Wells v Mexted

BACKGROUND

1. The trial commenced before me on 19 November 2021 and continued over a number of days. The plaintiff, her ex-husband David Wells, and her daughter, Madeline Wells, gave evidence before me via AVL. The plaintiff tendered the following:

• Statement of Kevin Mexted dated 10 February 2013 - Exhibit A;
• Arial photograph of the location where the incident is alleged to have occurred - Exhibit B;
• Report of A/Professor Nielsen dated 1 July 2021 - Exhibit C;
• Report of A/Professor Nielsen dated 21 October 2019 - Exhibit D;
• Report of Dr M Andrzejewski dated 1 October 2019 - Exhibit E;
• Report of Dr J Mathew dated 30 September 2019 - Exhibit F;
• Report of Dr T Fermanis dated 1 April 2019 - Exhibit G;
• Clinical Notes of Gosford Hospital - Exhibit H;
• Clinical notes of Princess Alexandra Hospital - Exhibit J; and
• Plaintiff's Tax Returns from 2008-2018 and 2019 Group Certificate - Exhibit K.

1. The defendant gave evidence before me, as did his wife Bridgette Mexted and his neighbour Denise O'Connor. The defendant tendered the following:

• Statement of Janet Louise Wells dated 21 March 2013 - Exhibit 1;
• Statement of David Wells dated 21 March 2013 - Exhibit 2;
• Clinical Notes of Kanwal Wadalba Family Practice - Exhibit 3; and
• Report of Fabienne Green, Psychologist dated 20 March 2019 - Exhibit 4.

1. It was agreed by the parties that the case should run to conclusion and the limitation point to be determined after all the evidence had been taken. Both counsel provided detailed and helpful written submissions, and spoke to them before me. I am grateful for their assistance.

SUMMARY OF THE EVIDENCE FROM WITNESSES CALLED AT TRIAL

Janet Wells (Plaintiff)

