Cho v Dayoub

[2024] NSWDC 97

District Court

New South Wales

Medium Neutral Citation:

Cho v Dayoub [2024] NSWDC 97

Hearing dates:

6, 7, 8, 9 and 17 November 2023

Date of orders:

9 April 2024

Decision date:

09 April 2024

Jurisdiction:

Civil

Before:

Coleman SC ADCJ

Decision:

See paragraph 604

Catchwords:

TORT – intentional tort – whether Plaintiff proves disputed allegations – credibility of parties – whether conduct proved by Plaintiff constitutes trespass to the person, assault on Plaintiff and/or battery of Plaintiff on the occasions alleged by her – whether tortious conduct of Defendant was intended to cause injury to the Plaintiff within the meaning of s 3B(1)(a) of the Civil Liability Act 2002 – whether damages to which the Plaintiff establishes an entitlement are assessed pursuant to the Civil Liability Act or the common law – nature, seriousness and likely duration of any injury from which Plaintiff suffers – whether tortious conduct of Defendant caused any injury, loss or damage suffered by Plaintiff – whether any injury, loss or damage suffered by Plaintiff caused by or referable to any pre-disposition of Plaintiff to suffer injury, loss or damage – whether later attack on Plaintiff by third party aggravated Plaintiff’s condition or extended its likely duration – whether Plaintiff has suffered any past or present economic loss or will suffer such loss in future as a result of tortious conduct of Defendant – remoteness from tortious conduct of Defendant of any past, present or future alleged economic loss suffered by Plaintiff – quantum of any general damages to which the Plaintiff entitled – whether Plaintiff entitled to aggravated and/or exemplary damages – quantum of aggravated and exemplary damages – costs

Legislation Cited:

Civil Liability Act2002 (NSW), ss 3B, 11, 21 and 28

Civil Procedure Act 2005 (NSW)

Crimes Act 1900 (NSW)

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW), s 9(1)(b)

Evidence Act 1995 (NSW), ss 79 and 140

Cases Cited:

A v N [2012] NSWSC 354

Appleton v Garrett [1996] PIQR 1

Bennett v Minister of Community Welfare (1992) 176 CLR 408; [1992] HCA 27

Blacktown City Council v Hocking [2008] NSWCA 144

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Browne v Dunn (1893) 6 R 67 (HL)

C Van der Lely NV v Bamfords Limited (1963) RPC 61

Carter & Anor v Walker & Anor [2010] VSCA 340

Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320

Coote v Kelly [2013] NSWCA 357

Croucher v Cachia [2016] NSWCA 132

Darby v Director of Public Prosecutions (2004) 61 NSWLR 558; [2004] NSWCA 431

Dasreef Pty Limited v Hawchar (2011) 243 CLR 588; [2011] HCA 21; (2011) 277 ALR 611; (2011) 85 ALJR 694

Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc (2020) 103 NSWLR 658; [2020] NSWCA 294

Fagan v Metropolitan Police Commissioner [1969] QB 439

Fede v Gray by his Tutor NSW Trustee and Guardian [2018] NSWCA 316

Fontin v Katapodis (1962) 108 CLR 177

Fox v Percy (2003) 214 CLR 198; [2003] HCA 22 at [20]

Gautam v Health Care Complaints Commission [2021] NSWCA 85

Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187

Gray v Motor Accident Commission (1998) 196 CLR 1

HG v The Queen (1999) 197 CLR 414; (1999) 73 ALJR 281

Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168

Irlam v Byrnes [2022] NSWCA 81

Jones v Dunkel (1959) 101 CLR 298

Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349

Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47

Lane v R [2013] NSWCCA 317

Lim v Cho [2018] NSWCA 145

Louis v Commonwealth (1987) 87 FLR 277

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20

Manly Council v Byrne and Anor [2004] NSWCA 123

Mansour v Marhop Pty Limited [2023] NSWDC 476

Mason v Demasi [2009] NSWCA 227

Musa v Alzreaiawi [2021] NSWCA 12

Nguyen v Tran [2018] NSWCA 215

Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69

Payne v Parker [1976] 1 NSWLR 191

PP v DD (No. 20) [2021] NSWSC 1312

Project Blue Sky Inc v Australian Broadcasting Association (1998) 194 CLR 355; [1998] HCA 53

Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112

Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34

Rixon v Star City Pty Limited (2001) 53 NSWLR 98

Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48; (2005) 221 ALR 32; (2005) 79 ALJR 1534

Seltsam Pty Limited v Ghaleb [2005] NSWCA 208

Spedding v State of New South Wales [2022] NSWSC 162

State of New South Wales v Ibbett [2005] NSWCA 445

State of New South Wales v McMaster [2015] NSWCA 222

State of New South Wales v Riley (2003) 57 NSWLR 496

State Rail Authority of New South Wales v Chu [2008] NSWCA 14

Stillwell Trucks Pty Limited v McKay & Ors [2002] NSWCA 292

Tame v New South Wales; Annetts v Australian Stations Pty Limited (2002) 211 CLR 317; [2002] HCA 35; (2002) 149 AR 449; (2002) 76 ALJR 1348

TCN Channel Nine Pty Ltd v Anning [2002] NSWCA 82

The Nominal Defendant v Cordin [2017] NSWCA 6

Uren v John Fairfax & Sons Pty Limited (1966) 117 CLR 118

Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44

Watson v Foxman (1995) 49 NSWLR 315

Watts v Rake (1960) 108 CLR 158; [1960] HCA 58

West v Mead [2003] NSWSC 161

Wilkes v Wood (1763) 98 ER 489

Category:

Principal judgment

Parties:

Plaintiff: Joanne Cho
Defendant: Salem Dayoub

Representation:

Counsel:
Plaintiff: Mr C Locke
Defendant: Mr B Necovski

Solicitors:
Plaintiff: Oliveri Lawyers
Defendant: CK Lawyers

File Number(s):

2020/195447

Publication restriction:

None

INDEX
Background	Paragraph 2
Parties’ pleadings	Paragraph 31
Issues for determination	Paragraph 72
Basis of assessment of plaintiff’s damages if liability established	Paragraph 73
Evidence	Paragraph 76
Credit	Paragraph 83
The evidence of the plaintiff	Paragraph 104
The evidence of Woo Hiun Kim	Paragraph 195
The evidence of Angelo Nadis	Paragraph 201
The evidence of the defendant	Paragraph 208
The incident on 28 August 2019	Paragraph 227
The incident on 2 November 2019	Paragraph 231
The incident on Christmas Eve 2019	Paragraph 237
Findings with respect to the events of Christmas Eve 2019	Paragraph 267
Whether the Plaintiff’s claim is governed by the Civil Liability Act 2002 (NSW)	Paragraph 282
Whether the plaintiff suffers from a psychiatric or psychological condition	Paragraph 324
Clinical records of Dr Meyerowitz and reports of Associate Professor Allan	Paragraph 326
Reports of Ms Barbara Preston	Paragraph 364
Wesley Hospital records	Paragraph 368
Medico-legal reports of Dr Roldan	Paragraph 377
Medico-legal reports of Dr Parmegiani	Paragraph 392
Medico-legal reports of Dr Roberts	Paragraph 415
Cross-examination of Dr Parmegiani and Dr Roberts	Paragraph 425
Dr Parmegiani’s evidence in cross-examination	Paragraph 430
Dr Roberts’ evidence in cross-examination	Paragraph 452
Parties’ submissions with respect to medico-legal evidence	Paragraph 465
Findings with respect to medico-legal evidence	Paragraph 503
Damages – the parties’ submissions	Paragraph 514
Damages – consideration	Paragraph 535
Aggravated damages	Paragraph 549
Exemplary damages	Paragraph 559
The plaintiff’s economic loss claims	Paragraph 571
The plaintiff’s out of pocket expenses claim	Paragraph 598
Conclusion	Paragraph 601
Interest	Paragraph 602
Costs	Paragraph 603
Orders	Paragraph 604

Judgment

1. By Amended Statement of Claim filed 9 March 2023, particulars of which were filed on 3 February 2023, Joanne Cho (the Plaintiff) sought that Salem Dayoub (the Defendant) pay her compensatory damages for assault, battery and trespass to the person; aggravated and exemplary damages for assault, battery and trespass to the person; damages for past, present and future economic loss; interest calculated in accordance with the Civil Procedure Act 2005 (NSW) and costs. By Second Amended Defence filed 27 October 2023, the Defendant sought dismissal of the Plaintiff’s Amended Statement of Claim.

Background

2. In order to appreciate the issues for determination in the light of the parties’ pleadings, some brief uncontroversial background to the proceedings is instructive.

3. For some time prior to late 2014 the Defendant lived at 10 Loch Lomond Crescent, Burraneer (Number 10), with his family. The Defendant continues to live at Number 10. In late 2014, the Plaintiff and her husband acquired, and moved into 12 Loch Lomond Crescent, Burraneer (Number 12). They continue to live at Number 12. The two properties adjoin, and comprise substantial residences with expansive water views over Burraneer Bay. A masonry wall separates the properties. The events which gave rise to these proceedings occurred whilst the parties were on their own premises.

4. On or about 1 April 2016, the Plaintiff purchased a property 24 Conrads Road, Mount Warrigal (Mount Warrigal). On 12 February 2018, the Plaintiff purchased a property 102 Shellharbour Road, Warilla (Warilla). Each of those properties was leased to tenants during the Plaintiff’s ownership of them, the former being residential premises, the latter being let to a commercial entity. The properties are relevant to the Plaintiff’s claim for economic loss.

5. Prior to mid-2019, although never “friends”, the parties lived peacefully in their respective homes. Neither interfered with the other’s quiet enjoyment of her/his home.

6. In July 2019, the Defendant erected a vertical steel beam immediately adjacent to the boundary wall between his and the Plaintiff’s properties. On 30 July 2019, the Plaintiff complained to the Sutherland Shire Council (“Council”) about the works which the Defendant had commenced. The Plaintiff made essentially two complaints, each of which appears to have had substance. The first was that the steel beam was impermissibly close to the boundary between the parties’ properties. The second was that the works which the Defendant had commenced building, a shade cloth structure, required, but lacked, council approval. The Defendant did not have, or obtain council approval until quite some time later, inferentially as a result of the Plaintiff’s complaint to the Council. The incident marked the commencement of an unfortunate and increasingly acrimonious relationship, which culminated in the events of Christmas Eve 2019. Those, and events which the Plaintiff alleged had occurred from August 2019 gave rise to the present proceedings.

7. On 30 July 2019, there was an exchange of words between the parties across their dividing boundary wall, each party remaining on her/his property . Although the topic of conversation is not in doubt- the Defendant’s shade cloth construction- what was actually said is controversial.

8. On 26 August 2019, there was a further exchange of words between the parties, the Plaintiff’s nephew and the Defendant’s son across the dividing boundary wall. The Plaintiff and her nephew remained on her property. The Defendant and his son remained on the Defendant’s property. That event is the basis of the first assault alleged by the Plaintiff. The Defendant denied that he committed any assault on that occasion.

9. In late August 2019, the Plaintiff made further complaints to the Council about the works which the Defendant was apparently continuing to undertake on his property.

