustaining further injuries including strained and sprained left ankle and fracture of the cuboid in the left ankle; and

(d) pain in the upper and lower back.

604. The plaintiff claimed past and future economic loss with respect to his employment as a security guard and chiropractor. The plaintiff further claimed out of pocket expenses and a Griffiths care component.

Medical Baseline

605. In oral submissions, it was agreed that, prior to MVA 2, the plaintiff was suffering from pre-existing diplopia, injuries to his neck and spine, and psychological difficulties (T 1689.16-18). The NRMA defendants maintained their position that no injury could have arisen from MVA 2.

Evidence

Lay Evidence

The plaintiff

606. It was the plaintiff’s evidence that, on 31 August 2015, he was parked in a carpark off Masson Street, sitting in the driver’s seat with no seatbelt on and looking at his phone, when his car was struck from behind (T 118-9).

607. The plaintiff gave evidence that he immediately felt pain in his neck and had severe headaches (T 119.31-35). The plaintiff stated he remained in his car until the driver of the other car later returned to the carpark, where the plaintiff told him “I’ll be fine” but “I’ve got a really sore neck, got a really bad neck” (T 120.1-3).

608. The plaintiff accepted there was minimal damage to his car, stating he did not in fact check for damage (T 119.39).

609. It was the plaintiff’s evidence that when he returned home, he noticed he was unable to make sense of the numbers on his photocopier. He later complained to his general practitioner that he was experiencing vertical double vision, which deteriorated to include from the central eye level and down (T 120.9-24). The plaintiff stated that, prior to this incident, his diplopia was only left lateral.

610. The plaintiff stated that, on 4 October 2015, he complained to Dr Crookes of his vision issues and of his depressed mood, including suicidal thoughts (T 121-122).

611. On 23 October 2015, the plaintiff fell down some stairs outside a medical centre. Noting this subsequent fall, the plaintiff gave evidence that he continues to experience facet joint pain, and the pain has increased by “40%” since 2015 (T 138). The plaintiff stated the pain increased “substantially” following MVA 3 (T 139.28).

612. In cross-examination by Mr Pappas for the NRMA defendants, the plaintiff was questioned in relation to attending Canberra Hospital on 31 January 2016 (T 483):

Mr Pappas: You didn’t say anything to the hospital on that occasion about any supposed connection between the more extensive diplopia and the collision which occurred on 31 August 2015, did you? The plaintiff: Well, that’s in ’16. Well, I just told them my history, you know, and they’ve written here – I forgot what they – well, that’s – I haven’t read the whole paragraph yet. … Mr Pappas: Yes. And you’ll agree with me that there doesn’t seem to be any hint that you told the hospital that your more extensive diplopia was in any way related to the collision which occurred on your birthday, in the year before? The plaintiff: Well, it just says that, ‘He now reported it when looking ahead and to the right.’

613. I interpolate here to note that hospital records show that, on that occasion in January 2016, the plaintiff presented to the emergency department complaining of double vision. The hospital records refer to the plaintiff suffering a Le Fort fracture in 2006 and a further orbital injury in 2012 (the Bunnings Incident). There is no mention of any accidents or injuries sustained in 2015 (Ex. 5 p. 981).

Stephen Cain

614. Mr Stephen Cain gave evidence of a collision on 31 August 2015 in the carpark on the edge of Masson Street. Mr Cain gave evidence that there was a car parked in the forward of the two car spaces as he drove up (T 1121.21). Mr Cain drove “front ways” into the park; “the intention was then to reverse back into the rest of the car park” (T 1121.15-18). As he drove into the park, Mr Cain recalled feeling “some resistance” but had assumed he had “pushed up” against debris from a nearby construction site or the gutter (T 1121.27-30). After this, he recalled a man exiting the car in front of him and saying words to the effect of “you’ve slammed into my car” (T 1121.42).

615. Mr Cain then observed that there was a small dent in his number plate and that the car in front had a large tow bar. Mr Cain recalled acknowledging contact had been made but stating words to the effect of “there is no damage to either vehicle so that’s a good thing” (T 1122.15-17). He recalled the plaintiff’s response to this was words to the effect of “well, that’s to be determined”. He further recalled that the plaintiff stated he had suffered neck injuries in the past (T 1122.19-21), before requesting Mr Cain’s details.

616. It was Mr Cain’s evidence that, due to his uneasiness over the interaction with the plaintiff and his feeling the incident was “bizarre” (T 1123.45), he filed an accident report with Australian Federal Police.

617. Under cross-examination, Mr Cain accepted the possibility that his car at the time had a flexible bumper bar which could absorb impact, and which might bounce back after impact (T 1126.10-14). Mr Cain denied, however, the proposition that he continued to push against the resistance; he stated that, once he felt the resistance, he “backed up” (T 1127.33-35).

618. In re-examination, the witness stated he did not see anything to suggest the other car was “jolted forward” (T 1128.20-23).

Expert Evidence – MVA 2

Dr John Bentivoglio

619. Dr Bentivoglio’s reports, referred to above at [155], do not assess the discrete impact of MVA 2.

620. When cross-examined by Mr Pappas for the NRMA defendants in relation to his reports, Dr Bentivoglio was asked to assume the factual scenario described by Mr Cain. Dr Bentivoglio agreed that, in those circumstances, he would not expect the plaintiff to have sustained any significant injury to his neck or chest wall (T 1468.25-37).

621. Dr Bentivoligo agreed that the plaintiff did not seek to relate any visual problems to MVA 2 (T 1473.45). In particular, the plaintiff did not attribute his slip and fall at the Phillip Medical Centre in October 2015 to diplopia arising from MVA 2 (T 1473.42).

622. Dr Bentivoglio made a number of relevant statements with respect to the plaintiff’s pre-existing conditions.

Dr Leon Le Leu

623. In his interview with Dr Le Leu on 8 September 2016, the plaintiff described MVA 2 as a “small accident”, saying that “a car came in from behind and ‘banged’ him” (Ex. 51 p. 69). Dr Le Leu’s report states that, after the accident, the plaintiff developed headaches and noticed poorer vision (Ex. 51 p. 69-70). At the time of the consultation, the plaintiff reported that, except for the vision problems, he felt he had recovered from the accident (Ex. 51 p. 70).

624. Dr Le Leu concluded in his report that the accident contributed 25% to the plaintiff’s thoracic spine injuries, worsened his vision (without quantifying the deterioration), and caused headaches (Ex. 51 p. 81).

625. When cross-examined by Mr Pappas for the NRMA defendants in relation to visual problems, Dr Le Leu accepted that ill-controlled diabetes can lead to fourth cranial nerve palsy and that many instances of that condition are idiopathic (T 1507.42- 1508.10).

626. Dr Le Leu considered it hard to determine how the plaintiff could have developed a thoracic spine injury on the basis of Mr Pappas’ description of the accident (T 1511.21- 26).

Dr Michael Delaney

627. In his report dated 22 September 2016, referred to above at [161], Dr Delaney noted the following (Ex. 51 pp. 40-41):

As a result of the motor vehicle accident on 30 August 2015 [sic], Mr Ryan told me that he had increased neck problems with increased headaches, but he did not have any direct eye injuries but did suffer a whiplash-type injury when his car was struck from behind.

628. He subsequently concluded the following:

The motor vehicle accident in August 2015 resulted in symptoms of central double vision that has not been present before, and this extended the area of double vision that he had. Again, the actual extent of his double vision has not been documented or measured anywhere. I believe his symptoms are genuine and are due to a decompensation of an already impaired ocular muscle coordinating system as a result of his whiplash type neck injury.

629. Dr Delaney further opined that the major cause of the plaintiff’s double vision at the time of examination was, however, the left fourth cranial nerve palsy which occurred in early 2016 (Ex. 51 p. 42). This conclusion was based on medical records dating back to 2006 (Ex. 51 p. 42). Importantly, these records indicated that the deterioration in vision following the 2015 accident had at least partially improved (Ex. 51 p. 42).

630. When cross-examined by Mr Pappas for the NRMA defendants and asked to assume a factual scenario as described by Mr Cain, Dr Delaney gave evidence that whiplash would not result from such an impact and fourth cranial nerve damage would be “virtually impossible” (T 1595.15-22). Moreover, there would not be any injury which could cause a deterioration of the co-ordinating mechanism of the plaintiff’s ocular movement (T 1599.23).