1. The plaintiff was born in Sydney on 18 March 1972, was married to David Wells. As at the date of the incident, the plaintiff and Mr Wells had separated, but were living in the same home. The couple have 4 daughters.
2. Ms Wells attended the University of Western Sydney and obtained a Registered Nurse qualification. She has a Certificate in Critical Care and a Diploma of Intensive care.
3. She was sexually abused from the age of about eight or nine for a period of three years by a neighbour's grandfather. She told her mother when she was about 13 or 14 and received weekly counselling and had strong support from her mother. The abuser was never prosecuted (T13.25). The plaintiff has also been diagnosed with ADHD (T13.50).
4. The plaintiff suffered an injury to her back at L5-S1 in December 1994 (T16.2). This injury led the plaintiff to fusion surgery a few years later (T16.14). Evidently she was also diagnosed with a fracture to the lumbar vertebrae number 1 as a result of falling off a ladder at home (T42.41-50). The plaintiff injured her right shoulder in September 2015 (T42.34-40).
5. The plaintiff received workers compensation benefits with regard to her back injury, after which she and her husband bought a childcare centre which they owned for seven years (T16.25-30).
6. The plaintiff and her family moved to 13 Holloway Drive, Jilliby in 2005 (T17.11) and almost immediately the plaintiff commenced employment as a nurse at Wyong Hospital (T16.44). The plaintiff was an animal lover, and rescued and cared for many pets. She also had a support dog named 'Sheldon'.
7. The plaintiff obtained further nursing qualifications in intensive care and worked in Gosford and Wyong Hospitals for 12 months (T17.28-42), working predominantly in critical care in the casual pool, but more often she was working full-time, however, that was subject to change (T19.5).
8. The plaintiff describes her back before the incident, the subject of these proceedings, as 'good' despite being on high doses of morphine (T19.12). She was still able to work as a nurse during this time, but was under the care of a pain specialist (T19.19). The plaintiff was also diagnosed with fibromyalgia (T19.48), which she mostly felt pain in her legs, but also felt pain in her back, neck and shoulders (T20.9). In addition to morphine, the plaintiff was also on medication for her nerve pain, Gabapentin and antidepressants before the incident (T20.2).
9. On 23 September 2012, a woman approached the plaintiff's back door to inform her that the plaintiff's dog was on her neighbour's property, the defendant's property, chasing the chickens (T20.42) and killing the chickens (T24.9). The plaintiff was asked to go and get her dog (T20.42; 24.9).
10. The person who informed the plaintiff was Denise O'Connor, another neighbour. The plaintiff incorrectly assumed it was the defendant's mother-in-law (T20.40).
11. The plaintiff remembers running along the veranda of her house (T21.9) and noticing white feathers everywhere on her property (T21.18).
12. The plaintiff assumed it was Billy, a Bichon Frise, who at the time was a puppy weighing about 3kg, who had been chasing the chickens. The plaintiff went outside and called out to Billy and saw him run up from the dam that was on her neighbour, the defendant's, property. Billy had clearly been in the dam as he was drenched (T21-22).
13. There was a wire fence separating the plaintiff and the defendant's properties (T22.20).
14. The plaintiff observed Billy going into the chicken pen (T24.33), and she also saw Bridgette Mexted, the defendant's wife, walking up from the dam (T23.45) to the chicken pen (T24.49).
15. Bridgette also went to the chicken pen (T24.49). The plaintiff alleges that she said to Bridgette 'At least they're all alive' (T25.10-11) and apologised to her (T22.47 and T25.11). Bridgette called out to Kevin, the defendant, to deal with the plaintiff as Bridgette did not want to do so (T25.17).
16. The defendant approached as the plaintiff went to walk out of the chicken pen (T25.50) and the plaintiff alleges that he was screaming and pointing his finger at her whilst she was apologising (T26.4).
17. When the plaintiff had left the chicken pen and was walking around the back towards the property fence (T26.35), the plaintiff alleges that the defendant said to her, 'I'm going to kill your 'effing' dogs' (T27.7; 27.21; T80.25).
18. After he said this, the plaintiff said that she turned around and the two bumped into each other (T27.22). The plaintiff said, 'Don't you dare touch any of my animals' (T27.23; T80.32), and at this time she had Billy under her arm (T27.25) and walked in a straight line to the boundary fence (T27.26; 83.18), when she felt a bump.
19. The plaintiff believes the bump occurred because the defendant was closer behind her than she realised (T80.26). She made contact with the defendant with her right shoulder (T81.39).
20. The plaintiff gave evidence that the defendant did not push her after this collision, that it was an accidental collision (T83.13). However, in her police statement the plaintiff stated that he did push her (Exhibit 1, pp24-30 of the Court Book). In giving her evidence, she did not accept these positions were inconsistent (T87.27). The plaintiff also did not accept the account she gave to Senior Constable Kerry Wells was inconsistent with her evidence (T96.13). She believed it was paraphrased (T97.8).
21. The plaintiff denied the defendant was a few steps away when he made the threat and that the collision occurred because she charged at the defendant (T114.43-115.20).
22. The plaintiff said that she could see that her daughter, Maddie, and her husband, David, were at the boundary fence (T27.27) and as she was walking towards the boundary, she felt a sudden push in her upper back (T28.22) and fell to the ground, with Billy still in her arms (T28.23). She indicated that she had only travelled metres, directly towards her husband when she felt this push (T116.22; 34).
23. The plaintiff's evidence was that she landed on her face and shoulder (T28.34) and hurt her hand and wrist (T28.35). She said that she tried to roll over but could not put any weight on her wrist to push herself up (T28.40), but ultimately she managed to sit up (T28.44).
24. Her evidence then was that the defendant kicked her in the head (T29.1), and she tried to kick and hit the defendant while she was on the ground (T29.5). The plaintiff's husband and daughter arrived next to her and helped her up (T29.9), and her husband stood between her and the defendant while she was screaming and swinging at the defendant (T29.14). The plaintiff also tried to punch the defendant when she was on her feet (T117.30; 39).
25. The plaintiff then left the defendant's property and drove to Wyong Police Station (T29.20). She was hysterical (T29.36) and informed them she had been assaulted (T29.39).
26. At the police station the plaintiff was then asked if she was Bridgette (T29.42), and was then informed by the police officer that Bridgette had called the police to complain about a dog (T30.3). The plaintiff's injuries were photographed (T30.20) and the police officer, Senior Constable Kerry Wells, took notes (T30.27).
27. The plaintiff complained of a headache and was told to go to the hospital (T30.22). Constable Wells then phoned Bridgette and informed her of the plaintiff's allegations against her husband (T32.19). Bridgette denies those allegations.
28. The plaintiff was told she should attend hospital first and could make a statement at another time (T32.30). She then left the police station and went to Gosford Hospital Emergency (T33.8), where she was diagnosed with a broken wrist, grazes to her knees and right shoulder, and bruises on the left-side of her face (T33.14-25). She was not admitted to the hospital (T33.28).
29. The plaintiff returned to go to the police station (T34.9) but they refused to take her statement (T34.16). She was subsequently charged with common assault (T34.24). Bridgette Mexted made an application for an AVO against the plaintiff (T61.19), and the plaintiff applied for an AVO against the defendant (T61.42).
30. The plaintiff sought legal advice in relation to the criminal proceedings (T35.24) from criminal defence lawyers. Her mother paid for a solicitor and a barrister as the plaintiff was scared about losing her nursing registration if she was convicted of a criminal offence (T35.31). It is not contentious that the proceedings were ultimately dismissed by the magistrate.
31. Whilst the plaintiff was at Gosford Hospital Emergency, after the incident, multiple clinicians asked her how she sustained her injuries (T64.17). She considered herself to be a victim of a 'violent physical assault' (T66.25).
32. The plaintiff returned to the hospital on 27 September 2012 and reported her symptoms, including psychological symptoms such as anxiety and PTSD as a result of the incident (T67.4). She told the nursing staff that she was experiencing bad headaches (T38.9). She had a cast on her wrist for three months (T38.18). She was scared and anxious after the incident.
33. In giving her evidence the plaintiff described her condition after the incident as follows (T38.17-35): 'Q For how long did you have the cast on your wrist? A I think it was three months. Q And how did the cast get removed? A I took it off. Q Why did you take it off? A I was too scared to go out of my - my home. Q Following this particular incident in those following weeks, did you notice a change in your own behaviour? A Yes. Q What was that change? A I just became a totally different person. I was so scared and I didn't want to socialise with anybody. I - I couldn't go outside where - which is where my life is with my animals, because my heart - I just - my heart would race so - and beat so loud in my ears, I just started having anxiety attacks and I was just very frightened and - just anxious.'
34. The plaintiff knew straightaway that her psychiatric injuries were a result of the incident that occurred with the defendant (T62.46).
35. The plaintiff was off work for about six months (T38.43) and when she returned to work she did not work as many shifts and hours as she had worked before the incident (T39.4). She was still experiencing pain in her wrist (T39.16) and in her shoulder (T40.8). The plaintiff gave evidence that she could not work for at least three months after the incident because of the brace on her wrist (T68.23). She also took time off work in 2013 because of the injuries relating to the incident (T69.1).
36. The plaintiff admits to having had numerous injuries over the years (T42.9). She had a work injury to her left shoulder in 2014 (T42.31). In 2015, she hurt her right shoulder and hurt her knee (T42.35). She also fell off a roof at home and fractured her back at L1 (T42.43). She could not work immediately after that injury (T42.50).
37. In April 2016, the plaintiff was sexually assaulted by two men in Yass (T43.13). She was understandably psychologically affected by this incident (T43.18).
38. In March 2017, the plaintiff had a slip and fall at a Woolworths (T105.17). She broke her ankle in that fall (T108.1). She also hurt her left shoulder and left-side of her pelvis (108.28). She does not recall telling any medical practitioner she had not had any pain previously (T108.32). She also tripped over a trench in December 2017 (T108.48) and hurt her hip, but gave evidence that it was not a long-term injury (T109.41).
39. In July 2017, the plaintiff moved to Queensland (T43.41) with her three youngest daughters (T44.8). Her husband did not move to Queensland, as they had been separated but living under the same roof (T44.11).
40. The plaintiff contacted her current solicitors, Turner Freeman, in 2018 (T44.50). She first contacted them in relation to what she believed was a potential claim for malicious prosecution and was advised by Mr Gaius Whiffin ('Mr Whiffin') of Turner Freeman Solicitors (T45.2).
41. Prior to contacting her solicitor, the plaintiff said that she had not turned her mind at all as to whether she had a claim against the defendant (T45.13). She never thought about suing the defendant (T50.27), and she did not believe she had a claim against the defendant because he was never charged by the police - moreover, she was in fact the one with criminal charges brought against her, even though the charges were ultimately dismissed (T45.16-20).
42. The plaintiff's evidence was that the lawyers she retained for the criminal proceedings only provided advice to her on the criminal matter. However, the plaintiff did ask if she could recover her $20,000.00 in legal fees for that matter (T46.27). The money had been lent to the plaintiff by her mother (T69.38) and she wished to return it to her.
43. There is no evidence from the plaintiff's criminal lawyers before this Court.
44. Upon being given certain advice, the plaintiff asked her new solicitor, Mr Whiffin, to proceed with the civil proceedings against the defendant for damages based on the injuries she had sustained (T47.36). Mr Whiffin immediately did so and there can be no criticism of his conduct as he acted so promptly.
45. The plaintiff obtained employment in Queensland as an ICU nurse about 18 months after she moved, preferring night shifts as they were better for her nerves (T48.10).
46. In May 2020, the plaintiff stopped working when she re-broke her wrist accidentally at home (T48.20). Before this accident, she had pain in her wrist but she said that it did not prevent her from doing anything (T48.41). However, prior to re-breaking her wrist, the plaintiff was mentally struggling. She did not like going out or making friends (T50.3). Further, her right shoulder was injured two years ago in a workplace incident (T50.48). Before that accident, the shoulder was still sore but became worse (T51.8).
47. The plaintiff is currently receiving treatment for her psychological condition (T51.15). She has a caseworker and utilises art therapy and cannabis oil for her pain (T51.18-28). She relies heavily on her dogs for support. The plaintiff stated that she had difficulty with domestic tasks through 2013 and 2014 as a result of the incident (T69.9-25).
48. The plaintiff has attended two consultations with Associate Professor Nielsen (T55.23) for the purposes of this litigation (T57.16). One consultation was before she re-broke her wrist and the other, after. His reports are Exhibits C and D. She also saw Dr Joseph Mathew, Psychiatrist, on 30 September 2019 at the request of her solicitor - his report is Exhibit F.
49. The plaintiff was taken to her tax returns. It is evident from the documents that:

• In 2012, she declared $56,515.00 (T103.40; p 873 Court Book);
• In 2013, she declared $54,303.00 (T104.48; p 870 Court Book);
• Income was received in the sum of $40,342.00 from Central Coast Area Health (T120.32);
• The plaintiff received $12,742.00 from a source unknown (T121.6); and
• In 2014, the plaintiff declared a total income of $51,585.00 (T105.8; p 864 Court Book).

1. In cross-examination, the plaintiff denied deliberately exaggerating the financial impact she has had as result of the incident (T105.13).

David Wells (plaintiff's ex-husband)

1. The plaintiff and Mr Wells had been married but separated Christmas night 2015 (T127.40). The plaintiff was the primary income earner (T134.31).
2. Mr Wells' evidence that on 23 September 2012, around 2pm (T123.46), a lady called through an open window and informed the Wells family their dog was in the neighbours' chicken pen (T124.1). He said he observed the plaintiff on the neighbours' property, with one of their dogs under her arm (T124.20). The plaintiff was in the chicken coop area (T124.33). He observed that Bridgette Mexted was also there, shouting, but he could not hear what was being said (T124.33-39). He saw the defendant coming up from the house towards the chicken coop (T124.45).
3. Mr Wells observed Bridgette walking away shouting 'I can't deal with this' (T125.33), and noticed the defendant approached the plaintiff while she, the plaintiff, continued apologising (T125.34). He next noticed the defendant blocking the plaintiff from exiting the chicken coop area (T125.38), and observed the plaintiff trying to push past the defendant, and then turned to walk away (T125.42), towards where he, David Wells, was standing (T126.1).
4. The witness saw the defendant walk up behind the plaintiff and push her in the back with both hands, knocking the plaintiff to the ground (T126.9), whilst the plaintiff was still holding the dog (T126.14). He said that he saw the plaintiff airborne (T137.46), and then landed on her knees, hands and face (T126.17).
5. Mr Wells then observed the defendant kicking and kneeing the plaintiff while she was on the ground (T126.21), whilst the plaintiff put her arm up to protect herself and was crying (T126.29). Mr Wells stated that he then jumped the fence to try and get between them (T126.25).
6. Mr Wells' evidence was that he was facing the defendant when he was in between them (T128.34), and he thought the defendant was still trying to kick the plaintiff while David was trying to separate them (T128.47; 50). He denies hearing the defendant threaten the dogs, or see the defendant trying to stop the plaintiff from attacking him, or that it was the plaintiff who charged into the defendant (T138.9-50).
7. Next, Mr Wells noticed the plaintiff was sitting on the ground on her bottom (T126.34), and he pushed the defendant away and helped the plaintiff get up (T126.41). Their daughter, Madeline, was also over the fence and together they walked the plaintiff back to their side of the fence (T126.45). He observed the plaintiff and their daughters get into the car and drive off (T126.50).
8. Mr Wells stated that he went over to the fence to talk to the defendant and Bridgette (T127.1). Bridgette told him that the plaintiff fell because she tripped (T127.6). His evidence was that during the discussion, he was guarded, not angry (T136.5), and he told the defendant that the plaintiff had previously witnessed a murder (T136.9), however, he cannot recall why he told the defendant about this (T136.12). He denied it was to explain the plaintiff's behaviour (T139.12).
9. After the incident, Mr Wells noticed the plaintiff to be distressed, spending a lot of time in bed and believes she was depressed and unmotivated (T127.11-15). This went on for a few months (T127.18). Mr Wells gave evidence that he believed the plaintiff was physically and mentally normal before the incident (T123.23-30).
10. After the incident he noticed that the plaintiff had restricted movement in the wrist (T127.28), and bruising on her back, scraped knees, and believed she had sustained a head fracture (T127.33). He noticed that the plaintiff was guarded and withdrawn, wouldn't go outside and would return to the house if she saw the defendant or Bridgette (T127.44-128.3).
11. Mr Wells made a statement in respect of the AVO sought by Bridgette Mexted against the plaintiff (T130.3; p46 Court Book; Exhibit 2). He stated that he was not concerned the plaintiff might be convicted of assault against the defendant (T134.43; 47), but did indicate that he was anxious about living next to the Mexteds following the incident (T136.38; 139.17). They tried to move away (T139.50).