10. On 27 September 2019, the Plaintiff received email advice from the Council that it had advised the Defendant to cease the building works on his property until development consent was obtained. The evidence does not establish that the Defendant did further work on the shade cloth shelter at that time, or until after the events of relevance in this case had occurred.

11. On 28 September 2019, the Plaintiff observed several broken eggs around her property. The Plaintiff alleged that, although neither she nor her husband or any witness in her case saw him do so, the Defendant was responsible for the broken eggs on her property. The Defendant denied ever having thrown eggs onto or around the Plaintiff’s property. The Plaintiff alleged that, between 28 September and 25 December 2019, she found approximately 100 broken eggs around her property. No witness gave evidence in the Plaintiff’s case of having seen the Defendant do anything with eggs. The Defendant denied responsibility for the eggs being there.

12. On 30 September 2019, the Plaintiff found multiple holes which had apparently been drilled into the tyres of a vehicle owned by her or her husband which was parked on the street in the vicinity of the Plaintiff’s home, which she alleged was the work of the Defendant. No witness in the Plaintiff’s case gave evidence of having seen the Defendant interfering with the tyres of any vehicle of the Plaintiff or her husband. The Defendant denied responsibility for any damage to any motor vehicle of the Plaintiff or her husband.

13. On 1 October 2019, the Plaintiff discovered holes which had apparently been drilled into a PVC sewerage pipe at the rear of her property, and was sprayed with fluid escaping from the pipe through such holes, which she alleged was the work of the Defendant. No witness in the Plaintiff’s case gave evidence of having seen the Defendant doing anything of the kind alleged by the Plaintiff. The Defendant denied that he was responsible for any of the damage allegedly suffered by the Plaintiff.

14. On 4 October 2019, the Plaintiff discovered that a three metre section of boundary fence had been removed and placed on her property, damaging the handrail on wooden stairs at the rear of her property. The Defendant admitted that he had engaged a contractor to replace the wooden section of fence with metal fencing at his sole expense. The Defendant said that he was not present when the work was done by the contractor, and was not responsible for the placement of any timber on the Plaintiff’s property. There is no reason to doubt the reliability of the Defendant’s version of that event. Photographic evidence produced by the Plaintiff provides support for her claim with respect to the placement of timber fencing material on her property, but creates no obstacle to acceptance of the Defendant’s account of this event.

15. On 23 October 2019, the Plaintiff discovered that cables for a CCTV camera focused on the front courtyard of her property had been damaged. The Plaintiff alleged that the Defendant was responsible for such damage. No witness in the Plaintiff’s case claimed to have seen the Defendant damaging the Plaintiff’s cables. The Defendant denied responsibility for any damage to the cables.

16. On 2 November 2019, there was an incident across the dividing boundary wall, involving the Plaintiff, her friend, Mr Angelo Nadis, and the Defendant. The Plaintiff and Mr Nadis remained on the Plaintiff’s property. The Defendant remained on his property. This incident is the basis of the second assault alleged by the Plaintiff. The Plaintiff alleged that the Defendant sprayed her with a garden hose. The Defendant denied that he had done so.

17. On 17 November 2019, the Plaintiff discovered metallic shavings spread across her courtyard and the roof of her garage. The Plaintiff alleged that the Defendant was responsible for the shavings being placed on her property. No witness in the Plaintiff’s case claimed to have seen the Defendant doing so. The Defendant denied that he was responsible for any metal shavings being on the Plaintiff’s property.

18. Late on the evening of 24 December 2019, the Defendant, whilst standing on his rear balcony, sprayed the Plaintiff, who was standing within the bounds of her property, with water through a garden hose on a number of occasions. During the course of the incident the Plaintiff alleged that the Defendant said words to the effect of “You fucking crazy bitch, I want to kill you” on a number of occasions. The Defendant denied using those words. He could not deny the hosing, which was captured on the Plaintiff’s CCTV. The Plaintiff alleged that, during the incident, the Defendant threw stones at or towards her on a number of occasions. The Defendant denied having done so. The exchanges between the parties continued until early into 25 December 2019. Throughout these reasons, the Court will refer to the events of late 24 and early 25 December 2019 as the events of Christmas Eve 2019.

19. On 26 December 2019, police attended the Plaintiff’s premises in response to a complaint made by the Plaintiff with respect to the events of Christmas Eve 2019, which gave rise to the Plaintiff’s trespass, assault and battery claims. Police charged the Defendant with offences under the Crimes Act 1900 (NSW) and the Crimes (Domestic and Personal Violence) Act2007 (NSW).

20. In January 2020, the Plaintiff complained to her general practitioner, Dr Meyerowitz, about anxiety and depression which she alleged were referrable to the conduct of the Defendant on Christmas Eve 2019, and was referred to a psychologist.

21. On 26 January 2020, the Defendant climbed on the boundary wall between the parties’ properties. His doing so is not a pleaded part of the Plaintiff’s claims.

22. Between March and early June 2020, the Plaintiff found a number of white landscaping pebbles around her property similar to those which she alleged had been thrown during the evening of 24 December 2019. No witness in the Plaintiff’s case gave evidence of seeing the Defendant doing anything of the kind alleged by the Plaintiff. The Defendant denied having thrown stones, or done any of the things alleged by the Plaintiff.

23. On 24 April 2020, the Plaintiff sold Mount Warrigal.

24. On 2 July 2020, the Plaintiff commenced the present proceedings.

25. On 23 July 2020, the Plaintiff was admitted to Sutherland Hospital, and on 27 July 2020 was admitted to Wesley Psychiatric Hospital.

26. On or about 20 August 2020, the Plaintiff suffered injuries at the hands of a random attacker and was hospitalised.

27. On 4 October 2020, the Defendant climbed on the boundary wall between the parties’ properties. His doing so is not a pleaded part of the Plaintiff’s claims. Later that month the Plaintiff was readmitted to Wesley Psychiatric Hospital for a period of 10 days.