631. Dr Delaney accepted that fourth cranial nerve damage may also result from ill-controlled diabetes and would be more likely where there is a high blood sugar level. This was taking into account that the plaintiff’s blood sugar level was recorded as 20 around this time, when the plaintiff was assessed at the Canberra Hospital following MVA 2. Based on this, and combined with the assumption that Mr Cain’s versions of events was correct, Dr Delaney concluded it was “reasonable” to determine that the diabetic condition was the more likely cause of diplopia, rather than MVA 2 (T 1595-6). When informed that in October 2015 the plaintiff’s general practitioner noted the plaintiff had poor diabetic control, Dr Delaney considered it “more likely” that the diplopia was related to his diabetes (T 1597.2). Dr Delaney agreed that most causes of fourth cranial nerve palsy are idiopathic (T 1597).

632. In re-examination, Mr Menzies QC for the plaintiff put to Dr Delaney the version of events outlined in the plaintiff’s evidence. When asked to assume this version of events was correct, Dr Delaney considered diabetes “much less likely” to be a cause of diplopia, given the close relationship in time between the incident and symptoms (T 1609.46-1610.4).

Dr David Matison

633. After examination in chief by Mr Shillington for Bunnings and cross-examination by Mr Pappas for the NRMA Defendants and Mr Menzies QC for the plaintiff, Mr Shillington indicated that he did not press the balance of the report (T 1238).

Dr David Gorman

634. Dr Gorman’s report referred to above at [135] and dated 25 October 2017 states that MVA 2 aggravated the plaintiff’s cervical spine injury and caused tenderness in his thoracic spine (Ex. 51 p. 98). This opinion was based on a consultation with the plaintiff and provided no further detail as to the impact of MVA 2.

635. In cross-examination by Mr Pappas for the NRMA defendants, Dr Gorman confirmed that the plaintiff was able to give a clear account of his history and appeared to operate without any cognitive impairment (T 1261.31-1262.6). Dr Gorman stated he “definitely” would have noted down if a patient could not respond to simple questions without them being repeated or constantly indicated an incapacity to remember questions (T 1262.8- 15).

636. When asked to assume the defendant’s version of events, Dr Gorman agreed that it would be “almost impossible” for the plaintiff to have suffered some aggravation of underlying cervical spondylosis (T 1265.9-12). Dr Gorman stated the following: “with no jolting that’s [thoracic tenderness] almost impossible … patients do genuinely have whiplash at low velocity impacts, but that’s ridiculously low velocity, so I don’t think that could cause any major problems, no” (T 1265.19-23). He also agreed that, in those circumstances, the plaintiff’s diplopia would not have worsened as a result of the accident (T 1265.25-28).

Submissions of the Plaintiff

637. The plaintiff submitted that the defendant was never aware that he had touched the plaintiff’s car, and therefore he could not have been looking and would not have been able to comment on the effect of the impact on the plaintiff: at [86]. On the plaintiff’s submission, the other differences between the accounts of the plaintiff and the defendant can be attributed to “changes in recollection with the passage of time” as well as the significance of the accident for the plaintiff, compared with its relative unimportance for the defendant: at [86].

638. The plaintiff submitted that the Court should accept the plaintiff’s account of MVA 2 and, in particular, accept the evidence of Dr Delaney in relation to the plaintiff’s deterioration in diplopia being caused by MVA 2: at [92] and [94].

Submissions of the NRMA Defendants

639. The NRMA defendants noted that the plaintiff gave no evidence of the injuries particularised at (b), (c) and (e) above at [602], and, absent a significant collision or “jolting forward”, the injuries at (a) and (d) are inconceivable.

640. The NRMA defendants relied on the evidence of Mr Cain who, it was submitted, delivered a straightforward and believable account of an insignificant degree of contact between the vehicles at a time when he was inching his car forward with his foot on the brake and felt a small amount of resistance. The defendants contrasted this account with the plaintiff’s version, in which the plaintiff remained seated in the car throughout a discussion with Mr Cain and immediately complained of headaches (T 524-527). Further, the defendants noted that the plaintiff made no mention of being “jolted” until it was put to him in cross-examination.

641 . The NRMA defendants placed significance on the fact that Mr Cain was so concerned about the interaction he was compelled to make a statement to the police. That injury and damage was feigned was, in the defendants’ submission, consistent with the plaintiff telling Mr Cain, “that is to be determined. I have had neck injuries in the past”.

Diplopia

642. The NRMA defendants submitted that the evidence demonstrates that the plaintiff’s claimed diplopia has never been properly tested. Moreover, it was noted that the plaintiff had a history of diplopia associated with medication and ill-managed diabetes, and there was no complaint of diplopia when he attended the Phillip Medical Centre on 31 August 2015. In addition, it was submitted that the fall of 23 October 2015 was “extensively recorded without a hint of the fall somehow being caused by the claimed diplopia”.

643. It was also noted that Dr McGlynn’s evidence did not attribute any worsening of the plaintiff’s diplopia to MVA 2.

644. The NRMA defendants noted that, even accepting the plaintiff’s account of the development of diplopia, mere temporal connection does not amount to causation. In the plaintiff’s account of his diplopia and its relationship to the fall on 23 October 2015, the NRMA defendants noted that it does not accord with any description of a medical practitioner or any description of his alleged double vision given in court. It was put to the plaintiff that he had slipped on a lolly outside the medical centre, and it was the lolly that had caused him to fall, rather than diplopia. The NRMA defendants submitted that the plaintiff “accepted” that the fall was caused by a lolly. I note here that the plaintiff stated that he placed his foot on a lolly. He gave evidence that he then started “to slip forward and then I looked down because I had to make a decision very quickly over which step I was going to use, and that’s where I took the wrong step” (T 381.9-16).

Medical Evidence

645. By reference to the medical evidence, it was submitted that, if Mr Cain’s account is accepted, Dr Matison’s evidence demonstrates that no whiplash injury could have occurred, and no deterioration in diplopia could have resulted.

646. Further, assuming the same factual scenario, Dr Gorman agreed it would be “almost impossible” for there to be an aggravation of underlying cervical spondylosis or aggravation of diplopia, or that there would be thoracic spine tenderness occasioned. On the same factual assumptions, Dr Bentivoglio agreed it would be almost impossible for the plaintiff to have suffered an injury to his neck or chest wall (T 1468.25-40).

647. Dr Smith agreed that, absent a causal connection with the diplopia, MVA 2 was of “minor moment” in the overall context (T 1309.34-38).

648. With respect to the various aspects arising in cross-examination of Dr Bentivoglio, it was submitted that the plaintiff’s accounts were discordant with what was provided to various doctors preparing medico-legal reports; the accounts were undermined by an incomplete history; and the accounts were inconsistent with the circumstances of the motor vehicle accidents.

649. As to Dr Le Leu, in addition to those matters outlined above arising in cross-examination, the NRMA defendants noted a reference in his report to Canberra Hospital Emergency Department records which, on 31 January 2016, linked a worsening of diplopia with new medications. It was noted that there was no mention of diplopia with respect to the reported fall at the Phillip Medical Centre.

650. Beyond the matters arising in cross-examination, it was submitted that attempts to rehabilitate the evidence of Dr Delaney hinged upon acceptance of the plaintiff’s version of events.

651. In the NRMA defendants’ submission, MVA 2 was of such a trivial nature that no personal injury was or could have been occasioned, notwithstanding the plaintiff’s “frail and vulnerable habitus”: at [61].

Submissions in Reply

652. As noted above at [302], counsel for the plaintiff submitted a document with submissions in reply in relation to both MVA 1 and MVA 2. The submissions focused on the credibility issues in the case (discussed above) and reiterated earlier submissions in relation to psychological injuries and causes of diplopia. The final page of the document referred to medical evidence in relation to faecal loading and sleep apnoea but failed to relate either of these medical issues with one or both of the motor vehicle accidents.

653. The submissions in reply conclude with the following paragraph:

The defendant’s liability arises out of each of the 2 MVA’s in 2013 and 2015.They each caused the Plaintiff to either suffer diplopia or to continue it. Liability has been admitted in each case. A judgment must follow because the negligent conduct resulted in identifiable damage which was, in each event, caused serious injury [sic]. The quantum and apportionment overall are a matter for the court.

Consideration: MVA 2 (2015)

Factual Findings

654. As discussed above at [73]-[81], in my view the plaintiff is an unreliable witness. In this specific instance, I prefer the evidence of Mr Cain. As a consequence, in my view, the plaintiff’s account about the circumstances of this accident and the injuries said to arise from this particular accident are unreliable and lack credibility.