Madeleine Wells (plaintiff's daughter)

1. Miss Wells gave evidence that on 23 September 2012, she remembered standing at their fence, looking towards the neighbour's property and seeing Billy climb over the dam hill (T141.32-34). She said that she saw her mum holding Billy and trying to leave the neighbour's property (T141.45). She noted that the defendant was blocking the plaintiff from leaving his property (T141.47). She was standing at the boundary fence between the properties, between where the two houses were, looking towards the neighbour's dam and chicken pen (T142.5), and was about 50m from the defendant and the plaintiff (T145.46).
2. The plaintiff was walking towards the fence (T142.11). The defendant seemed angry and ran up and pushed the plaintiff in her back (T142.24). She vividly remembers seeing the defendant step forward and push her mum in the back with two hands, and saw her fly forward and hit the ground (T146.15-18). Her evidence was that it was not a blur (T146.24), and that she saw the plaintiff fall forward, still holding Billy (T142.25).
3. Miss Wells remembers walking up to the fence to try and get over it and help her mum, was next to her mum while she was sitting on the ground, and then helping her mum up off the ground (T142.32-42). The plaintiff was yelling as they were walking back towards their property (T143.8), and the defendant yelled that he would kill their 'effing' dogs (T143.11). However, she did not hear the defendant threaten the dogs until after she was over the boundary fence (T144.32).
4. Miss Wells then got into the car with her sisters and her mum. They dropped the two younger sisters, Dorothy and Ruby, at one of their friend's house and then went to Wyong Police Station (T143.16-20). The plaintiff was quite hysterical (T143.23) and Madeline was present when the Constable took photos of the plaintiff's injuries (T143.25).
5. Miss Wells was told she was unable to make a statement because she was under 18 (T143.27). The Constable also said it was difficult to believe the plaintiff because there were so many fake sexual assault reports from young girls (T143.30). She observed the police officer ring Bridgette Mexted on speakerphone and told the plaintiff and her daughters to be quiet while the phone call happened (T143.33-37). After that, the plaintiff was told to go to hospital because she might have a head injury (T143.38).
6. Miss Wells noticed the plaintiff was shaky, a bit jumpy and stayed in her room a lot following the incident (T143.43). The plaintiff told them not to play near the neighbour's property or use the clothesline near the neighbour's property (T143.44-48). This change in behaviour lasted more than the first few weeks (T144.2). The witness moved out of home the following year but noticed a change in her mum's outdoor activity for years to follow (T144.6-8).

Kevin Mexted (defendant)

1. The defendant had four neighbours, the Wells were on their left, and Denise O'Connor was on the right side. There was a further property in front of and behind them (T148.45). The defendant is married to Bridgette Mexted.
2. The defendant gave evidence that at about 3:30pm on 23 September 2012, he was cleaning his pool (T149.4) when Bridgette called out to him, saying, 'Kevin, come and help. I can't deal with this' (T149.10). Upon arriving at the chicken coop to attend to his wife, Bridgette said to him, 'You deal with this. I can't deal with it anymore' (T156.24). She said this while at the gate of the chicken coop (T157.1).
3. The defendant then walked with his dog towards the chicken coop (T149.14), and saw a dead rooster on the water line of the dam (T149.25; 28). He observed Bridgette and the plaintiff coming out of the chicken pen, with Mrs Wells' dog under her arm (T149.37), and he told the plaintiff to get off their property (T149.41). At this point he was inside the chicken run (T157.10), and the plaintiff was swearing and carrying on (T150.1). He was saying, 'get off the 'effing' property' (T150.7).
4. He then observed the plaintiff walk out of the chicken pen with Bridgette following, and he was behind Bridgette (T150.13). Rude comments were exchanged between the defendant and the plaintiff (T150.18), and the defendant recalls saying, 'I'll have your 'effing' dog put down' (T150.21; 165.33; 47).
5. The defendant recalls that he was about five metres back from the plaintiff (T150.24), and after he threatened the dog, the plaintiff turned around and charged at him (T150.27), making contact with his chest and jaw (T150.30). The defendant was knocked off balance and he pushed the plaintiff back and she fell on to her backside (T150.33).
6. The defendant says he was defending himself (T151.23), and the plaintiff continued to lash out with her legs and arm, while he raised his feet to avoid contact from her (T151.32). The defendant moved away. The plaintiff remained on the ground (T151.33; 36). He recalled that the plaintiff got up and started throwing punches at him (T151.42), and he was hit on the left side of his lip (T152.10; 15; T1170.15; 20).
7. Apparently, Mr Wells then arrived and grabbed the plaintiff, with his back towards the defendant (T152.33). Mr Wells walked the plaintiff back to the boundary fence (T152.42). He heard the plaintiff say, 'I'll 'effing' get you' (T152.49).
8. The defendant then went and spoke to Mr Wells at the boundary fence after which he observed the plaintiff leave in her car (T153.6; 20). He recalls that Mr Wells said to him 'she hasn't been right since she witnessed the murder' and apologised (T153.13). The defendant denies the plaintiff ever apologised to him (T160.38; 165.11).
9. The defendant said he and Bridgette followed the plaintiff (T161.3) to make sure she left their property (T161.31). Bridgette was about a metre in front of the defendant (T162.26), and they stopped around the back of the chicken coop (T162.32).
10. In his statement to police made 10 February 2013 (Exhibit A), the defendant stated he had found a dead rooster by the dam and still had chickens missing (T172.5). He denies his statement suggests he found the rooster after the altercation with the plaintiff (T172.10; 17; 27). Nothing in his statement mentions Bridgette walking with him (T173.23). His statement says he moved towards the plaintiff after she punched him in the lip (T175.32; 44). This was not the first instance the plaintiff's animals had gone onto his property (T173.41), and he admitted to being angry (T174.2).