28. On 5 November 2021, the Defendant was found guilty of common assault on 24 December 2019, and received a conditional release order pursuant to s 9(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

29. On 17 November 2021, the Plaintiff was readmitted to Wesley Psychiatric Hospital where she remained until 11 January 2022.

30. On 24 November 2021, the Plaintiff sold Warilla.

The Parties’ Pleadings

31. The Plaintiff alleged (paragraph 1 of the Amended Statement of Claim (“ASOC”)) that on or about 26 July 2019 the Defendant erected two beams in the backyard of his premises and that (paragraph 2 ASOC) one of the two beams was located within one metre of the boundary between the property of the parties. The Defendant admitted those allegations.

32. The Plaintiff alleged (paragraph 3 ASOC) that she and her husband obtained a copy of the local council regulations and, on 30 July 2019, the Plaintiff’s husband informed the Defendant that one of the two beams he had erected was too close to the boundary and in breach of council regulations. The Defendant did not admit those allegations in his Second Amended Defence but, at the hearing, did not dispute those allegations.

33. The Plaintiff alleged (paragraph 4 ASOC) that the Defendant said to her husband that he would not move away and would not cut the offending beam. The Defendant did not admit those allegations but, at the hearing, neither of those contentions was disputed.

34. The Plaintiff alleged (paragraph 5 ASOC) that on or about 5.00 p.m. on 26 August 2019 she was in the backyard of her home in the company of Woo Hiun Kim. The Defendant admitted that at the time the Plaintiff alleged, he had observed her in her backyard with another person who he was not able to identify. At the hearing it was not in dispute that the person who was present with the Plaintiff in her backyard was Mr Kim, the Plaintiff’s nephew.

31. The Plaintiff alleged (paragraph 6 ASOC) that she said to the Defendant words to the effect that one of the beams had been erected by him in breach of local council rules and that the Defendant (who was in the company of his son) said to her in a loud voice words to the effect of “It will not go well for you if the council gets involved”. The Defendant denied that he said those words.

32. The Plaintiff alleged (paragraph 7 ASOC) that she then said to the Defendant words to the effect of “What do you mean by that?”, to which the Defendant allegedly replied “You will see, just wait and find out”, called her a “fucking stupid woman” and then threw several objects violently against the boundary wall. The Defendant alleged that, whilst remaining on her own side of the wall, the Plaintiff held a mobile phone towards him which appeared to the Defendant to be being used to film him, and that he asked the Plaintiff to “leave me alone” and “go away”, but that the Plaintiff refused to stop and said to him “What are you doing?” and “I’m going to call the Council on you”. The Defendant admitted that he called the Plaintiff words to the effect of “a fucking crazy stupid bitch”, but did so in response to the Plaintiff’s alleged conduct, and without intending to cause injury to the Plaintiff.

33. The Plaintiff alleged (paragraph 8 ASOC) that on the morning of 28 September 2019 she observed broken eggs in the front courtyard area, backyard, and on the garage, on her motor vehicle and on her husband’s motor vehicle. The Defendant did not plead to those allegations on the basis that they contained no allegations against him. At the hearing, the Defendant maintained his innocence with respect to these allegations. No witness in the Plaintiff’s case attested to having seen the Defendant doing anything with eggs at any time.

34. The Plaintiff alleged (paragraph 9 ASOC) that from 28 September 2019 to 25 December 2019 she discovered approximately 100 broken eggs in various locations around her property. The Defendant did not plead to the Plaintiff’s allegations as they did not contain allegations against him. At the hearing the Defendant maintained his innocence with respect to these allegations. No witness in the Plaintiff’s case attested to having seen the Defendant throwing or doing anything with eggs on any occasion.

35. The Plaintiff alleged (paragraph 10 ASOC) that, on or immediately prior to 30 September 2019, the front and rear tyres of a motor vehicle owned by her were damaged by the drilling of multiple holes in the front driver’s side tyre and in the rear driver’s side tyre. The Defendant did not plead to those matters as they did not contain allegations against him. At the hearing the Defendant maintained his innocence with respect to these allegations. No witness in the Plaintiff’s case attested to having ever seen the Defendant doing anything to a motor vehicle owned by the Plaintiff or her husband.

36. The Plaintiff alleged (paragraph 11 ASOC) that on or immediately prior to 1 October 2019 a sewage pipe on her property had been damaged by the drilling of several holes into it, and by damage to a rubber connecting ring, and that the supply of electricity to the sewerage system had been disconnected. The Defendant did not plead to those allegations, because they contained no allegations against him. At the hearing the Defendant maintained his innocence with respect to these allegations. No witness in the Plaintiff’s case attested to ever having seen the Defendant do anything of the kind alleged by the Plaintiff.

37. The Plaintiff alleged (paragraph 12 ASOC) that when she reconnected the plug to restore power to the sewerage system she was sprayed with effluent and ( paragraph 13 ASOC) that she and her husband were unable to use any plumbing on their property until it was repaired 3 days later. The Defendant did not plead to any of those matters as they did not contain allegations against him, but maintained his innocence with respect to them.

38. The Plaintiff alleged (paragraph 14 ASOC) that prior to 2 October 2019 a 3 metre section of boundary fence between the parties’ properties was removed without her consent and planks from the fence were deposited onto the backyard of her property. The Plaintiff further alleged that she found several broken eggs in the front yard of her property on that day. The Defendant admitted that a section of boundary fence had been removed by a contractor retained and paid for by him, but said that it was old and that he replaced it with a new fence. The Defendant maintained his version of events at the hearing, and denied that he was responsible for any broken eggs being on the Plaintiff’s premises.