655. In assessing whether the plaintiff suffered injury and in assessing what disabilities flow from the accident, I make the following findings:

(a) There was a minimal and insignificant degree of contact between Mr Cain’s vehicle and the plaintiff’s vehicle while Mr Cain proceeded carefully while parking.

(b) The plaintiff’s vehicle was not “jolted forward” (T 1128.22).

(c) The plaintiff did alight from his vehicle and inspect the insignificant damage with Mr Cain.

(d) Mr Cain spoke to the plaintiff on only one occasion. Mr Cain did not speak to the plaintiff when Mr Cain subsequently returned to his vehicle.

(e) The plaintiff did not suffer injuries arising from this accident.

656. I am not satisfied on the balance of probabilities that the plaintiff suffered injuries arising from this accident.

Conclusion on Liability

657. In the Defence filed 27 July 2018, Mr Stephen Cain (The Second Defendant, SC 312 of 2017) admitted he breached the duty of care owed to the plaintiff (at [5]). It was denied that, as a result of the breach, the plaintiff suffered injury, loss and damage (at [6]).

658. The three questions to be asked are as follows. The first question is: did the defendant owe to the plaintiff a duty of care? The answer to that question is yes and has been answered as a duty of care has been admitted. The second question is: was the duty of care breached? The answer to that question is again yes and has been admitted. The third question is: did the breach cause injury? The answer to that question, consistent with my factual findings above at [654]-[656], is no.

659. It is customary in the usual case of a judgment on personal injuries to assess damages at this point. This is in the event of error on liability. In this case, in relation to this incident, however, such an assessment of damages is entirely dependent on findings of credit. It would be artificial to do so. The plaintiff’s lack of reliability or veracity in relation to this accident has cast a forensic shadow over his evidence generally.

660. The plaintiff submitted (at [3]) that:

The defendant equates “poor historian” with “dishonest historian” and then bases effectively the whole of its defence on making good that proposition. It fails, principally because an examination of the witness’s answers, taking into account his obsessive personality, his manner of wandering off the track, plainly a function of his personality and his disturbed state.

661. It is important that I underline at this juncture, as I have outlined earlier in the judgment, that the plaintiff lacks credibility in relation to the circumstances of this accident. This is not to equate a poor historian with a dishonest historian. I have been careful to distinguish matters that can be ascribed to “personality” and demeanour as opposed to proven unreliability and a lack of credibility.

662. I am not satisfied on the balance of probabilities that the plaintiff suffered any injury arising from this accident. I do not accept that the plaintiff gave reliable histories to his attending medical practitioners immediately after this incident.

Motor Vehicle Accident 3 (MVA 3 – 2018)

Introduction

663. It was agreed between the parties that, at approximately 6pm on 25 January 2018 on a roundabout of Coranderrk Street and Parkes Way, a motor vehicle accident occurred (see Statement of Claim at [3] and Defence at [1]).

664. In the Statement of Claim filed 26 November 2018, the plaintiff alleged the following injuries were suffered as a result of MVA 3:

(a) aggravation of neck injury;

(b) concussion;

(c) headaches;

(d) aggravation of diplopia;

(e) right side lower back injury;

(f) facet joints and disc injury;

(g) whiplash;

(h) double vision;

(i) development/aggravation of upper, middle to lower double vision;

(j) shock;

(k) anxiety with retrosternal pain and severe heart palpitations and rapid irregular pulse; and

(l) depression.

665. It was further alleged that the plaintiff suffered the following disabilities as a result of MVA 3:

(a) restricted movement in flexion and extension;

(b) decreased neck movement;

(c) pain in the cervicothoracic junction;

(d) headaches;

(e) developing symptoms of blurring in both eyes;

(f) difficulties with reading;

(g) difficulties with driving;

(h) generalised constant pain as well as radiating to his face;

(i) dizziness;

(j) recurrent depressive illness;

(k) inability to continue to work as a security guard and to undertake night club activities and having to reduce his chiropractic work;

(l) increased levels of pain and restricted movements; and

(m) marked deterioration in his vision, causing him to fall from a ladder at his home on 8 February 2018 (the February Fall) sustaining further injuries, including aggravation of neck injury, increased neck pain, increased headaches, compression blowout fractures at L1 and L3, nerve issues at L1 (supply to stomach), pain radiating to both legs, thoracic spine tenderness, and injuries to upper and lower back.

666. The plaintiff claimed for past and future economic loss with respect to his employment as a security guard and chiropractor. The plaintiff further claimed for out of pocket expenses and a Griffiths care component.

Medical Baseline

667. In oral submissions, it was submitted the plaintiff suffered from ongoing issues related to his neck and spine at the time of MVA 3. He also suffered from headaches, some level of diplopia, and psychological disturbances such as anxiety, palpitations, and depression (T 1690). Counsel for the GIO defendants accepted these pre-existing conditions, and further drew attention to reports from Dr Le Leu and Dr Gorman in 2016 and 2017 respectively that outlined the plaintiff’s “significant incapacity” (T 1692.6-15) at that time. Counsel noted that, prior to the fifth accident, “in both a physical and psychological sense [the plaintiff] has significant injuries and is deemed, by his own experts, to be totally incapacitated for work already” (T 1694.2-4). Evidence

Lay Evidence

The plaintiff

668. It was the plaintiff’s evidence that, on 25 January 2018, he was driving in Coranderrk Street, and having approached a roundabout was waiting at the “dotted lines” when a car collided with the rear of his car (T 142.4-15). The plaintiff stated that he exited his car and proceeded to abuse the other driver; he then proceeded to lay on the grass as he was feeling “dizzy and disorientated and nauseous” (T 142.30-40). The plaintiff conveyed these symptoms to ambulance officers when they arrived, and also reported soreness in his neck (T 143).

669. The plaintiff gave evidence that he was wearing a seatbelt and his head did not hit anything in the vehicle (T 825.9-20).

670. The plaintiff also gave evidence that he felt lower back pain on the right side following MVA 3 (T 144.9). He also described the pre-existing lateral double vision as changing in that it became “horizontal double vision” (T 146.46), seeing two images overlapping horizontally (T 147.36).

671. This evidence appeared somewhat at odds with the plaintiff’s evidence in chief, where he stated that his central double vision lessened after MVA 3 (T 27.14-23). The evidence concerning diplopia appeared to lack clarity.

672. The plaintiff also described experiencing tinnitus, nausea, dizziness, tiredness, and neck tension following the accident (T 156).

673. In the course of giving evidence in relation to MVA 3, the plaintiff gave evidence about his change in mood following each of the relevant incidents and dating back to the Bunnings Incident in 2012. He stated that he is “not the same person [he] was a number of years ago, by any means” (T 151.33-35). The plaintiff further gave evidence that he is “a pain in the arse to everybody” and that he is “grumpy” and “short” and has “become very isolated” as a result (T 152.45-153.5). The plaintiff stated that the impact of his physical condition and his consequent inability to work “helps make [him] grumpy” and “makes [him] depressed” (T 154.19-155.3).

674. In cross-examination, after agreeing that the 2015 fall was caused by diplopia, the plaintiff was taken to a report of Dr Nolan of 23 October 2017, where it is recorded the plaintiff expressed a fear of falling. The plaintiff confirmed he continues to hold that fear (T 822-4).

675. The plaintiff accepted that he did not tell Dr Smith, a psychiatrist, of the accident when he saw him on 6 February 2018 (T 829.46).

676. With respect to the February Fall, the plaintiff denied that the fall was caused by the double vision he had always had (T 843.22)

Expert Evidence – MVA 3

Dr Thomas Gibson

677. Dr Gibson is the principal engineer and director of Human Impact Engineering and has over 30 years of experience in the area of the biomechanics of impact injury causation and mitigation. He was retained by the GIO defendants and prepared two reports in relation to MVA 3, dated 1 February 2019 and 14 August 2019.

678. In his report dated 1 February 2019, Dr Gibson opined that the lack of any reported damage to both vehicles indicates that the collision occurred at a velocity of less than 4 km/h (Ex. 5 p. 415). In a later report dated 14 August 2019, Dr Gibson revised his opinion to conclude that the crash involved a velocity change of between 4km/h and 8km/h (Supplement to Ex. 5 p. 3). This was based on new evidence that there had been some damage to the plaintiff’s car as a result of the accident (Supplement to Ex. 5 p. 1).