Bridgette Mexted (defendant's wife at the time)

1. Bridgette gave evidence that at about 3:30pm on 23 September 2012, she was in the lounge room reading the newspaper when she saw one of her neighbours, Denise O'Connor, drive up their shared driveway and enter her neighbour's property before coming over and knocking on her front door (T178.45-179.16). Denise informed Bridgette that the Wells' dog was in her back paddock attacking their chickens (T179.28).
2. Bridgette said that she saw the plaintiff in the chicken coop, attempting to get her dog (T179.35-38), and she called out to her husband and saw him walk towards the paddock (T179.44-50). She noticed that the dog had a chicken in its mouth (T180.2), and she told the plaintiff to get off her property (T180.7).
3. When the witness first saw the plaintiff, the plaintiff hadn't caught the dog yet (T186.31), but she ran to the chicken run (T186.49), and by the time she got to the gate, the plaintiff had caught the dog (T187.3). She observed the dog was under the plaintiff's arm, after it released a chicken from its mouth (T187.9). At this point in time the witness was in the chicken coop, about six steps from the plaintiff. The plaintiff tried to apologise while the witness told her to leave her property (T180.13-22; 187.41, 45).
4. She then recalled the defendant entering the chicken coop and him standing behind her (T181.2). She noted that the plaintiff did not leave and continued to apologise, saying that she hadn't meant for the dog to come into the chicken coop (T181.8). She further recalled the plaintiff walking out of the small gate to the chicken coop, and she and the defendant followed her (T181.14-27). As they were walking behind the plaintiff, Bridgette noticed a dead rooster in the dam (T190.48-191.10).
5. Bridgette recalls that they said to the plaintiff that they would call the rangers about her dog, upon which the plaintiff became abusive (T181.30). The plaintiff didn't really move from where she was standing so the defendant and the witness attempted to walk around the back of the chicken coop where David was still standing on the other side of the fence (T181.34).
6. Bridgette then observed the plaintiff coming out of the gate to the chicken run, and walking past the chicken coop, and then turning right (T193.47), upon which she stopped just behind the chicken coop to apologise (T194.14). This occurred around the vicinity of the corner of the chicken coop (T198.3). Bridgette and the defendant then walked towards the plaintiff as she had refused to leave the property (T198.43).
7. Bridgette recalls the defendant saying, 'If the dog comes back, he'll have her put down' (T181.49). The plaintiff was ten steps in front of the witness, and the defendant was four steps behind the witness (T182.9-18). She then recalls the plaintiff charging at the defendant and he pushes her away (T182.21) when they were behind the corner of the chicken coop (T199.10). Bridgette observed the plaintiff to land on her bottom, but close enough to the defendant to kick him (T182.25-28). While on the ground, she was attempting to hit the defendant's legs with her left hand (T182.32). Her evidence was then that the plaintiff got up and David came over the fence (T182.35), the plaintiff punched the defendant, hitting him in the lip (T182.39, 42).
8. Subsequently, David escorted the plaintiff off the property (T183.2), and as they got close to the fence, the oldest two daughters, Madeleine and Emily, were also over the fence (T183.23).
9. Bridgette then called the police (T183.30).
10. After calling the police, she and the defendant met David at the boundary fence. The defendant asked, 'What was that about?' and David responded, 'I'm sorry about that. She hasn't been right since she witnessed the murder at Canton Beach' (T183.33-41).
11. Bridgette did not ask what David was referring to, but rolled her eyes and walked away with the defendant (T183.44).
12. In her statement to police, Bridgette said the plaintiff kept apologising to the defendant (T205.39).

Denise O'Connor (defendant's neighbour)

1. Mrs O'Connor's evidence was that around 3:30pm on 23 September 2012, she was in her backyard preparing to mow the lawn, when the chickens started squawking and she saw a little white dog attacking the chickens (T213.24-32). Some of the chickens had blood on them and there were two near the dam edge (T213.35).
2. She attempted to call the dog, jump over the fence and call out to Bridgette and Kevin, but none of that worked so she got into her car and drove towards the Mexted property (T214.18-23).
3. She knocked on the Wells' door because she didn't believe Bridgette and the defendant were home (T214.33-43). Her evidence was that she said to Janet, 'Your dog is attacking next door's chickens'. She recalled the plaintiff saying, 'It's not my dog, because my dog is enclosed, in an enclosed area.' Mrs O'Connor said, 'Is it a little white dog with curly hair?', and the plaintiff said 'Yes'. The witness then said, 'Well, I think it's your dog and you should do something about it' (T215.12-17).
4. Mrs O'Connor then went to the Mexted's door and told Bridgette. Bridgette called to the defendant, and Mrs O'Connor observed that the defendant started walking towards the back area of the house (T215.35).
5. Mrs O'Connor recalled saying to Bridgette that the next door's neighbour's dog is killing your chickens (T219.2). They went out the front door, and Bridgette yelled out to the defendant (T219.6). Mrs O'Connor followed Bridgette to the chicken coop, and they remained on the side of the fence near her house (T219.21).
6. Mrs O'Connor gave evidence that she recalls Bridgette not wanting to be a part of the argument (T219.32-42), and was adamant that Bridgette never entered the chicken coop (T220.4). Nor did she walk along the back of the chicken coop where the plaintiff walked (T220.8). Bridgette and Mrs O'Connor were standing about half-way between the fence on the Mexted property and the corner of the picture (T222 and MFI 1).
7. The next thing that Mrs O'Connor observed was that the plaintiff was in the chicken area with her dog in her hands, and the defendant was on the left-hand side going towards the small gate (T215.43) and that they were yelling at each other and swearing (T216.3).
8. She recalled that the plaintiff had the dog under her left arm (T220.46) and she left through the gate from the chicken run and turned right (T221.27) exiting the back of the chicken coop, towards the defendant, and they were both yelling at each other (T216.8-12). She estimated that the defendant was closer than 5 metres to the plaintiff.
9. Then Mrs O'Connor saw the plaintiff fall, and believed it was because she was going backwards and had fallen or stumbled on something on the ground (T216.46). The plaintiff fell while holding her dog (T216.38). She saw the plaintiff coming around the right-hand side of the shed, and falling not far from the shed (T224.17). The witness denies that the plaintiff fell on her front, insisting she fell on her side (T225.8). She then observed the plaintiff to get up, continuing to yell and scream at the defendant, before David came over the fence and towards the plaintiff to help her (T217.26) and pacify the situation (T217.42).

