Zioukin v Bellissimo t/as Bellissimo Lawyers and Studio Legale

Catchwords: NEGLIGENCE — causation — loss of chance — solicitor negligence — where settlement by Deed did not include a personal injuries claim — where decision to not make a personal injuries claim was advertent

Legislation Cited: Civil Liability Act 2002 (NSW), s 54
Crimes Act 1900 (NSW), ss 59, 60, 546C (repealed)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 99(1)(a), 99(1)(b)(i), 99(3), 99(4), 231
Legal Profession Uniform Law Application Act 2014 (NSW)
Limitation Act 1969 (NSW), ss 14(1)(b), 18A(2)
Liquor Act 2007 (NSW), s 77

Cases Cited: Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd and Another (1991) 22 NSWLR 389
Director of Public Prosecutions (NSW) v SB [2020] NSWSC 734; [2020] NSWSC 734
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Malec v JC Hutton Pty Ltd [1990] 169 CLR 638; [1990] HCA 20
McIntosh v Webster (1980) 43 FLR 112
Pritchard v DJZ Constructions Pty Ltd; Gilles v DJZ Constructions Pty Ltd [2012] NSWCA 169; [2012] NSWCA 196
Sellars v Adelaide Petroleum NL; Poseidon Ltd v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4
Wynn v New South Wales Insurance Ministerial Corporation [1995] 184 CLR 485; [1995] HCA 53
Zaravinos v State of New South Wales (2004) 62 NSWLR 58; [2004] NSWCA 320;

Category: Principal judgment

Parties: Andre Zioukin (Plaintiff)
Frank Bellissimo (Defendant)

Representation: Counsel:
Mr R Hanrahan (Plaintiff)
Mr C Wood SC (Defendant)
Solicitors:
Rocco Michael Ardino (Plaintiff)
Gilchrist Connell (Defendant)

File Number(s): 2020/00229524

Publication restriction: None

Judgment

Introduction

1. On 7 August 2011, the plaintiff was refused entry to the Star Bar, which at the time was situated on George Street in the Sydney CBD. The circumstances surrounding this incident are in dispute and I shall, to some extent, return to that dispute later in these reasons. Following interactions first with the Star Bar’s security staff and ultimately the Police, the plaintiff was arrested and charged.

2. The plaintiff was aggrieved with what had occurred and retained a solicitor to commence proceedings against the State of New South Wales as being vicariously liable for the acts and omissions of the arresting Police officers. That solicitor is the defendant, Mr. Bellissimo.

3. On 15 November 2016, the plaintiff commenced proceedings against the State of New South Wales, pleading causes of action in assault and battery, wrongful arrest, and false imprisonment (the “Police Proceedings”).

4. Unusually, but importantly for these proceedings, the Statement of Claim in the Police Proceedings expressly disavowed any claim for personal injuries. The final sentence of paragraph 20 of the Statement of Claim is in the following terms:

“The plaintiff makes no claim for personal injury damages.”

5. The defendant put on a defence denying liability.

6. It should also be noted that, at the time at which the Police Proceedings were concerned, the Limitation Act 1969 (NSW) provided a statutory barring of claims in personal injuries not commenced within three years of the date of the cause of action arising, but a statutory barring of claims in respect of intentional torts not involving personal injuries of six years (see ss 18A(2) and 14(1)(b) of the Limitation Act 1969 (NSW)). Thus, subject to the possible agitation of issues of the discoverability of a cause of action in respect of personal injuries, such a claim by the time of the commencement of the Police Proceedings was statute barred.

7. The parties settled the Police Proceedings by way of Deed dated 17 October 2018 (“the Deed”). This settlement involved a payment of $15,000 to the plaintiff. The Deed also provided that the defendant would pay the plaintiff’s Costs. I was informed from the bar table that these Costs were agreed between the parties at $47,000.

8. The Deed in its clause 1.2 stated:

“The parties agree that the Proceedings did not involve a claim for personal injury damages and as such, costs are not limited to 20% of the amount recovered or $10,000 by virtue of cl. 2(1)(a) of Schedule 1 of the Legal Profession Uniform Law Application Act 2014 (NSW).”

9. It can be seen from the foregoing that both parties to the Police Proceedings had at the forefront of their thinking the costs capping provisions of the Legal Profession Uniform Law Application Act 2014 (NSW) (“LPULAA”).