39. The Plaintiff alleged (paragraph 15 ASOC) that during the morning of 2 November 2019 the Defendant drove his motor vehicle onto the footpath in front of the Plaintiff’s husband’s motor vehicle and said to him words to the effect “Have you called me?” to which the Plaintiff’s husband allegedly replied “No, I have not spoken to you since 28^th September”. The Defendant denied those allegations.

40. The Plaintiff alleged (paragraph 16 ASOC) that the Defendant said to her husband words to the effect “If you do not stop, I will drill punctures in your van and I will fix your house, too”. The Defendant denied those allegations.

41. The Plaintiff alleged (paragraph 17 ASOC) that on or about 2 November 2019 she was in the backyard of her home in the company of Angelo Nadis when the Defendant directed a powerful stream of water onto her and Mr Nadis. The Defendant denied those allegations.

42. The Plaintiff alleged (paragraph 18 ASOC) that during the course of the incident on 2 November 2019 the Defendant said to her words to the effect of “You are a fucking idiot, bitch, slut” and pointed at the Plaintiff and Mr Nadis with an extended finger in a manner mimicking the appearance of a pistol. The Defendant denied those allegations.

43. The Plaintiff alleged (paragraph 19 ASOC) that on the morning of 19 (or possibly 17) November 2019 she discovered aluminium shavings in her garage courtyard and on her garage roof and that, at approximately 8.30 a.m., the Defendant used a hose to spray aluminium shavings off the top of the boundary wall between the Plaintiff and Defendant’s property into the Plaintiff’s courtyard. The Defendant denied the Plaintiff’s allegations.

44. The Plaintiff alleged (paragraph 20 ASOC) that she used a ladder to climb onto her garage roof to remove the aluminium shavings, in the course of which she slipped on the shavings and fell injuring her right arm and shoulder. The Defendant did not plead to those matters as they did not contain allegations against him.

45. The Plaintiff alleged (paragraph 21 ASOC) that on or about 10.45 p.m. on Christmas Eve 2019, while the Plaintiff was within her home, she heard the sound of a loud impact. The Defendant did not plead to those matters as they contained no allegations against him.

46. The Plaintiff alleged (paragraph 22 ASOC) that she walked to the front courtyard area of her home where she observed several broken eggs. The Defendant did not plead to those matters as they contained no allegations against him, but denied that he was responsible for any broken eggs being on the Plaintiff’s premises.

47. The Plaintiff alleged (paragraph 23 ASOC) that, as she walked towards the rear of her property to inspect it for damage, the Defendant was standing on a balcony overlooking the Plaintiff’s home, that the Defendant left the balcony briefly, returned holding a garden hose, said to the Plaintiff words to the effect of “You fucking crazy bitch, I want to kill you”, and repeatedly directed powerful streams of water onto the person of the Plaintiff. The Defendant said that at the material time he was seated on his balcony, that there was a party and/or young persons congregated in the general vicinity of his and the Plaintiff’s property, that he was approached by the Plaintiff who was standing in her backyard and accused of being responsible for the broken eggs found on her property, shined a torchlight at him and held a mobile phone which appeared to the Defendant to being used to film him. The Defendant said that he informed the Plaintiff that he had no role to play in relation to the broken eggs stating “I’m sitting here it’s not me. Go and see the 20 or 30 kids outside”, and repeatedly asked the Plaintiff to stop filming him and shining a torchlight at him by saying “Don’t film me”. The Defendant alleged that the Plaintiff did not cease to shine the torch at him or continue to film him, that he walked to another part of his balcony, retrieved his hose, again asked the Plaintiff to stop shining her torchlight at him and filming him or else he would spray her phone camera with water stating “Stop filming me” and “Remove the camera”. The Defendant alleged that the Plaintiff refused to stop shining her torchlight at him and/or filming him whereupon he caused the hose to spray water at the phone the Plaintiff was holding. The Defendant admitted that water from the hose sprayed the Plaintiff but maintained that he had sprayed towards the Plaintiff’s mobile phone to deter her or cause her to cease filming him and/or invading his privacy and that he did not do so with intent to cause any injury to the Plaintiff. The Defendant otherwise denied the Plaintiff’s allegations.

48. The Plaintiff alleged (paragraph 24 ASOC) that she sought refuge from the violent conduct of the Defendant by retreating into her home, that the Defendant then directed powerful streams of water at the door by which the Plaintiff had re-entered her home so as to prevent the Plaintiff from using that door. The Defendant admitted that the Plaintiff re-entered her home but otherwise denied her allegations.

49. The Plaintiff alleged (paragraph 25 ASOC) that she subsequently used a different door to attempt to inspect the backyard, whereupon the Defendant threw several rocks at, or towards, the Plaintiff and repeatedly said to the Plaintiff words to the effect “You fucking crazy bitch, I want to kill you”. The Defendant said that the Plaintiff had re-entered her backyard from the same door that she had used to enter her home and denied the allegations made against him.

50. The Plaintiff alleged (paragraph 26 ASOC) that the rocks thrown by the Defendant at or towards her cracked two stone courtyard tiles but did not strike the Plaintiff’s person and that several stones also landed on the Plaintiff’s roof causing dents in the Colorbond roofing. The Defendant denied that he threw rocks at or towards the Plaintiff and did not admit that the Plaintiff’s premises sustained the damage alleged.

51. The Plaintiff alleged (paragraph 27 ASOC) that the Defendant then used the garden hose he was holding to direct powerful streams of water towards the Plaintiff’s garage and a CCTV camera which the Plaintiff had mounted on her garage above the garage door. The Defendant did not admit such conduct.