DOCUMENTARY EVIDENCE

1. The balance of the evidence was documentary as detailed in [8] and [9] above.

DISCUSSION

1. The viva-voce evidence given via AVL proposes a dilemma for me. I accept that Mr David Wells, Miss Madeline Wells, Mrs Bridgette Mexted and Mrs Denise O'Connor (the sole independent witness) were all witnesses of truth, and tried their best to recall the events of 23 September 2012 as best they could. I find that they are all honest and believable, and I accept their versions of events as best they remember. However, their evidence does not all fit together, particularly when placed upon the matrix of the evidence given by the plaintiff and the defendant.
2. Unfortunately, I do not accept that the evidence given by the plaintiff and the defendant was truthful.
3. The plaintiff's evidence was given in a bizarre fashion. She was dramatic and rambling. She regularly contradicted herself or gave answers non-responsive to the question. She appeared to be on a mission to speak about every issue of her life and vent about perceived misfortune. She had various dogs in and out of her lap during the AVL and embarked upon demonstrations of the events despite not being asked to do so. She often walked off camera and then returned with a dog, and on other occasions she turned off her camera during various parts of the proceedings, for reasons not explained. In short and having listened to her evidence, I am not certain what actually happened on 23 September 2012. Firstly, because she gave evidence in such an exaggerated, dramatic and disordered fashion, and secondly, because I do not believe her as a witness of truth.
4. This causes a problem for the plaintiff as she bears the onus of satisfying me on the balance of probabilities what in fact occurred on the date of the incident. There is little documentary evidence and what there is does not go far enough to corroborate the plaintiff's version of events.
5. The defendant similarly did not come across as an honest witness. He was clearly hostile to the Court process and gave evidence in a very smart and pedantic way. I have difficulty believing that a large part of his evidence was based simply on a taciturn and toxic relationship with his neighbour over past disputes about animals and water drainage. He was a very unimpressive witness, and I do not accept him as a witness of truth.

LIMITATION ACT 1969 (NSW) ('Limitation Act')

1. The plaintiff's claim was filed on 21 September 2018, nearly 6 years after the alleged assault and battery.
2. Section 50C of the Limitation Act provides that a cause of action is not maintainable unless it is brought within three years of the cause of action being discoverable by the plaintiff.
3. The defendant accepts that he bears the onus of establishing that the cause of action was discoverable before the relevant time, namely 23 September 2015.
4. Pursuant to s 50D(1) of the Limitation Act, a cause of action is 'discoverable' by a person on the first date that he or she knows or ought to have known each of the following facts: 1. that the injury has occurred; 2. that the injury was caused by the fault of the defendant; and 3. that the injury was sufficiently serious to justify the bringing of proceedings on the cause of the action.
5. The plaintiff says that she first made contact with her current lawyers in 2018. She contacted the lawyers because she believed she had potentially been maliciously prosecuted. She says that prior to that time she had not turned her mind as to whether she could make a claim against the defendant, as she thought because he, the defendant, had not been charged by the police and she had been charged, she was unable to make a claim against him.
6. The plaintiff retained lawyers to act for her in the criminal proceedings who gave her advice about the criminal proceedings but, according to the plaintiff, did not give any other advice (T46.26). The plaintiff subsequently gave instructions to her present lawyers to commence these proceedings, having not realised she said that she could do so until she was so advised by Mr Whiffin (T39, 44, 45-47).
7. In Baker-Morrison v State of NSW (2009) 74 NSWLR 454 ('Baker-Morrison'), Basten JA (with whom Ipp and MacFarlan JJA agreed) held that the concept of 'fault' in s 50D(1)(b) was to be ascertained by reference to legal concepts. He said at [39]: 'In the context of s 50D, to speak in general terms of moral blameworthiness is inapt; it is consistent neither with the context of s 50D, which deals with fault in relation to a cause of action, nor with the underlying approach in Dedousis and Drayton.'
8. His Honour went on to say at [42]: 'The construction of para (c) which would involve the person obtaining medical and legal advice gains support from the fact that a number of statutory regimes contain floors or caps on the recovery of damages, or both: see, for example, Civil Liability Act s 16. No proper view could be formed about the justification for bringing an action, absent information of that kind.'
9. His Honour further went on to hold that paragraph (c) requires the person to have available to him or her relevant legal and medical information to allow the informed, professional judgment to be made [44]: Otherwise, his Honour thought that with respect to the phrase 'ought to have known', in most circumstances, the step of instructing a solicitor will be sufficient for a prospective plaintiff to satisfy the taking of all reasonable steps: [58].
10. Section 50D was further considered by the Court of Appeal in State of NSW v Gillett [2012] NSWCA 83 ('Gillett'). In that case, as in Baker-Morrison, at [70], Beasley JA (McColl, Campbell, Young and Whealy JJA agreeing) stated: 'In other words, the plaintiff had to know that the defendant's conduct was actionable. This involved the exercise of both legal and medical expertise, given the statutory regimes that placed limitations on the damages recoverable in an action.'
11. The Court unanimously affirmed Basten JA's view in Baker-Morrison that a proper view could not be formed about the justification for bringing an action absent appropriate medical and legal advice in respect of such matters.
12. At [97] in Gillett, her Honour accepted that for the purpose of fault in s 50D(1)(b), a defendant had to establish that the plaintiff knew that the matter was legally actionable. What that involves in a particular case will depend upon the relevant facts and circumstances.
13. With regard to whether a person 'ought to have known', Beasley JA said at [104]: 'For the purposes of s 50D(2), the court had to determine whether a fact within the meaning of s 50D(1) would have been ascertained if the person had taken all reasonable steps to ascertain it before the relevant date. This wold involve an inquiry of the steps actually taken by the plaintiff, if any, and whether those steps satisfied the court's determination of what were reasonable steps to take in the particular circumstances of a particular case.'
14. It is common in both Baker-Morrison and Gillett that it is the defendant who bears the onus of establishing what the plaintiff knew or ought to have known at a particular time.
15. In this case, the evidence is that the plaintiff said that she did not know that she had either a cause of action or that her injury was sufficiently serious to justify the bringing of an action on the cause of action until she was advised by her current solicitors in 2018.