10. There can be no doubt that the plaintiff knew that the Statement of Claim in the Police Proceedings disavowed a personal injuries claim. In that regard, it should be noted that, in his evidence in chief, the plaintiff never suggested that the Statement of Claim in the Police Proceedings did not reflect his instructions to solicitors and Counsel. As such, I infer that the plaintiff’s evidence, if adduced in chief, would have “exposed facts unfavourable” to him (see Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd and Another (1991) 22 NSWLR 389, per Handley JA).

11. Notwithstanding what appears to be the obviously considered decision by the plaintiff to not bring a personal injuries claim against the defendant in the Police Proceedings, he now alleges that his solicitor in these proceedings was negligent in not pleading and prosecuting such a claim. The plaintiff’s case is that the failure of the solicitor to commence personal injuries proceedings within time deprived him of the chance of succeeding in such litigation.

Mr Zioukin’s Credit

12. Mr Zioukin’s credit is important to resolving many issues in the case. As such, it may be helpful to deal with this topic at the outset of these reasons.

13. Mr Zioukin presented as an unsatisfactory witness of the highest order. Indeed, to describe his evidence as merely unsatisfactory is to understate the situation. His evidence was contemptuous of the Court, involving many examples of a steadfast refusal to answer questions in a responsive manner, despite being directed to do so. He constantly used his time in the witness box to advocate his case. I have little hesitation in concluding that, in his evidence, he was quite happy to surrender the truth in order to advance his case by advocacy from the witness box.

14. I am unable to accept any of his evidence, unless that evidence is corroborated by documents, or against interest.

Was the decision to not amend the Statement of Claim in the Police Proceedings to plead a case in personal injuries an advertent one?

15. Having found that the initial decision to not plead a case in personal injuries was an advertent one based on the plaintiff’s instructions, it is necessary to consider whether the defendant was not negligent in failing to amend the Police Proceedings to plead a case in personal injuries.

16. The defendant, Mr Bellissimo, produced a file note relating to a conference held with his client (the plaintiff) and Counsel briefed in the matter. The file note was tendered without objection and is marked DX-1 (“the File Note”). It concerns a conference occurring on 6 July 2017. Thus, the File Note refers to a conference which occurred prior to the settlement of the Police Proceedings. It was clear that the File Note concerned the commercial viability of the plaintiff’s claim.

17. The File Note contains, amongst other things, the following:

“– Paid fine (favours them)

– Could still lose.

– Commercial viability

< 100k.

below threshold of [illegible] compare to MEC.

[The indented items above are highlighted with a stylised star]

– Give e.g’s as to <100k need to [illegible] as OOC.”

18. Later, the following appeared under the heading “Factors”:

“– How evidence comes out

– View of judge

- Many different possible outcomes

– Appeal by insurer.”

19. Also in evidence was Mr Bellissimo’s itemised bill of Costs. The entries under “06/07/17” record the following:

“Conference with John [a reference to Counsel retained for the plaintiff] discussing client’s emails and latest email and matters to discuss with client at conference today.”

20. A further entry at the same time was:

“Conference with Frank [seemingly the solicitor’s mode of reference to his client] discussing update as to matter, risks of litigation and evidence to be served to prove heads of damage.”

21. On the same date there is an entry regarding a meeting between Mr Bellissimo and his client, the plaintiff. Then, later on, under the same date:

“Meeting with client discussing his claim.”

22. Further on the same day there appears the following:

“Conference with client discussing claim generally in presence of John Pappas.”

23. Further analysis of the bill of Costs discloses the following entries which are of some relevance:

“11/10/11 Draft letter to Counsel enclosing client’s statement and CCTV footage

19/10/11 Telephoned to Counsel to arrange a conference

19/10/11 Email to Frank to confirm appointment

28/05/13 Conference with Counsel discussing matter, medical situation and need to commence proceedings as soon as possible. [Emphasis added]

29/07/14 Conference will solicitor, contact Counsel

25/03/15 Conference with Frank regarding the progress of the claim generally and which barrister should receive amended brief so as to avoid any possible court issues with limitations. [Emphasis added]

19/10/16 Conference with client relating to the filing of pleadings and providing update instructions in light of newly received information, including penalty notice, St Vincent discharge summary. Also attended Counsel chambers and consulted with Dean Woodbury in relation to filing and the content of pleading

2/11/16 Email to Counsel providing instructions from client re SOC

04/11/16 Review statements of client in anticipation of drafting SOC

04/11/16 Draft Statement of Claim in accordance with conference notes from Counsel and instructions received by way of email from Client”

24. It seems clear to me that, from these documents, it can be deduced that the issue of limitation of action at all relevant times was under active consideration by Mr Bellissimo until the filing of the Statement of Claim. Further, that decisions as to matters relating to the limitation questions and the costs capping regime were discussed with the client, and were the subject of the plaintiff’s instructions. I find that those instructions were obtained both at the time of the commencement of the Police Proceedings, and during the period of the plaintiff’s consideration of resolving them.