52. The Plaintiff alleged (paragraph 28 ASOC) that she went outside her property to attempt to wipe the water off the lens of the CCTV camera, whereupon the Defendant again directed streams of water onto the person of the Plaintiff and after she retreated into her home the Defendant continued to direct streams of water onto the garage door for a protracted period of time. The Defendant did not admit those allegations.

53. The Plaintiff alleged (paragraph 29 ASOC) that since 24 December 2019 the Defendant had continued to throw stones at the Plaintiff’s residence. The Defendant denied that allegation.

54. The Plaintiff alleged (paragraph 30 ASOC) that, by his conduct, the Defendant threatened, harassed, intimidated and terrorised her. The Defendant denied those allegations.

55. The Plaintiff alleged (paragraph 31 ASOC) that the Defendant’s acts constituted assaults of and batteries against the Plaintiff and trespass to the person of the Plaintiff. The Defendant did not admit that any conduct admitted by, or proved against him constituted assaults or batteries or trespasses to the person.

56. The Plaintiff alleged (paragraph 32 ASOC) that each of the acts of the Defendant was intentional and done with the intent to cause injury to the Plaintiff. The Defendant admitted that his conduct in turning the hose on the Plaintiff was intentional, but denied that he had intended to cause injury to the Plaintiff or injury which is the subject of any claim by the Plaintiff.

57. The Plaintiff alleged that, as a result of the Defendant’s conduct, she had suffered and continued to suffer loss and damage, particulars of her alleged injuries being:

1. major depression disorder;

2. adjustment disorder with anxiety and depressed mood;

3. mental anguish and suffering;

4. humiliation and indignity;

5. fear and distress of mind;

6. emotional distress.

62. The Plaintiff particularised her alleged disabilities as involving:

1. necessity for inpatient admission to Wesley Hospital for a period of 3 weeks for psychiatric care and treatment;

2. necessity for further inpatient hospital admission for a period of 2 weeks for psychiatric care and treatment;

3. pervasive and intense fear of assault, battery and verbal abuse by the Defendant;

4. pervasive and intense fear that the Defendant may carry out his verbal threat to kill her;

5. acute psychological distress as a result of assault, battery, verbal abuse and threats by the Defendant;

6. severe impairment of ability to leave her home by reason of fear of assault or battery by the Defendant;

7. severe anxiety;

8. panic attacks;

9. loss of appetite;

10. weight loss;

11. insomnia;

12. memory impairment;

13. severe impairment of ability to take part in social and recreational activities;

14. necessity for ongoing psychiatric, psychological, medical, pharmaceutical and other treatment;

15. impairment of earning capacity.

63. The Plaintiff particularised her claim for out-of-pocket expenses in the following terms:

1. by reason of the said conduct of the Defendant the Plaintiff has incurred expenses for medical treatment and psychological counselling, including the following:

1. consultations with Ms Barbara Preston, Psychologist, from 13 January 2020 until 5 June 2020 10 consultations at $130 per consultation (paid by Medicare);

2. consultations with Ms Barbara Preston, Psychologist, from 26 June 2020 until 17 July 2021 – 2 consultations at $130 per consultation;

3. consultations with Ms Barbara Preston, Psychologist, from 20 November 2020 to 19 January 2021 3 consultations at $130 per consultation (paid by Medicare);

4. consultations with Dr Zhen Zhang, Psychiatrist – 12 consultations at a total cost of $4,460 (total of $1,395.90 paid by Medicare);

5. consultations with Jun Mo Jeong, Psychologist, from 12 February 2021 to 27 October 2022 – 23 consultations at a total cost of $1,660 (total of $1,044.80 paid by Medicare);

6. admission to Wesley Hospital Kogarah, 27 July 2020 to 14 August 2020 – $500;

7. admission to Wesley Hospital Kogarah, 17 November 2021 to 11 January 2022 – $500;

2. in addition, the Plaintiff claims all monies paid by Medicare and refundable to Medicare Australia.

64. The Plaintiff particularised her claim for alleged future treatment expenses in the following terms:

1. by reason of the said injuries and disabilities, the Plaintiff will in the future continue to require psychiatric, psychological, medical, pharmaceutical and other treatment;

2. without derogating from the generality thereof, the Plaintiff will continue to incur the following expenses:

1. psychological counselling Jun Mo Jeong $170 per month;

2. psychiatric consultations Dr Zhen Zhang $380 per month;

3. medication $80 per month;

3. a claim for damages is made in respect thereof.

65. The Plaintiff particularised her claim for economic loss in the following terms:

1. by reason of the said injuries and disabilities, the Plaintiff has suffered and will in the future continue to suffer a loss of profits, a loss of capital gains, a loss of earning capacity, a loss of employment prospects in the open labour market, a loss of superannuation benefits, and a loss of other benefits including (but not limited to) long service leave;

2. as at July 2019 the Plaintiff was the sole registered proprietor of two investment properties in the Wollongong area (the properties);

3. the Plaintiff had purchased the properties for the purpose of deriving rental income therefrom, together with capital gains;

4. the Plaintiff was receiving rental income from the properties and was actively involved in the management of the properties;

5. by reason of the said injuries and disabilities suffered by the Plaintiff, she was unable to continue with the management of the properties, and the properties were sold in 2020 and 2021;

6. the Plaintiff suffered a capital loss in respect of the investment property that was sold in 2021, and a loss of prospects of realising a larger capital gain on the other investment property that was sold in 2020, and by reason thereof, the Plaintiff has suffered and continues to suffer a loss of rental income and capital gains as a result of the sale of the properties;

7. but for the said injuries and disabilities, the Plaintiff would have continued to own investment properties and to derive rental income and realise capital gains therefrom;

8. the Plaintiff makes a claim for past and future loss of rental income, the capital loss in respect of the investment property that was sold in 2021, the loss of prospects of realising a larger capital gain on the sale of the properties, and the loss of prospects of realising capital gains on investment property in the future;

9. the Plaintiff will require psychiatric, psychological, medical, pharmaceutical and other treatment in the future and claims economic loss in respect of the periods of such treatment and the convalescent periods subsequent thereto.