679. Dr Gibson concluded: “The biomechanical forces the plaintiff’s body was subjected to in the rear impact here were not sufficient to cause the claimed level of injury” (Ex. 5 p. 415). Further, he noted that it was “not possible” that the plaintiff had suffered concussion as a result of the accident (Ex. 5 p. 415). In his later report, Dr Gibson maintained that, despite his revised estimate of velocity change, the claimed injuries were still “inconsistent with the physical evidence of the accident” (Supplement to Ex. 5 p. 3).

680. Dr Gibson noted that the effect of the accident on any pre-existing medical conditions could only be addressed through medical evidence (Ex. 5 p. 415).

681. Dr Gibson’s report provided an overview of whiplash associated disorder (WAD) and research into injuries associated with WAD (Ex. 5 p. 411-412):

Whiplash associated disorder (WAD) relates to the range of symptoms that arise following a motor vehicle accident, typically involving a low speed rear impact. Damage to the soft tissue of the cervical spine in these events may cause symptoms of pain, stiffness or tenderness in the head/neck/shoulder complex. In rear impacts the injury mechanism for WAD appears to be a combination of shear load on the cervical region of the spine due to the head inertia load resulting from the crash and the compression load due to the straightening of the spine due to pressure from the seat back. … Szabo and Welcher (1996) investigated ten nominal 16 km/h closing speed rear car-to-car impacts using instrumented human subjects. Seven male and three female subjects, aged 22-54 years, were exposed to two rear impacts over two days, and no injuries were sustained by any occupant under a delta v of 8-10 km/h. They concluded that a rear impact with a change in velocity of 8km/h or less is within tolerance for a human occupant, assuming the presence of a head restraint and normal seating position. A Swedish study used recorded crash pulses from actual rear impacts to investigate 79 crashes with 110 occupants with known whiplash injury outcomes in terms of duration of neck pain. This study found that symptoms of neck pain occurred down to vehicle speed changes of only 3 km/h and peak vehicle longitudinal accelerations of 3 g (where g is acceleration due to gravity). These symptoms were of less than one-month duration. For cases of persisting pain (longer than one-month duration), the velocity change was at least 10 km/h, with peak accelerations of greater than 5 g. (Citations omitted).

682. In cross-examination, Dr Gibson accepted that, having regard to the “very large list of pre-existing conditions” of the plaintiff, he would defer to medical opinion as to causation of any injury (T 1216.27-33). He also accepted he could not give evidence regarding any damage to the eye (T 1218.11-22). Dr Gibson did give detailed evidence on his experience and research with respect to neck injuries, as this was the subject of his PhD (T 1218-19). Dr Gibson accepted that the disorder related to whiplash is not always easily able to be determined but noted that it “may not affect everyone who claims such” (T 1220.20-23).

683. He accepted that the photographs he was provided with indicate more significant damage that what was assumed for his original opinion (T 1216.35-38). He rejected that his revised estimate was conjecture. To support this, he referred to a crash test conducted on a similar vehicle in Switzerland where, in Dr Gibson’s view, the damage was “significantly higher” (T 1217-1218).

Dr Glen Smith

684. In his report dated 7 February 2018, referred to above at [141], Dr Smith makes no mention of MVA 3 (Ex. 51 pp. 105-117). In cross-examination by Mr Onitiri for the GIO defendants, Dr Smith accepted that, in the history provided by the plaintiff during the consultation on 6 February 2018, the plaintiff made no mention of MVA 3 nor any mention of dizziness or disorientation (T 1318.19-29).

685. In a further report dated 5 November 2018, Dr Smith stated that “Mr Ryan continued to present with depressive symptoms of fluctuating severity” (Ex. 51 p. 126). The February 2018 fall from the ladder, in Dr Smith’s opinion, contributed to an aggravation of the plaintiff’s depressive symptoms (Ex. 51 p. 126). Dr Smith concluded that there had been “a partial remission of depressive symptoms but not complete resolution” (Ex. 51 p. 127). Dr Smith noted that the extent of the impact of MVA 3 and the February Fall on the plaintiff’s psychological state was highly dependent on the significance of the physical injuries suffered, which he recognised as outside of his area of expertise (Ex. 51 p. 128).

686. In cross-examination, Dr Smith accepted that, even allowing for the occurrence of MVA 3 and the fall from the ladder in February 2018, by November 2018 the plaintiff’s condition had improved beyond that in February 2018 (T 1320.9-12).

Dr Leon Le Leu

687. Dr Le Leu was asked to prepare a further report in relation to MVA 3. This report, dated 10 February 2019, was based on medical documentation and information provided by the plaintiff’s lawyers; Dr Le Leu was unable to conduct a consultation with the plaintiff in relation to the preparation of this report (Ex. 54 no. 13 p. 2). The report contained the following opinion (Ex. 54 no. 13 p. 5):

Based on the information I have that the 2018 MVA was a low-speed collision and there appears to be no significant new medication required for an exacerbation of his pre-existing injuries, there would be no apportionment which included the 2018 MVA. I shall treat the ladder incident as being outside this sort of consideration since the association with his previous injuries is not clear and such an incident could not clearly be distinguished from other falls from ladders occurring in able-bodied people.

688. Following this report, a further consultation was organised between Dr Le Leu and the plaintiff, and a further report was produced, dated 16 February 2019 (Ex. 54 no. 15). This report was based substantially on the plaintiff’s account of both MVA 3 and the February Fall.

689. In this report, Dr Le Leu stated that it was probable that MVA 3 did cause concussion and that it is possible the concussion affected the plaintiff’s judgment such that he decided to go up the ladder for the bathroom painting (Ex. 54 no. 15 p. 6). The report stated that the plaintiff complained that his immune system had been “shot”; Dr Le Leu noted in the report that it would be “extremely difficult to tie any immunological changes to any of these accidents” (Ex. 54 no. 15 p. 7).

690. Dr Le Leu suggested that the proportion of continuing disability directly attributable to MVA 3 is “negligible and possibly zero” (Ex. 54 no. 15 p. 13). He further maintained his previous assessment that no appropriate apportionment of injuries would include MVA 3 (Ex. 54 no. 15 p. 14). Dr Le Leu attributed 50% of the plaintiff’s lumbar spine injuries to the February Fall but did not directly address the link between MVA 3 and the fall, other than to note the possibility of concussion affecting the plaintiff’s judgement (Ex. 54 no. 15 p. 14).

691. When cross-examined by Mr Onitiri for the GIO defendants in relation to his report, with respect to the link between the fall from the ladder to dizziness experienced as a result of the accident, Dr Le Leu accepted that he was reliant on the accuracy, completeness and honesty of the plaintiff’s account and whether a concussion had in fact occurred (T 1533.41-1534.10).

692. Dr Le Leu gave evidence that the plaintiff did not inform him that he had upwards gaze diplopia which caused pain when looking upwards, resulting in ‘white blotches’ and dizziness and disorientation. Taking this with the assumption that the plaintiff did not continue to suffer dizziness after the accident, Dr Le Leu accepted that he “can’t be confident” regarding his conclusion that post-concussion dizziness caused the fall (T 1534-37).

Professor Richard Mattick

693. Professor Richard Mattick is a clinical psychologist who prepared a report dated 23 January 2019 at the request of the GIO defendants. The report was based on a review of documentation rather than a consultation with the plaintiff.

694. Professor Mattick’s report contains a detailed review of the available documentation. In the report, Professor Mattick notes that the plaintiff suffered from a number of disabilities relating to depression, cognitive dysfunction, pain, and his ability to work; however, he states that all of those disabilities “appear to have pre-dated any injury in 2018” (Ex. 5 p. 392). Due to the fact these incidents pre-date 2018, Professor Mattick noted that “it is not possible to reasonably or confidently ascribe any further complaints to the event on 25.1.18” (Ex. 5 p. 393).

695. Professor Mattick’s report further noted that there is no reasonable evidence to support the proposition that the plaintiff suffered any head injury or concussion as a result of MVA 3 (Ex. 5 p. 394). In making this comment, Professor Mattick relied in particular on the fact that the ACT Ambulance Service checks found no evidence of any injury (Ex. 5 p. 394).