25. In my view, the File Note of 6 July 2017 can only be rationally understood to be evidencing a consideration of settlement of the Police Proceedings. During this conference I infer that the plaintiff was advised that if a personal injuries claim was to be made at that time, then the commercial viability of the proceedings would be cast in doubt. This was so, as in that scenario it was unlikely that the plaintiff would be adjudged to achieve a verdict in excess of $100,000.

26. This eventuality would have led to the Police Proceedings being ‘commercially unviable’ due to the operation of the costs capping provision.

27. The plaintiff was cross-examined on the defendant’s File Note of 6 July 2017 conference. His evidence in this regard was characteristically unsatisfactory. He initially admitted that he was aware of the fact that if he failed to achieve a judgment in excess of $100,000 for a personal injuries claim his Costs would be capped (see Transcript pinpoint (“Tp”) 38.30-35). He was then asked the following:

“Q. And you understand that because that’s a matter that you discussed with your legal team in 2017, isn’t it?

A. I think it was - I think the issue was that the - Mr Bellissimo’s team - Mr Bellissimo’s team - okay, no. So I did speak about this and I’m not sure if I can bring it up. Sorry, is this actually privileged?”

28. I should add at this point that by the time of giving evidence before me, the plaintiff was part way through a law degree, and during his evidence displayed a tolerably sophisticated understanding of the legal issues involved in the case.

29. The plaintiff then commenced backtracking from his evidence as to the costs capping issue.

30. At Tp 40.23 to 41.15, the following is reported:

“WOOD

Q. You discussed in mid-2017 with your solicitor, Mr Bellissimo, the commercial viability of your personal injury claim against the Police, didn’t you?

A. Where does it say that?

Q. Just listen to my question, if you wouldn’t mind.

A. Yes.

Q. You discussed the commercial viability of your personal injury claim against the Police with your solicitor, Mr Bellissimo, in mid-2017, didn’t you?

A. I don’t think so.

Q. You’ll see the document that you have in front of you, in about the middle of the first page, has the words “commercial viability”. Do you see those words?

A. Yeah, I can see them.

Q. Then you see the words under it, there’s an arrow, and then 100k?

A. It’s possible--

Q. Do you see those words, Mr Zioukin?

A. It’s possible--

Q. Do you see those words?

A. Yeah, I do. Yeah, yeah.

Q. Then you see the words underneath it. There’s a mention of the word

“threshold”. Do you see that word?

A. Yeah.

Q. Does that trigger for you a recollection of having a discussion with Mr Bellissimo where the commercial viability, the $100,000 cap, and the threshold for personal injury were discussed?

A. I would need to check my records.

Q. You did discuss those matters with Mr Bellissimo in mid-2017, didn’t you, Mr Zioukin?

A. Why can’t I check my records?

HIS HONOUR: Just answer the question.

WITNESS: I - but - okay. Well, without checking my records, I cannot answer this question. I don’t know.”

31. The plaintiff later stated that the reason why the personal injuries case did not proceed was because it was out of time. I do not accept this evidence.

32. At this stage, I would also note that the defendant did not call Mr Bellissimo. There was, however, no submission on behalf of the plaintiff that I should draw an adverse inference from this fact (see Jones v Dunkel (1959) 101 CLR 298). As a consequence, I do not do so. I should add parenthetically that even if such an adverse inference was sought, I would not have considered that any failure to call Mr Bellissimo was unexplained. I would have taken this view as the documents to which I have earlier referred make clear that Mr Bellissimo was conscious of the limitation issues from the very outset of his obtaining instructions, and that the forensic strategy of not seeking personal injuries damages because of the costs capping issues was an advertent one, taken on instructions, and maintained until the conclusion of the proceedings by way of settlement.

33. As such, in my view, the explanation for not calling Mr Bellissimo was not that the defendant “feared” to call him (see Jones v Dunkel (1959) 101 CLR 298 at 320 per Windeyer J). Rather I would infer that Mr Bellissimo was not called because his evidence was unnecessary.