66. The Defendant did not admit that the Plaintiff suffered and/or continued to suffer injury, loss or damage, or was entitled to damages pursuant to any of the heads of damage relied by her. The Defendant denied that any injury, loss or damage suffered by the Plaintiff was caused by his conduct on Christmas Eve 2019 or otherwise.

67. The Plaintiff claimed (paragraph 34 ASOC) aggravated and exemplary damages, which were particularised in the following terms:

1. the Plaintiff was repeatedly assaulted, battered, subjected to repeated death threats, verbally abused, harassed, intimidated and terrorised by the Defendant in reckless disregard of her legal rights;

2. the Plaintiff was repeatedly assaulted, battered, subjected to repeated death threats, verbally abused, harassed, intimidated and terrorised by the Defendant without lawful justification and in contumelious disregard to the legal rights of the Plaintiff;

3. the Plaintiff relies upon paragraphs 6, 7 and 8 to 29 inclusive of this Amended Statement of Claim in respect of the said tortious conduct of the Defendant;

4. despite a finding of guilty having been made against the Defendant by Magistrate J Carney in Sutherland Local Court for assaulting the Plaintiff, and the Defendant being released on a conditional release order pursuant to s 9(1)(b) of the Crimes (Sentencing Procedure) Act1999 (NSW) on 5 November 2021, the Defendant has continued to repeatedly harass, intimidate and terrorise the Plaintiff in breach of the said conditional release order, without lawful justification and in contumelious disregard to the legal rights of the Plaintiff.

68. The Plaintiff particularised her claim for aggravated damages in the following terms:

1. the Defendant has failed and refused to apologise to the Plaintiff for his said tortious conduct towards her;

2. the Defendant has failed and refused to admit that he has engaged in the said tortious conduct towards the Plaintiff;

3. the Defendant has continued to harass, intimidate and terrorise the Plaintiff in breach of the said conditional release order, without lawful justification and in contumelious disregard to the legal rights of the Plaintiff;

4. in consequence thereof the Plaintiff has suffered and continues to suffer ongoing further and injury, loss and damage, including:

1. exacerbation and persistence of fear of assault, battery and verbal abuse by the Defendant;

2. exacerbation and persistence of acute psychological stress;

3. exacerbation and persistence of ability to leave her home;

4. exacerbation and persistence of severe anxiety;

5. exacerbation and persistence of panic attacks;

6. exacerbation and persistence of loss of appetite;

7. exacerbation and persistence of weight loss;

8. exacerbation and persistence of insomnia;

9. exacerbation and persistence of memory impairment;

10. exacerbation and persistence of impairment of ability to take part in social and recreational activities;

11. necessity for ongoing psychiatric, psychological, medical, pharmaceutical and other treatment;

12. exacerbation and persistence of impairment of earning capacity.

69. The Defendant denied that the Plaintiff was entitled to exemplary damages by virtue of s 21 of the Civil Liability Act2002 (NSW), and did not admit any of the allegations otherwise made by the Plaintiff in support of such claim.

70. The Defendant’s Defence raised (paragraph 35 Second Amended Defence (“SAD”)) contributory negligence. That defence was not maintained at the hearing, presumably in the light of the decision of the Court of Appeal in Irlam v Byrnes [2022] NSWCA 81.

71. The Defendant maintained (paragraph 37 SAD) that the provisions of the Civil Liability Act2002 (NSW) applied to the Plaintiff’s claim. That remained a live issue at the hearing.

Issues for determination

72. The issues for determination emerge from the pleadings as being:

1. whether the Plaintiff has discharged the onus of proof which she bears in respect of disputed issues of fact with respect to each of the occasions on which the Plaintiff alleged that she was the victim of trespass to the person, assault or battery by the Defendant;

2. whether such conduct as the Plaintiff establishes constituted trespass to the person of the Plaintiff, an assault upon the Plaintiff and/or a battery of the Plaintiff on any of the occasions alleged by her;

3. whether any tortious conduct proved against the Defendant caused the Plaintiff injury, loss or damage, and whether such conduct was the sole cause of such injury;

4. whether the any tortious conduct proved against the Defendant was intended to cause injury to the Plaintiff within the meaning of s 3B(1)(a) of the Civil Liability Act2002;

5. whether the assessment of any damages to which the Plaintiff establishes an entitlement is pursuant to the Civil Liability Act or the common law;

6. the nature seriousness and likely duration of any injury which the Plaintiff is found to have suffered as a result of the tortious conduct of the Defendant;

7. whether any tortious conduct proved against the Defendant is causally connected to any injury, loss or damage found to have been suffered by the Plaintiff;

8. the extent to which any injury, loss or damage found to have been suffered by the Plaintiff as a result of the Defendant’s tortious conduct was caused or aggravated by any pre-disposition of the Plaintiff to suffer such loss or damage;

9. the extent to which an attack on her by a third party in August 2020 aggravated or prolonged any injury, loss or damage suffered by the Plaintiff on Christmas Eve 2019;

10. whether the Plaintiff has suffered any past, present, or will suffer any future economic loss as a result of the tortious conduct of the Defendant;

11. the remoteness from the tortious conduct of the Defendant of any past, present or future alleged economic loss allegedly sustained by the Plaintiff;

12. the quantum of any general damages to which the Plaintiff is found to be entitled;

13. whether the Plaintiff is entitled to aggravated and/or exemplary damages.