696. When cross-examined by Mr Menzies QC for the plaintiff, Professor Mattick accepted that vomiting and nausea and an inability to recall information were not inconsistent with concussion (T 1550.33 and 1553.5-7). Professor Mattick noted, however, that the plaintiff has “a range of quite significant health problems which all have … symptoms of dizziness and nausea”, including, for example, diabetes, double vision, opioid medication use, gastroesophageal reflux disease, hyperglycaemia, and hypoglycaemia (T 1554 and 1558.25-34). Dr Michael Delaney

697. Dr Delaney produced a further report dated 18 October 2018 in relation to MVA 3. His diagnosis in relation to this accident was as follows (Ex. 51 p. 48):

Mr Ryan suffered an injury including significant concussion in the motor vehicle accident on 25 January 2018. I believe that this incident is the main contributing factor to the change in his double vision. The reasons for this are that Mr Ryan clearly stated that the double vision had changed immediately after the accident and that he only noticed the change in the double vision on upgaze when he attempted to climb a ladder at home and whilst scaling the ladder he became disorientated due to the change in his double vision and fell backwards, suffering injuries to his lumbar and thoracic spine as noted in your instructing letter.

698. When cross-examined by Mr Onitiri for the GIO defendants in relation to this report, Dr Delaney agreed that he relied on the plaintiff’s account of the events that he had suffered a significant concussion. This was also referred to in the letter of instruction (T 1601-2).

699. Dr Delaney accepted that the plaintiff did not tell him that he had suffered from upwards gaze diplopia before MVA 3, or that this caused pain when looking upwards as well as dizziness and disorientation (T 1604). Dr Delaney accepted that, had he been made aware of pre-existing symptoms, he would not have been able to conclude MVA 3 was the cause of the February Fall (T 1606.21-27).

700. Dr Delaney also gave evidence that the plaintiff did not tell him of any blow to the head received on 30 December 2017 from a bus door, which he agreed could have caused the change in diplopia (T 1607.8-25)

701. Dr Delaney gave evidence that, if those symptoms were present as at or before January 2018, he would have warned the plaintiff not to work at heights given the risk of falling (T 1605.36-42).

702. In re-examination by Mr Menzies QC for the plaintiff, Dr Delaney accepted that, prior to MVA 3, had the symptoms of diplopia improved, there was no particular relevance of the plaintiff not disclosing a complete history (T 1610).

Submissions of the Plaintiff

703. In respect of MVA 3, the plaintiff submitted that, as direct result, the plaintiff sustained an aggravation to his neck injury, concussion and headaches, aggravation of diplopia (“development/aggravation of upper, middle to lower double vision”), lower back injury and psychological shock (“anxiety with retrosternal pain and severe heart palpitations and rapid irregular pulse – depression”). It was conceded he was “not knocked out” during the accident: at [98] and [103].

704. With respect to the reports of Professor Gibson and his conclusion as to the insufficiency of the impact to cause the alleged injury, the plaintiff submitted that three important concessions were made in the course of oral evidence:

(a) that Professor Gibson would defer to medical opinion as to causation of injury, particularly with respect to pre-existing injury (T 1216.30);

(b) that Professor Gibson has no expertise with respect to the structures of the eyes (T 1218.10-22); and

(c) that, in relation to whiplash injuries, it is often not possible to define that there is a physical injury that is observable (T 1219.20-28).

705. It was submitted that the reports of Professor Gibson should “provide no assistance in determining causation of injury”.

706. The plaintiff submitted that the February Fall was caused by dizziness and diplopia. As a result of the February Fall, the plaintiff is alleged to have suffered: aggravation of his neck injury, increased headaches, compression blowout fractures of L1 and L3, nerve issues at L1, pain radiation to both legs, injury to upper back, and thoracic spine tenderness.

Submissions of the GIO Defendants

707. The GIO defendants noted that the plaintiff bears the onus of establishing the February Fall is casually connected to MVA 3: Wrongs Act s 46. It was submitted that this onus has not been met. In particular, it was submitted the alleged marked deterioration in vision said to have contributed to the February Fall was not established to have been caused by MVA 3.

708. In the defendants’ submission, the plaintiff instead “sought to develop a narrative” to establish the requisite causation, noting Dr Delaney’s reference in his October 2018 report that:

Mr Ryan specifically told me that he became aware of the change in the double vision after the motor vehicle accident, but he only noticed the double vision in upgaze when attempting to climb a ladder on 8 February 2018.

709. However, the GIO defendants submitted that the plaintiff’s oral evidence made no reference to double vision whilst up the ladder; rather, his evidence was that he simply experienced dizziness. No evidence was given as to the position of the plaintiff’s head relative to his line of sight so as to infer whether central, upper or lateral vision was being used.

710. Moreover, the GIO defendants pointed to evidence of the plaintiff that he had pre-existing diplopia in his left upper lateral vision dating back to the assault in 2006 (T 193.43), and which was triggered by looking up towards the ceiling (T 194.19, 262.1). Indeed, the plaintiff gave evidence that he experienced dizziness and disorientation as a result of this pre-existing upward gaze diplopia (T 801.1-5). The defendants submitted that this information was withheld from Dr Delaney. The defendants referred to Dr Delaney’s evidence that, had he been presented with such information when preparing his October 2018 report, he “would not have been able to conclude that the January motor vehicle accident was the cause of his fall from the ladder” (T 1606.21-27).

711. While the GIO defendants noted Dr Delaney’s evidence that the pre-existing condition would be less relevant if it had resolved by MVA 3, it was submitted that this assumption is not supported by the evidence, including: the plaintiff’s evidence that it had “always been there” until 2018 (T 193.44; T 194.31; T 801.9-15); Ms Southorn had described the plaintiff becoming dizzy from upward gaze diplopia; and the plaintiff reported to Dr Curtis that he had experienced upwards gaze diplopia since 2006.

712. In respect of the allegation that the plaintiff suffered a concussion, the defendants submitted that this alleged fact is not supported by the evidence, noting in particular:

(a) the collision was low speed and there was no expert evidence adduced as to how fast Mr Bhagria was travelling; (b) Dr Gibson opined the force of the accident, involving a change in velocity of between 4 km/h to 8 km/h, was not sufficient to cause the alleged injuries (Ex. 5 p. 399);

(c) the plaintiff gave evidence he was wearing a seatbelt and there was no head strike (T 825.17-19);

(d) the AFP Case Summary noted “little to no damage to both vehicles”;

(e) Dr Delaney relied upon the plaintiff’s report and his letter of instruction for his assumption of concussion, and the reference to concussion in the form signed by Dr Broderick had been inserted by the plaintiff himself;

(f) Professor Mattick opined that the evidence did not support a finding of concussion; and

(g) In cross-examination, Dr Le Leu stated he would not have been confident to draw his conclusion that the alleged concussion caused the February Fall had he known of the pre-existing upward gaze diplopia (T 1534-37).

713. In the GIO defendants’ submissions, reliance was also placed on the head injury sustained by the plaintiff on 30 December 2017. The plaintiff was struck by the boot or back of a bus one month before MVA 3. The plaintiff accepted that this event caused a laceration and dizziness (T 847.44-46). Relevantly, this had not been disclosed by the plaintiff to Dr Delaney, who, when provided this history in cross-examination, agreed it was a significant event (T 1607.21) and conceded if he had been provided this history he could not have attributed the change in the plaintiff’s diplopia to either event (T 1607.30-32). In response to Dr Delaney’s evidence in re-examination that the incident may not have been as relevant absent a history of diplopia after the incident, the GIO defendants repeated their submission regarding the pre-existing diplopia (see above at [710]).

714. In the GIO defendants’ submission, the preponderance of the evidence suggests the February Fall was caused by longstanding upwards gaze diplopia. Alternatively, it was submitted the fall could also have been caused by a loss of balance from pre-existing downwards gaze diplopia, noting the warning of Dr Delaney in 2016 regarding the use of stairs (T 1605.20-26). The defendants noted the plaintiff’s evidence that he had a longstanding fear of falling as a result of diplopia (T 822-824).

Submissions in Reply

715. In submissions in reply, the plaintiff asserted three errors in the submissions of the GIO defendants:

(a) That diplopia needed to be caused by trauma sufficient to cause concussion, rather it was submitted by the plaintiff that “a slight blow can cause it”.

(b) That there was no evidence of the plaintiff experiencing a change in his diplopia following MVA 3. In the plaintiff’s submission, it was the change in nature of the diplopia that was significant, not the fact that the plaintiff had pre-existing diplopia.

(c) That there was no evidence that the diplopia when he looked upwards did not cause him to lose balance.