Conclusion on Negligence

34. I thus find that the defendant was not negligent in advancing a case in the Police Proceedings which did not include a claim for personal injuries, as the decision to proceed in that manner was made on the plaintiff’s instructions. These instructions, in turn, were given by the plaintiff having regard to the commercial viability of the proceedings should a case in personal injuries be run, given the costs capping provisions of the LPULAA. I also conclude that the Statement of Claim was not later amended to plead a case in personal injuries for the same reason, which reason was also the subject of the plaintiff’s instructions.

35. Having so found, it is arguably unnecessary for me to proceed further. That said, as certain issues loomed large in the proceedings it may assist if I was to briefly deal with certain of them.

What Happened on the Night in Question?

36. The Police version of what occurred on the night of 7 August 2011 and the plaintiff’s version differed significantly. The plaintiff was denied entry to the Star Bar in the early hours of 7 August 2011. He appears to have been aggrieved by the fact that his friends had succeeded in gaining entry, but he had not. The plaintiff admitted that, after the initial denial of entry, he thereafter had made two more attempts to enter the premises. These attempts were unsuccessful and he was required by the security staff of the Star Bar to vacate the area. He claims to have happily accepted this third direction to leave and says that, thereafter, he was unnecessarily put upon by Police and arrested.

37. The Police version of what occurred paints a vastly different impression of the events in question. The COPS entry relevant to what occurred stated that the plaintiff resisted Police and wrestled with them. The entry showed the plaintiff to have been angry outside the Star Bar and refusing to leave. He was placed under arrest for failure to quit a licensed premises. The Police led him away from the front of the Star Bar and placed him against a wall. The COPS entries record the following:

“At about 12.40am same day Police were on George Street when they were approached by Ms Giglio telling them that the Accused had returned and was standing on the footpath in front of the Star Bar & Grill refusing to leave.

Upon their return to the Star Bar, Police recognised the Accused to be the same person they saw earlier in the night. Police spoke to the Accused who refused to leave the vicinity saying, “What have I done wrong?” Police took hold of the Accused arm saying “You are now under arrest for Fail to Quit a licensed premises,” and taking the Accused by the arm led him away from the front of the Star Bar and placed him against a wall. Police spoke to the Accused requesting his identification. Whilst Police were searching through his wallet the Accused was continually stepping forward despite numerous requests by Police to stand still. As a result Police placed handcuffs on the Accused in order to control his movements. The Accused immediately became aggressive pushing against Police, Police then struggled with the Accused trying to place him on the ground. With help of a security guard from another Licensed Premises, Police managed to place the Accused on the ground where he commenced to shout abuse at Police saying, “This is fucked, you are all fucking cunts, fuck off,” continually despite numerous requests by Police to stop swearing.”

38. The COPS entries then record the following:

“A caged truck was called and arrived a short time later. The Accused was placed inside and conveyed to Surry Hills Police Station and placed in the dock. The Accused was not offered an opportunity to be interviewed due to his intoxication and aggression. The Accused was issued an Infringement Notice no. 4911634631 for ‘Excluded person re-enter vicinity of Licensed Premises’ for the matter now before the court.” [Emphasis added]

39. The Star Bar security staff incident report is consistent with the Police version.

40. I reject the plaintiff’s evidence of what occurred on the night of 7 August 2011 and accept the Police version as described in the Police records to which I have referred. The angry aggressive man referred to in the Police records is completely consistent with the angry aggressive plaintiff who I saw in the witness box. The COPS entry depicts a person who was seemingly contemptuous of the authority of the Police. This was also consistent with the manner in which the plaintiff was contemptuous of the Court’s authority generally, and of my frequent directions to him to answer questions responsively in particular.

41. I do not believe the plaintiff’s version of events which occurred on the night in question. I consider it highly likely that the Court, in a hypothetical case against the Police, would similarly find.

The Brammer Report

42. The plaintiff called Mr Mal Brammer, a former senior New South Wales Police officer to give expert evidence as to the conduct of the Police on the night in question. He opined that the Police actions were unnecessary and contrary to applicable procedures. The defendant urged me to find that I should reject Mr Brammer’s evidence on the basis that Mr Brammer lacked the objectivity required of an expert. I do not do so.

43. That said, I nonetheless do not accept Mr Brammer’s evidence. Mr Wood of Senior Counsel, who appeared for the defendant, submitted that I should do so as Mr Brammer’s opinions were based on factual assumptions entirely inconsistent with the Police version of events on the night in question, together with the accounts set forth in the incident reports of the Star Bar security staff. As I have previously indicated, I accept the Police version of the events in question and reject the evidence of the plaintiff.