KNOWLEDGE OF OCCURRENCE AND CAUSE OF INJURY

1. The plaintiff's evidence was that, on the day of the incident, she attended hospital so her injuries could be 'documented' (T63.15-17) and was at that time informed by the treating clinicians that her left wrist was fractured (T63.39-40). She also gave evidence that on 27 September 2012, she returned to hospital and reported suffering from knee pain (T66.39), shoulder pain (T66.42), anxiety (T66.46) and PTSD (T66.47).
2. I note the plaintiff started her career in nursing in about January 1994, and remained in that profession, off and until May 2020. In my view she had sufficient medical knowledge and experience to know that her injuries were serious.
3. The plaintiff also gave evidence that, as at 27 September 2012, she knew that she had sustained the above injuries as a result of the alleged battery by the defendant (T67.108).

KNOWLEDGE THAT THE INJURY WAS SUFFICIENTLY SERIOUS TO JUSTIFY BRINGING AN ACTION

1. The plaintiff has accepted that she did not seek relevant legal advice until 20 September 2018, and argues that she did not know her injuries were sufficiently serious until that time. However, the question that I must examine is whether she ought to have known of that fact prior to 23 September 2015.
2. Section 50D(2) of the Limitation Act provides that a person 'ought to know' of a fact at a particular time if the fact would have been ascertained by the person had they taken all reasonable steps before that time to ascertain it.
3. I must therefore determine whether, at any time prior to 23 September 2015, the plaintiff ought to have known that her injuries were of a nature for which the law would hold the defendant accountable in damages, and that the damages that could be recovered were large enough to be worth the time and trouble of suing in order to satisfy s 50D(1)(c) of the Limitation Act: State of NSW v Gillett [2012] NSWCA 83 at [131] (Campbell JA, McColl, Young and Whealy JJA agreeing).
4. This involves an examination of the steps actually taken by the plaintiff, and whether they are sufficient to satisfy me that the plaintiff had taken reasonable steps in the particular circumstances of the case: Gillett [104]; Baker-Morrison [59].
5. Whether an injury is 'sufficiently serious' is an enquiry requiring a legal evaluative judgment. No proper view can be formed about the justification for bringing an action without legal advice: Baker-Morrison [41]-[42]. Hence, the taking of 'reasonable steps' will generally require a plaintiff to seek legal advice about whether a civil action should be commenced.
6. As a matter of common sense, this step would require a prospective plaintiff to not only retain a lawyer, but also provide the lawyer with instructions that are sufficient to cause the advice to fall within the scope of the retainer. This is consistent with the comments of Basten JA (with whom Ipp & MacFarlan JJA agreed) in Baker-Morrison. His Honour noted (at [58]) that whilst in most circumstances the step of instructing a solicitor will be sufficient for a prospective plaintiff to satisfy the element of taking all reasonable steps, there may no doubt be a question as to whether the plaintiff's instructions were adequate or whether other limitations prevented the solicitor from taking proper steps in a timely fashion.

WHAT STEPS DID THE PLAINTIFF TAKE?

1. The plaintiff's evidence was that she was charged by the police 'about a few months' after the incident (T34.24) and that the criminal proceedings came on for hearing 'about 13 months' later (T34.35; T37.8). The plaintiff gave evidence that, at some point during that period, she retained a firm of criminal defence lawyers to defend the criminal charges (T46.14-16).
2. The plaintiff has admitted that she never sought legal advice from those lawyers about the bringing of an action against the defendant (Reply filed 04.07.2019). I accept that it flows from that admission that the criminal defence lawyers were never retained by her to advise on any potential civil claim against the defendant, and that in fact that forms part of the plaintiff's case. It is also consistent with the plaintiff's evidence: she says that the lawyers were 'specifically criminal law lawyers', as her main concern 'was losing my nurses registration' (T46.20) and that they were retained to act in respect of the criminal charges (T35.29-33).

WHAT CONSTITUTED 'REASONABLE STEPS'?

1. The plaintiff submits that the taking of reasonable steps merely required her to retain lawyers in respect of the criminal proceedings. In my view that is inconsistent with the remarks made in Gillett and in Baker-Morrison.
2. It is trite law that a lawyer-client relationship is defined by the scope of the retainer: Heydon v NRMA Ltd (2000) 51 NSWLR 1 at [364] (McPherson AJA). Having not been retained to provide advice on any civil claim, the plaintiff's criminal defence lawyers could not reasonably have been expected to do so.
3. I accept the submission of the defendant that as the plaintiff did not seek advice from her criminal lawyers, her instructions and the scope of the resulting retainer were inadequate and fell short of the taking of reasonable steps. A person in the plaintiff's position could not reasonably expect to receive advice on a prospective civil claim from a criminal law firm that was not asked to provide it.
4. The plaintiff has submitted that she was not required to take further steps because of 'a belief that because she had been charged by the police, she was unable to bring a claim'. The plaintiff's written submissions at [21] read as follows: '[21] In this case, the evidence is that the Plaintiff did not know that she had either a cause of action or that her injury was sufficiently serious to justify the bringing of an action on the cause of action until she was advised by her current solicitors in 2018. She had a belief that because (had - sic) been charged by the police, she was unable to bring a claim and whilst she did not seek specific advice, she had retained lawyers in the criminal proceedings and those lawyers had not raised with her the possibility that she could bring a claim against the defendant. In the circumstances, it was reasonable that she took no other steps to enquire about whether she had a cause of action. It follows that time did not commence to run until 2018.'
5. The defendant contends that that submission should be rejected for the following three reasons: 1. The assessment of what constitutes 'reasonable steps' is an objective one: Gillett [104]. The plaintiff's subjective beliefs are not relevant; 2. The plaintiff held that belief having not sought legal advice. The effect of the submission is that it was reasonable for her to make her own evaluative judgment about whether an action could be brought. That is not so. As stated in Baker-Morrison, no proper view could be formed without legal advice. Seeking that advice was a 'simple step' for the plaintiff to take: Best v Rosamond [2020] NSWCA 90 at [36] (Payne JA, Bell P and Leeming JA agreeing). Had she done so, the plaintiff could have discovered that her belief was unfounded; and 3. The charges were dismissed over a year before the relevant date. The plaintiff's evidence that she was charged 'a few months' after the incident and that the criminal proceedings were dismissed 'about 13 months later' indicates that the criminal proceedings were dismissed in around late 2014 or early 2014. That is broadly consistent with the date on which the AVO proceedings were dismissed, being 7 March 2014 (T225.28-30).
6. The plaintiff gave evidence that, prior to 23 September 2015 she considered her injuries to be serious (T67.33-69.26). I note that the plaintiff was a nurse, and had been so for many years and clearly knew her injuries were serious. Importantly however, to my mind is the fact that the plaintiff had brought previous workers compensation proceedings, and as such must have had some awareness of the process of seeking compensation for injuries sustained.
7. It is also hard to understand that even though she knew she was seriously injured, the plaintiff did not ask her lawyers, retained for the criminal proceedings, about it. The plaintiff is an intelligent woman, having become a senior nurse whose skills and experience were readily accepted at a number of different hospitals over an extensive period of time. It is difficult for me to accept that she had not thought about seeking compensation for her injuries inflicted by her neighbour. She had also been involved in court proceedings during that time, and had easy access to lawyers whom she could have asked if she did have a cause of action. I am of the view that a reasonable person in these circumstances would have made enquiries as to her rights to bring a claim for damages.
8. Furthermore, having found that the plaintiff is not a witness of truth, I do not accept that the cause of action was not discoverable before 23 September 2015.
9. Thus, the plaintiff's claim is statute barred by the Limitation Act, and thus there will be judgment for the defendant.