716. It was submitted that, at the time of the February Fall, the evidence of Dr Delaney supported the fact that the upward gaze diplopia was caused by fourth cranial nerve palsy and that the mechanism of the fall was “disorientation when he climbed a ladder and looked upwards”. It was submitted that the fact that the plaintiff did not describe the mechanism in his evidence does not amount to a lacuna as it was sufficiently described to Dr Delaney.

717. Additionally, the plaintiff submitted it was incorrect to assert that the assumptions underpinning Dr Delaney’s report were wrong, noting he was relying on a change in nature of the diplopia, not the emergence of it. Moreover, it was submitted that, should the evidence not establish concussion, this would nevertheless not be necessary for a change in diplopia.

718. In the plaintiff’s submission, the GIO defendants omit that the pre-existing diplopia was “upper lateral diplopia” which was not what was experienced after MVA 3. The plaintiff submitted it was mere speculation by the GIO defendants that the diplopia occurred when looking down rather than upwards, submitting that it was in any event more likely he was looking upwards in the circumstances.

719. The plaintiff submitted the following in relation to the plaintiff’s diplopia (Submissions in Reply at [5]):

The assertion that the plaintiff’s evidence (paragraph 14) did not prove the claims as pressed is wrong. The plaintiff does not rely on histories given to various medico-legal and treating doctors as sufficient proof of the history given. There is evidence contained in medical reports such as Dr Steiner, Dr Matison and Dr Delaney which provide objective evidence in support of the plaintiff’s claims concerning diplopia amongst other things and in any event the defendant’s submissions accept that he suffers from diplopia.

Consideration: MVA 3 (2018)

Factual Findings

720. As discussed above at [73]-[81], in my view the plaintiff lacks credibility and is an unreliable witness. I am not satisfied on the balance of probabilities that the plaintiff suffered concussion as a result of this accident. I accept the submission of the GIO defendants that concussion is not supported by the preponderance of the evidence, including the following:

(a) the accident was a low speed collision (T 825.9-10);

(b) the plaintiff was wearing a seatbelt and there was no head strike (T 825.17-19);

(c) police reported little to no damage to both vehicles (T 825.34-36); and

(d) Dr Gibson, a biomechanical engineer, opined that the force of the accident was not sufficient to cause the level of injury claimed. This was after adjusting his opinion as to the likely change of velocity from below 4km per hour to 4km-8km per hour. His opinion remained that the force of the accident was insufficient to cause the claimed level of injury (Supplement to Exhibit 5).

721. I find Dr Gibson’s evidence persuasive, and I accept his evidence.

722. I am further not satisfied on the balance of probabilities that the plaintiff has proved a causal connection between MVA 3 and the February Fall. In this regard, I again accept the submissions of the GIO defendants. Such causation is not established on the evidence, including the following conflicting evidence:

(a) the plaintiff gave evidence that “upper left side diplopia” had “always been there” since 2006 (T 194.31); and

(b) the plaintiff gave evidence that the blotching in his vision caused by longstanding upward gaze also caused him to become dizzy and disoriented. He experienced symptoms from 2006 to 2018 (T 800-801).

723. I am not satisfied on the balance of probabilities that the plaintiff suffered any injury arising from this accident.

Conclusion on Liability

724. In the Defence filed 8 February 2019, the GIO Defendants admit that the collision occurred and that Mr Bhagria was negligent by “failing to avoid colliding with the plaintiff’s vehicle”. The GIO defendants denied any loss, damage or injury. They denied that the plaintiff fell from a ladder in February 2018 and further denied that there was any causal connection between MVA 3 and the alleged fall.

725. The three questions to be asked are as follows. The first question: did the defendant owe the plaintiff a duty of care? The answer is clearly yes, and the duty of care is admitted. The second question is: was the duty of care breached? The answer to that question is again yes and has been admitted. The third question is one of causation: did the breach cause injury? The answer to that question is no, consistent with my factual findings and the medical evidence.

Damages: MVA 3

726. Because of my decision on liability, I do not intend to deal with the question of the damages I would have awarded. In this case, in relation to this incident, such an assessment of damages is entirely dependent on findings of credit. It would be artificial to assess damages in relation to this incident.

Griffiths v Kerkemeyer

727. The plaintiff has claimed compensation under s 100 of the Wrongs Act, also referred to as ‘Griffiths v Kerkemeyer damages’. Section 100 provides as follows:

100 Damages for loss of capacity to perform domestic services 1) A person’s liability for an injury suffered by someone else because of a wrong includes liability for damages for any resulting impairment or loss of the injured person’s capacity to perform domestic services that the injured person might reasonably have been expected to perform for his or her household if the injured person had not been injured. 2) In an action for the recovery of damages mentioned in subsection (1), it does not matter— a. whether the injured person performed the domestic services for the benefit of other members of the household or solely for his or her own benefit; or b. that the injured person was not paid to perform the services; or c. that the injured person has not been, and will not be, obliged to pay someone else to perform the services; or d. that the services have been, or are likely to be, performed (gratuitously or otherwise) by other people (whether members of the household or not). 3) In this section: wrong means an act or omission (whether or not an offence)— a. that gives rise to a liability in tort; or b. that amounts to a breach of a contractual duty of care that is concurrent and coextensive with a duty of care in tort.

Evidence of the Plaintiff

728. The plaintiff gave evidence that his partner Ms Southorn assisted him in daily tasks such as cooking, ironing, and driving. Other than immediately following medical procedures, the plaintiff gave evidence that there was “not a great deal of difference” between the care provided by Ms Southorn before and after the Bunnings Incident (T 35.13). At the time of the initial injury (the Bunnings Incident) in 2012, the change in her role was described as “fairly minimal” (T 35.32). The plaintiff gave evidence that, “after a period of time”, more assistance was required and “things started to get a bit more intensive” (T 35.36-40). The plaintiff gave evidence that this assistance later increased to 3 to 4 hours a week, but he was unable to recall when this increase occurred (T 37.1-18). When asked whether there was any increase between the Bunnings Incident and the Eastlake Incident, the plaintiff replied that he did not think so and did not remember (T 39.42-44). When asked about the impact of surgeries between 2012 and 2014, the plaintiff replied that there was an hour of “nursing” assistance required a day (T 40.11-29).

729. In cross-examination by Mr Pappas for the NRMA defendants, the plaintiff accepted that assistance of 27 hours a week following the Bunnings Incident would be a “gross exaggeration” (T 254.41). Subsequently, the plaintiff agreed that, the reference in the Statement of Particulars to him requiring 27 hours of domestic assistance from 18 January 2012 was not correct (T 516-7). It should be noted, however, that in an amended Statement of Particulars filed in Court on 18 February 2019, the plaintiff significantly lessened this claim, seeking an award for 1.5 hours a day between 18 January 2012 and 18 July 2013, and from July 2013 to date an average of 5 hours per week.

730 . Furthermore, in a letter from Capital Lawyers to HWL Ebsworth dated 28 September 2017, the plaintiff’s solicitors indicated that the plaintiff was claiming past domestic assistance as follows (Ex. 18 at [12]):

The plaintiff claims past domestic assistance provided by Mary Southorn and Nathan Chapman from January 2012 to February 2014. This included performance of general domestic chores including gardening work. Mary Southorn and Nathan Chapman provided approximately 2.0 hours a day of domestic assistance per week. Since February 2014, the plaintiff’s domestic assistance needs have become greater due to the central double vision issues that he suffers from. It is estimated that the plaintiff now 4 requires domestic assistance at 7 hours a week on average.

4 There appears to be some confusion in this letter, as it was stated that the support increased from 2 hours a day (amounting to 14 hours a week) to 7 hours a week. It is not clear on the evidence exactly how many hours of assistance are claimed in relation to each time period.

731. In cross-examination by Mr Pappas for the NRMA defendants, the plaintiff accepted that two hours a day was “feasible” (T 518.24-25).

732. The plaintiff gave evidence that he required more assistance between 15 February 2014 and 30 August 2015 (T 41.6), including with administrative tasks. He was unable to give an hours per week figure himself (T 41.15)

733. Between 30 August 2015 and October 2015 (when the fall at the doctor’s surgery occurred), the plaintiff gave evidence that the level of assistance required increased again (T 41.31). It was in the period the plaintiff alleged he developed central double vision which made it difficult to do things in the “long gaze field” which made tasks relating to “close things” difficult (T 41.35-43). He was unable to give an hours per week figure himself (T 41.45).