44. The adoption by Mr Brammer of the plaintiff’s version of events in question in toto culminated in Mr Brammer asserting that the arrest occurred in circumstances where the plaintiff had “decided to go home” (see Tp 88.20). Mr Brammer concluded that the plaintiff, having “decided to go home”, was “basically … leaving the area” (see Tp 87.35). I reject this version of what occurred, and thus reject Mr Brammer’s evidence as it relies on facts which, upon my factual findings, have not been proved (see Makit**a (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705).

45. Mr Brammer also made significant concessions in cross-examination which, in my view, have a radical effect on his conclusion as stated in his report. He accepted that if the hypothetical Judge in Mr Zioukin’s case against the Police had accepted the Police version of him stepping forward, that would have made a difference to Mr Brammer’s opinions (see Tp 92.43-49; 92.19-24; 91.10-15; and the Brammer Report at [53]).

46. Mr Brammer also agreed that a finding that physical contact with the Police had occurred would change the picture completely (see Tp 92.43-48; 93.44-46, although compare Tp 94.45).

47. Mr Brammer also accepted that if the matters recorded in the COPS report were accepted, those facts raised the possibility of charges relating to resisting arrest, assaulting Police, aggressive and violent language (see Tp 95.24-26, 95.28-30, and 95.32-34). Importantly, Mr Brammer agreed that if the COPS report was 100 per cent accurate, it would be “very difficult to argue that the arrest was unlawful” (see Tp 95.36-38). His written conclusion that wrist locks and arm locks could have been used while Mr Zioukin was handcuffed descended into evidence that the Police should have asked him nicely to sit down (see Report of Mal Brammer 3 November 2021, [101(f)] of plaintiff’s tender bundle, and Tp 103.1-12).

48. In reaching his conclusion that unnecessary force was applied to the plaintiff when he was on the ground, Mr Brammer made an assumption that Mr Zioukin was compliant, but complaining (see Tp 100.14-20). He accepted, however, that if Mr Zioukin started writhing and wrestling with the Police, after this point, then this fact would lead to a strong argument that the use of force by the Police was reasonable (see Tp 99.38.41; 99.44-46; 99.48-50; 100.1; 100.14-20).

49. Having accepted the Police version of what happened on the night in question, I find Mr Brammer’s Report to be of no material assistance.

Was the Plaintiff’s Arrest Lawful?

50. In my view, Mr Zioukin’s attempted re-entry to the Star Bar and returning to the 50 metre radius are offences under s 77 of the Liquor Act 2007 (NSW). This constitutes the repetition or continuation of the offence. As a consequence, in my opinion, the Police had the power to arrest and detain the plaintiff (see ss 99(1)(a), 99(1)(b)(i), 99(4) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”)).

51. An arresting officer’s exercise of his or her discretion to arrest will not be unlawful if it is compliant with s 99(3) of LEPRA and if it is within the bounds of reasonable grounds (Zaravinos v State of New South Wales [2004] NSWCA 320 at [24]). Any fair review of the arresting officer must be free of unreal, retrospective criticisms of “what an arresting constable might or might not have done or believed in the circumstances” (McIntosh v Webster (1980) 43 FLR 112 at 123). The enquiry is primarily directed to the state of mind of the arresting officer, that is his or her belief in the actual or likely offence and belief in necessity of the arrest (Director of Public Prosecutions (NSW) v SB [2020] NSWSC 734 at [66], [88] per Walton J).

52. In the present case, there was an overwhelming likelihood that Police would have given evidence that was consistent with their notes. In my view, that evidence would have established the relevant belief that Mr Zioukin had not “decided to go home”, became aggressive, would not stand still, and would re-offend.

53. In my view, it follows that the arrest was unlawful only if the force used was excessive in the circumstances prescribed by s 231 of LEPRA. The Police actions, which are said by the plaintiff to have caused injury, were performed after Mr Zioukin was arrested and handcuffed. Far from the picture that the plaintiff attempted to paint in his evidence, there is evidence that he was offensive, argumentative, aggressive and even assaulted Police. The COPS event report states that a security guard’s assistance was needed to restrain the plaintiff.

54. Having handcuffed and detained the plaintiff, the contemporaneous Police records reveal that the plaintiff continued to step forward towards Police, which they perceived to be aggressive. The plaintiff accepted that he acted in this fashion (see Tp 45.24-49).

55. Having accepted the Police version of what occurred, I find also that excessive force was not used by the arresting Police officers.