PRIMARY LIABILITY

1. If I am incorrect, and in circumstances in which the plaintiff bears the onus of establishing primary liability, uncertainty as to what actually happened does not assist the plaintiff. Neither the plaintiff nor the defendant impressed me as witnesses of truth. Consequently, I cannot be certain as to what in fact happened on the date of the incident and I am not satisfied on the balance of probabilities that the injuries were sustained in the manner in which the plaintiff has described. The plaintiff bearing the onus of satisfying me on the balance of probabilities what occurred on the date of the incident, has failed to do so. Thus, the plaintiff's claim must fail, and there would be judgment for the defendant.

ASSESSMENT OF DAMAGES

1. If I am incorrect, I would assess damages having regard to the following matters. The medical evidence is scant at best. There is arguably some support for some injuries sustained in the incident, but little to suggest that these injuries alone, or even overlayed on the previous injuries, are causative of any real pain and suffering or incapacity. The plaintiff has a chequered work history, which has unfortunately been complicated with many other injuries. It is difficult to understand what injuries caused what disabilities.
2. Prof Neilsen in his report of 1 July 2021 states at [2] as follows: 'In my previous review dated 23 September 2012, I noted that Ms Wells was able to perform between one and two 10 - 12 hour shifts per week but since the accident, she has been unable to return to this occupation. Currently given Ms Wells' ongoing pain, and loss of function, she is unlikely to return to her pre-injury work as a consequence of the most recent injury. Ms Wells is unlikely to be capable of performing sedentary type duties although she is likely to only be able to do this part time with a requirement of more frequent rest breaks to manage her ongoing pains. Ms Wells would require a sympathetic employer and would be at a significant disadvantage on the open employment market upon disclosure of her current symptoms.'
3. From the context of the report, the 'most recent injury' is the injury sustained on 18 Mat 2020: Exhibit D at [1]. Further, at page 4 of that report, Professor opines as follows: '… Ms Wells stated that her left wrist and hand pain is now stable and that has been the case for the last six months. Ms Wells stated that her capacity to work, drive a manual car, participate in outside activities inclusive of gardening and repairing fences, has been significantly impacted by this recent wrist and hand injury. Ms Wells would like to return to her previous occupation as a Registered Nurse in Intensive Care, a job that she was able to participate in, albeit part-time, following her assault.'
4. The plaintiff was seen at the request of her solicitors, by Dr Andrzejewski, and her report of 1 October 2019 in exhibit E. At paragraph 4 of that report, having assessed the plaintiff on 7 May 2019, 14 May 2019 13 August 2019, 3 September 2019 and 1 October 2019, and taken what doctor described as a "comprehensive" assessment, she opined at [4]: 'Janet is currently working and tolerating this well.'
5. Further at [6] doctor opines as follows: 'My prognosis is currently guarded. Janet obviously demonstrates significant resilience, having endured crime in childhood and recovered from the post-traumatic stress disorder symptoms form [sic] that event entirely. She continues to experience the chronic impact of being the victim of crime being isolated for[sic] her community, not feeling like she can trust authorities' and needing to relocate and recommence a new life and establish a new life for herself and her family. She demonstrates significant resilience in that she has returned to work, but has few strategies that she is currently able to use when she does become overwhelmed by her flashbacks and post-traumatic stress disorder symptoms …'
6. Prior to this incident, the plaintiff worked for six months at Wyong Hospital as a Registered Nurse within the casual pool performing four to five 10 hour shifts per week. Subsequent to the incident she had a three to six month period of being unable to work as a consequence of the injuries sustained in the assault, as recorded by Prof Neilsen. She was then able to perform between one and two ten-hour shifts per fortnight. When seen by Prof Neilsen on 26 August 2019, the Professor records that she was working as an agency nurse, usually in an intensive care unit, where she works one to two shifts of 10 to 12 hours per week.
7. Whilst I accept that is for the defendant to 'unscramble the egg', I have not been persuaded that the plaintiff suffered anything more than a fractured wrist in this incident, which would only have kept her out of the workforce and needing care and assistance for no more than about 3 months.
8. If I had to assess damages, I would allow a buffer of $10,000.00 for past economic loss, inclusive of superannuation, and I would make no allowance for future economic loss. I would allow $5,000.00 for domestic care and assistance. No submissions were advanced on behalf of the plaintiff as to the costs of medical treatment, nor were any receipts for treatment produced. I therefore would make no allowance for treatment expenses past or future. This injury in my view would not result in a percentage of a most extreme case as to entitle the plaintiff to damages under that head, and I would not award any damages for non-economic loss.

ORDERS

1. I make the following orders: 1. Judgment for the Defendant. 2. I order the plaintiff pay the defendant's costs as agreed or assessed. I grant liberty to the parties to apply to my associate within 14 days should any other costs order be sought.

Amendments 16 February 2022 - coversheet - amended case name DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 February 2022