734. After the fall at the doctor’s surgery, there was a difference in the level of assistance as the plaintiff deposed that he was unable to walk “properly” for period of time (T 42.3). Between October 2015 and 25 January 2018, the plaintiff gave evidence that his capacity to look after himself decreased and Ms Southern increased her assistance, including cooking and washing (T 43.8). He was unable to give an hours per week figure himself (T 43.20).

735. The plaintiff also gave evidence that he was assisted in the home by a Nathan Chapman, employee of his nightclub, from 2012 to approximately 2015, covering the first four incidents. Mr Chapman was said to have helped with a number of physical activities, particularly in the garden on a weekly basis for 6 hours a week in 2012-2013 and 8 hours a week in 2014-2015. (T 163-4).

Evidence of Ms Mary Southorn

736. Ms Southorn gave evidence that in the period prior to 2012, the plaintiff would assist her with certain tasks that she could not do as a result of a chronic bronchiectasis condition, including: stocking and carrying wood for a combustion heater, washing clothes and hanging them out, vacuuming floors, carrying groceries, and completing gardening tasks (T 959-60). Ms Southorn testified that she understood the plaintiff had been receiving a carer’s allowance for approximately two to three years (T 984.27).

737. Following the Bunnings Incident, Ms Southorn observed the plaintiff “started to slow down” in carrying out these activities and, compared with before the Bunnings Incident, Ms Southorn gave evidence that presently “he virtually does nothing” (T 960.10-18). After the Bunnings Incident, Ms Southorn’s evidence was that she took over doing tasks that the plaintiff previously carried out and assisted him with tasks as and when they needed to be done. Accordingly, Ms Southorn was not able to allocate a number of hours she undertook doing such tasks (T 962.35).

738. Ms Southorn gave evidence that she now drives the plaintiff and waits for him during medical appointments, which, after recently keeping a “tally” she indicated could be up to eight hours a day and on two to three days per week (T 971.15-18). She also gave evidence that she reads to the plaintiff as he is unable to do so (T 1002.3).

739. Ms Southorn agreed that the tasks she undertook began shortly after the Bunnings Incident and continued to get worse over time, although she could not identify any times of particularly significant changes (T 964.30-37 and 970.29-30).

740. Ms Southorn also gave evidence that, after the Bunnings Incident, Nathan Chapman and her son would also assist with tasks the plaintiff could no longer do, including gardening, heaving lifting, and cleaning (T 967.6-20 and 982.45).

741. Presently, Ms Southorn stated that she assists the plaintiff changing his clothes as the double vision results in food being spilt, and because the plaintiff suffers from incontinence (T 963.1-3).

742. In cross-examination by Mr Pappas for the NRMA defendants, Ms Southorn gave evidence that she was only aware of there being an issue with the plaintiff’s eyesight in the last two or three years (T 978.11-13).

743. In cross-examination by Mr Kelleher for Eastlake, Ms Southorn accepted she carries out tasks for the plaintiff on the assumption that he is telling her the truth that he is unable to do them himself (T 1002.8-13).

744. In addition to her oral evidence, Ms Southorn provided a handwritten note that was marked Exhibit 40. The note was prepared in about 2016 when the plaintiff was going through bankruptcy proceedings and Ms Southorn was asked to prepare a statement regarding the plaintiff’s behaviours at that time (T 967). The statement included the following:

Depressed for ages. Angry with everyone and everything. Has no patience … Starts things and loses concentration and moves on to something else … He’s often frustrated as he can’t see things properly … He forgets simple things … He has tempter tantrums and throws things about … He has so many aches and pains …

Plaintiff’s Submissions – Griffiths Damages

745. The plaintiff claimed damages pursuant to the principles in Griffiths, noting that this area is now governed by s 100 of the Wrongs Act.

746. The plaintiff noted that the plaintiff lives in a six-bedroom house, with three toilets and two bathrooms, with mostly timber floor. The yard is approximately 1450 square metres, with a mix of brick, grass and garden. The plaintiff shares the house with his ex-partner, Ms Southorn, who inhabits the upstairs of the house, while the plaintiff has two rooms and a bathroom to himself downstairs.

747. The plaintiff claimed past domestic assistance, including domestic chores and gardening, provided by Ms Southorn from 18 January 2012 to the present, for approximately 2.5 hours a day: at [407]-[408].

748. The plaintiff submitted that, prior to 18 January 2012, the plaintiff had minimal domestic assistance requirements: at [409].

749. The plaintiff further claimed for future commercial assistance at the rate of 1 hour per week for the remainder of his life, at the commercial rate of $55.66 per week: at [410].

Submissions of Eastlake – Griffiths Damages

750. Eastlake made the following submissions in relation to past voluntary assistance at [414] ff:

(a) the reports of Dr Le Leu, Dr Gorman or Dr Bentivoglio do not support the need for, or quantify the extent of, any domestic assistance in respect of the injuries alleged to have arisen in the Eastlake Incident; (b) between the Eastlake Incident and MVA 2 (2015), the plaintiff and Ms Southorn were living “separately and apart” (T 993.39-44) and therefore it is hard to 5 envisage how she could have provided domestic assistance in that period ;

(c) in the period following the Eastlake Incident, the plaintiff was running his own, unrelated litigation, which is “a telling fact against any need for assistance with day to day tasks”;

(d) the plaintiff reported to Dr Saboisky in August 2017 that he did a number of domestic tasks to provide support to Ms Southorn (Ex. 5 p. 351)

(e) the plaintiff still receives a small pension for being Ms Southorn’s carer;

(f) Ms Southorn was a relatively unimpressive witness, and her credibility was damaged by her admission that she has failed to declare income on a number of rental properties since her retirement (T 998);

(g) there was no evidence led from Ms Southorn about the effects, if any, of the Eastlake Incident; and

(h) in cross-examination, Ms Southorn “made it clear that the vast majority of tasks she performs for [the plaintiff] are due to eyesight problems and that he performs duties around the home like gardening, mowing and firewood” (T 1000-1002).

751 . Eastlake concluded that “there is simply no evidence to support any claim for past or future domestic assistance arising from the Eastlake Incident”: at [428].

GIO Defendants’ Submissions – Griffiths Damages

752 . The plaintiff’s schedule of damages makes a claim for $3,116.96 against these defendants for past gratuitous assistance. The GIO defendants submitted, however, that “there is simply no evidence that demonstrates any additional need for domestic assistance attributable to either the motor vehicle accident or the fall from the ladder”: at [112].

753. The GIO defendants noted that the plaintiff currently receives a carer’s pension for assistance given to Ms Southorn (T 782.18-22), who is purported to have provided him assistance following MVA 3.

Consideration – Griffiths Damages

754 . Having considered all of the evidence, I am not satisfied on the balance of probabilities that a proper evidential basis has been established for damages pursuant to s 100 of the Wrongs Act. I do not accept that the amount of housework and home care done by Ms Southorn increased as a consequence of the alleged wrongs. Damages pursuant to the principles enunciated in Griffiths should not be awarded in this case.

755. As I have stated at [74], reliance on the plaintiff’s evidence is dependent on independent corroboration. In my view, taking into account all the evidence presented in the plaintiff’s case on this issue, it does not meet the balance of probabilities standard. There is no independent corroboration. Ms Southorn accepted that she carries out tasks for the plaintiff on the assumption that the plaintiff is unable to do the

5 It should be noted that, when it was put to Ms Southorn that they were living separately during this period, she gave evidence that she didn’t think it was up until May 2015, and it may have been earlier in 2015 that she moved back into the shared house in Griffith. tasks himself I am not persuaded that that assumption is reliable. The assumption that the plaintiff’s assertions are reliable does not constitute corroboration in this case.

Ruling on the Evidence of Dr Michael Delaney

756. On 5 November 2019, the plaintiff called Dr Michael Delaney to give evidence. Mr Pappas for the NRMA defendants objected to the tender of the entirety of Dr Delaney’s evidence. This objection, and the related submissions, were adopted by the Bunnings and GIO defendants; however, they did not seek to be heard further on the matter. The tender of the reports was not objected to by the Eastlake defendant.

757. Two broad issues arose in relation to the evidence of Dr Delaney:

(a) Dr Delaney had prepared a report dated 16 August 2019; however, the report had not been provided to parties, as Dr Delaney had not received payment for its preparation. This meant that issues arose in relation to the service of that report.

(b) In one of his reports, Dr Delaney adopted the New South Wales Expert Witness Code of Conduct rather than the ACT Expert Witness Code of Conduct, and the Court Procedure Rules 2006 (ACT) (CPRs) require that he adopt the ACT version. Further, the CPRs require that, when an expert is retained, they are provided the ACT code of conduct, and it appeared that that had not taken place.