56. Mr Wood submitted that, at the time of the offence, s 546C (repealed) of the Crimes Act 1900 (NSW) addressed the offence of resisting or hindering Police. This offence carried a maximum penalty of 12 months imprisonment. He also submitted that charges were also available for assaulting Police under s 60. Mr Zioukin’s actions also contravened s 59 in common assault. The relevance of these potentially serious offences is that, in the Police Proceedings, the State had invoked s 54 of the Civil Liability Act 2002 (NSW) (“CLA”). The Police pleaded that recovery for any injury was precluded by s 54 of the CLA. I find that it is likely that judgment would have been entered for the State of New South Wales on this basis.

Causation

57. As to causation, Mr Wood drew my attention to the need to bear in mind the fact that causation in loss of chance cases such as the present needs to be established on the balance of probabilities. This, he submitted, was in contrast to the valuation of the alleged lost chance which is to be assessed in the same way as any other damages claim based on hypotheticals, which may involve discounts to reflect uncertainties (Malec v JC Hutton Pty Ltd [1990] 169 CLR 638; [1990] HCA 20). In that regard he relied on the Judgment of Whealy JA in Pritchard v DJZ Construction**s Pty Ltd; Gilles v DJZ Constructions Pty Ltd [2012] NSWCA 169, which in turn explained and relied upon the High Court decision of Wynn v New South Wales Insurance Ministerial Corporation [1995] 184 CLR 485.

58. As to causation, therefore, I must consider the issue on the basis that the plaintiff has to establish what would have occurred if the personal injuries claim had been pleaded within time. I do not consider that the plaintiff has done so. In my view, he has not established either that he would have settled the case for a greater amount than he did ($15,000 + $47,000 in Costs) nor has he proved that he would have run the proceedings successfully to judgment.

59. Taking the settlement counter factual scenario first, to my mind it is wholly unlikely that the plaintiff would have in fact obtained a better settlement if the personal injuries claim for damages had been pleaded. On the contrary, it is likely in my view that the plaintiff would have been worse off in that scenario. I take this view as, in my opinion, any settlement in those circumstances would have been for a sum considerably less than $100,000, and as such the costs capping regime would have attached to the settlement.

60. As to the second causation scenario, that is to say the judgment scenario, in my opinion if the plaintiff had in fact run the proceedings to judgment, he would have been wholly unsuccessful. Given my evaluation of the plaintiff’s qualities as a witness, it is in my opinion inconceivable that he would have been found to be a witness of truth by another judge. To my mind, it is inconceivable that the plaintiff’s evidence would be preferred to that of the Police.

61. The High Court in Sellars v Adelaide Petroleum NL; Poseidon Ltd v Adelaide Petroleum NL (1994) 179 CLR 332 (“Sellars”) at 355 said that it was necessary for the plaintiff in a loss of chance case to show some loss, which loss had “some value (not being a negligible value)”. In my view, the plaintiff in the present case has not done so. I have set forth earlier in these reasons why the plaintiff, had he run his case as including a personal injuries claim, would not have succeeded in that claim.

62. Each of the following factors taken alone, in my view, would be sufficient to lead to this result:

63. The unlikelihood of the plaintiff’s evidence being accepted by the Court in preference to the Police case which would have been supported by the evidence of Police officers, which evidence in turn was supported by contemporaneous documents.

64. The likely finding that the plaintiff’s arrest was lawful.

65. The likely success of the Police defence reliant on s 54 of the CLA.

66. As I have indicated, each of these factors, even if taken alone, would be fatal to the plaintiff’s case against the Police. In my view, taken together, these factors would have guaranteed the plaintiff’s failure in the hypothetical Police case since, adopting the language of the High Court in Sellars, the value of the loss would be of “negligible value”.

Value of Loss of Chance

64. Considerable time was devoted to factual issues which I apprehend went to the valuation of the plaintiff’s lost chance. I do not consider it necessary, or appropriate, to consider and decide these questions, as in my opinion the plaintiff has not established the existence of such a chance.

Other Issues

65. Certain other issues were agitated at trial which went to the issue as to whether any personal injuries were in fact incurred during the plaintiff’s arrest. Given my findings, I do not consider it necessary to decide these issues.

Conclusion

66. For the foregoing reasons there should be Judgment for the defendant against the plaintiff. Costs should follow the event.

Orders

67. Accordingly, I make the following Orders:

68. That there be Judgment and verdict for the defendant against the plaintiff.

69. That the plaintiff pay the defendant’s Costs.

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