758. Dr Delaney was not called on that day, so parties could enter into discussions to attempt to resolve the issues. On 6 November 2019, the report dated 16 August 2019 was provided to parties, in addition to a signed certificate from Dr Delaney stating that he had read and understood the ACT Expert Witness Code of Conduct.

759. It was accepted by Mr Pappas for the NRMA defendants that there are “virtually no differences” between the New South Wales and ACT Expert Witness codes. Mr Pappas maintained his objection, however, stating (T 1432.21-1433.12):

The objection is that having served the report without the appropriate acknowledgement, it was not good service. We know of course that there are now other reports and we’re getting the latest iteration at the bar table now, and that is just completely unsatisfactory. But leaving that aside for one moment, your Honour will find that rule 124(1) is in mandatory terms. It requires the service of a copy of each expert’s report and every further report in 2A(b). And that must – in relation to further reports – [be] not later than three days after the party obtains the report. So, firstly, there is a failure to comply with the rule; leaving aside anything to do with acknowledgement of the appropriate Code. It certainly wasn’t done in a timely manner as required under the rules. There is no explanation as to why it wasn’t done. If there is a determination to make application to dispense with the rules under rule 6 of the Court Procedure Rules, because that application is made during the proceedings, rule 6 requires that it must be made by way of application in proceedings with supporting material explaining to your Honour why it is that the mandatory requirements or other rules have simply been ignored. But the relevant part of rule 124(1) upon which I specifically rely is this: 'An expert report must not be tendered and is not admissible in the proceedings unless it has been served in accordance with this rule'. And 'service' is defined to include service of a report which relevantly adopts the ACT Code of Conduct. And so there is no proper service if there has been on adoption of the Code of Conduct and where there has been no service, not only is the report not admissible, oral evidence is not admissible. Now, that is a very tight scheme. There are of course - there is a capacity for the court to dispense with the application of rules, but the court could only do that, in my respectful submission, in the clearest of circumstances where there is a proper explanation for the failure to comply. We're into day 19 of this hearing. None of this failure to serve has been brought about by anything done by any of the defendants, but it still comes as a stream trickling down the hill from the other end of the bar table document by document. And in my respectful submission, unless my friend makes application under rule 6 and explains the plaintiff's position properly, your Honour would not relax or dispense with the rules and it's too late for Dr Delaney now to say, 'Well, I did prepare it in retrospect in accordance with the Code'.

760. Mr Menzies QC for the plaintiff, in response, submitted that “the plaintiff acted as quickly as was possible in the circumstances” and that the report could hardly have been served on the defendants when the plaintiff’s legal team themselves had not received it (T 1433.46-1434.14). On that date, I reserved judgment in relation to the objection.

761. The matter was again raised in court on 6 December 2019. On this day, the plaintiff tendered a further affidavit of Peter Hohnen, solicitor, which became Exhibit 56 in the proceedings. The affidavit was in support of an application under r 6 to dispense with r 1203 in relation to the reports of Dr Delaney.

762. The NRMA defendants and GIO defendants provided additional submissions outlining the arguments in relation to the objection to the reports of Dr Delaney. The NRMA defendants’ submissions relevantly noted r 1241, which states that, in circumstances where expert reports have not been served in accordance with r 1241, the court may only give leave for the reports to be tendered where there are “exceptional circumstances”.

763. In response, Mr Menzies QC for the plaintiff referred to the case of Aitkenhead v Kaufline [2014] ACTSC 82, where Master Mossop (as he then was) found in favour of a similar application in circumstances where the solicitors involved failed to provide a copy of the expert witness code. Mr Menzies QC further submitted that the Court has the power to dispense with the rules and this was a circumstance in which that was an appropriate approach to take (T 1582.21-34).

764. In my view, there were exceptional circumstances. I was therefore satisfied, in all the circumstances, that it was appropriate to dispense with the rules in respect of these reports. I granted leave for Dr Delaney’s reports to be tendered.

An Additional Matter

765. On 17 February 2020, it was indicated that the plaintiff would supply two documents – a note on exemplary and aggravated damages in relation to the Eastlake Incident and evidence relating to out-of-pocket expenses in relation to MVA 3 (T 1719). The notes on exemplary and aggravated damages were provided and are dealt with above at [504]-[578].

766. On 21 February 2020, the plaintiff supplied the following additional documents via email and Dropbox, beyond what was agreed upon on 17 February 2020:

(a) an ‘Itemised Schedule of Past Medical and Pharmaceutical expenses’;

(b) receipts, which form the basis of the ‘Schedule of Past Medical and Pharmaceutical Expenses’; (c) completed ‘Medicare Claims History Statements’ for the matters, circa 2019 which formed the basis of the plaintiff’s “HIC claim” in the schedule of damages filed on 31 January 2020;

(d) further submissions in the matter of Ryan v Bhagria & Ors (SC 510 of 2018); and

(e) submissions as to further medical treatment.

767. The plaintiff’s further submissions in relation to MVA 3 (Item (d) above) related to the status of the plaintiff’s driver’s licence. It was submitted that: “It does not follow from the evidence that the Court would on the probabilities find either that he was unlicensed at any relevant time, or at all”.

768. The plaintiff’s submissions as to future medical treatment summarised the medical evidence and calculations behind the quantification of claims for future medical expenses. It noted that, based on these submissions, the quantification of the claim differed from the previously provided Schedule of Damages. The GIO defendants responded to these submissions in further submissions in reply provided on 26 February 2020.

769. On 24 February 2020, the Court received email correspondence from each of the defendants objecting to the entirety of the documents uploaded via Dropbox (Items (b) and (c)), as they had not been previously tendered in evidence.

770. In relation to the ‘Submissions as to Further Medical Treatment’, the GIO defendants noted that the document refers to a number of reports that were not tendered in evidence. To the extent that the plaintiff relies on these reports, the GIO defendants submitted that the submissions should be disregarded. This submission was echoed by the Eastlake and NRMA defendants.

771. The Bunnings defendant additionally objected to the provision of a number of items contained within the Schedule of Past Medical and Pharmaceutical Expenses.

772. On 26 February 2020, the GIO defendants provided further written submissions in reply, in which it was submitted that, based on the discussion in court on 17 February 2020, “the plaintiff’s submissions were to be limited to directing the court’s attention to evidence of specific treatment needs attributable to the 2018 motor vehicle accident … It was not an invitation to address the plaintiff’s claims for past and future treatment needs more broadly, nor to seek to tender fresh evidence”.

773. The GIO defendants submitted that the Itemised Schedule of past Medical and Pharmaceutical expenses is “of no assistance and should be disregarded” on the basis that (1) it relies on documentation that has not been admitted into evidence; and (2) the document fails to identify the claim or claims against which each expense is claimed.

774. In relation to the receipts (Item (b) above), the GIO defendants submitted that “the court must disregard this material as none of it has been admitted into evidence and there is a guillotine order in place preventing the plaintiff from tendering any further evidence without the leave of the court”. The same submission was made in respect of the ‘Medicare Claims History Statements’.

775. In respect of the further submissions related to MVA 3, the GIO defendants submitted that the plaintiff was given leave to provide further submissions with respect to a very discreet issue and the submissions provided “in no way touch upon that issue”.

Orders

779. In relation to the Bunnings Incident (SC 268 of 2017), I make the following orders:

(a) Judgment is entered for the defendant.

(b) Plaintiff to pay the defendant’s costs.

780. In relation to MVA 1 (SC 312 of 2017), I make the following orders:

(a) Judgment is entered for the plaintiff in the amount of $11,190.

(b) Defendant to pay the plaintiff’s costs.

781. In relation to the Eastlake Incident (SC 267 of 2017), I make the following orders:

(a) Judgment is entered for the plaintiff in the amount of $57,500.

(b) Defendant to pay the plaintiff’s costs.

782. In relation to MVA 2 (SC 312 of 2017), I make the following orders:

(a) Judgment is entered for the defendant.

(b) Plaintiff to pay the defendant’s costs.

783. In relation to MVA 3 (SC 510 of 2018), I make the following orders:

(a) Judgment is entered for the defendant.

(b) Plaintiff to pay the defendant’s costs.

784. Liberty to all parties to apply in respect of any alternate costs order within 21 days.

I certify that the preceding seven hundred and eighty-four [784] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas- Karlsson

Associate: L Skinner

Date: 23 December 2020