Basis of assessment of the Plaintiff’s damages if liability established

73. In comprehensive written submissions filed on behalf of each party at the conclusion of the hearing, the Plaintiff particularised her damages on the basis that they were determined in accordance with the common law as:

1. general damages $200,000;

2. aggravated damages $20,000;

3. exemplary damages $5,000;

4. interest on past general, aggravated and exemplary damages $9,360;

5. past economic loss $97,334;

6. interest on past economic loss $2,515;

7. future economic loss $202,258;

8. future medical and other treatment expenses $91,845 (total $628,712, plus out-of-pocket expenses).

74. If the Plaintiff’s damages were awarded pursuant to the provisions of the Civil Liability Act, the amounts claimed were:

1. non-economic loss damages $199,000;

2. past economic loss $97,334;

3. interest on past economic loss $2,515;

4. future economic loss $177,864;

5. future medical and other treatment expenses $51,420.

75. Although disputing that the Plaintiff was entitled to any damages, and without resiling from that contention, the Defendant ultimately submitted that the Plaintiff should be awarded $21,210 if the Plaintiff established liability, and her damages were governed by the provisions of the common law, which comprised general damages of $20,000 and past treatment expenses of $1,210. If any damages to which the Plaintiff was entitled were governed by the provisions of the Civil Liability Act, the Defendant submitted that the only recoverable loss or damage was the sum of $1,210 for past treatment expenses.

Evidence

76. The Plaintiff filed a Tender Bundle (Exhibit P1) which contained the pleadings, medical reports of Dr Enrico Parmegiani, a medicolegal Psychiatrist who gave evidence on behalf of the Plaintiff, the Plaintiff’s primary and subsequent Affidavit, Affidavits by the Plaintiff’s husband, John Coolman, an Affidavit by Angelo Nadis and an Affidavit by Woo Hiun Kim. The Exhibit also comprised numerous receipts and other source documents.

77. As agreed with Counsel for the parties at the commencement of the hearing, although each of the parties’ Tender Bundles was received in evidence, apart from source documents, and particularly the Plaintiff’s medical and hospital records and NSW police records, the provenance of which was not controversial, the Court has relied only upon those documents to which it was expressly referred by counsel during the course of the hearing, or in the course of cross-examination where that was required. The Court is satisfied that neither party was in any doubt as to which documents were taken into consideration, and which documents were not.

78. The Plaintiff relied on CCTV footage of the events of 24 December 2019 (Exhibit P2). The CCTV footage was played during the course of the hearing during cross-examination of the Plaintiff, and later of the Defendant. Although the Court does not criticise Counsel for doing so, the footage was not then played sequentially from its commencement until its conclusion. As the transcript confirms, the Court experienced some difficulty in playing the CCTV footage of the events of 24-25 December 2019 from start to finish, as it needed to in order to properly evaluate the competing claims of the parties with respect to what occurred on Christmas Eve 2019. The Court subsequently, in response to its request, received, and has viewed the totality of Exhibit P2 from start to finish, for which it is grateful.

79. The Plaintiff’s statement to police of 24 December 2019 was in evidence (Exhibit P3). A further medicolegal report of Dr Parmegiani of 6 November 2023 (Exhibit P4) was also relied upon by the Plaintiff.

80. The Defendant relied on a Tender Bundle (Exhibit D1) which contained two Affidavits sworn by him, Affidavits sworn by his wife, daughter and son, together with Affidavits sworn by Ali Salhab, Jason Stokes, Rosanna Martinelli and Susanna Martinelli. After objections, little remained in all but the Affidavits of the Defendant. Of what remained, little of the affidavits impacted materially on the determination of disputed issues. In those circumstances, apart from the Defendant, none of his witnesses was required for cross-examination.

81. Exhibit D1 also contained a number of medicolegal reports from Dr John Roberts and reports from Psychologist Dr Fernando Roldan. Drs Parmegiani and Roberts were both cross-examined at the hearing. Dr Roldan was not required for cross-examination on his reports. A number of other documents were also contained in the Defendant’s Tender Bundle.

82. The Defendant also relied on documents contained in two volumes of cross-examination material (Exhibit D3). Properly, the Plaintiff did not suggest that the Defendant ought not be permitted to rely on any of the documents in those volumes. Reference will be made to such of those documents as the Court was referred to during the hearing in the course of reviewing the evidence of the parties.

Credit

83. The credibility, or reliability of the evidence of the Plaintiff and, to a lesser extent, of the Defendant assume considerable significance in the determination of the proceedings.

84. The credibility of the Plaintiff’s husband, Mr Coolman, and her nephew, Mr Woo Hiun Kim, was not suggested to have been damaged by their cross-examination. As will be seen, their evidence provides only limited assistance to the Plaintiff’s case. Properly, Mr Coolman’s silence with respect to numerous allegations made by the Plaintiff, which he ought to have been able to corroborate, and the vagueness of his evidence in support of the Plaintiff’s asserted post-Christmas Eve 2019 symptoms and conduct were relied upon by the Defendant in support of his contentions that the Plaintiff failed to prove her allegations with respect to those matters.

85. What happened on Christmas Eve 2019 is ultimately not in doubt in view of the contents of Exhibit P2. Although there is no CCTV footage of 26 August 2019 or 2 November 2019, the Court has the benefit of accounts of those events from the Plaintiff which were made far closer in time to the events, and before these proceedings commenced. The Plaintiff bears the onus of proof of those events. As will be seen, when those matters are considered, the version of events which is most likely to be reliable is the version which was given closest in time to the events themselves.

86. In Watson v Foxman (1995) 49 NSWLR 315 McLelland CJ in Equity considered in detail at [319] the “fallibility of human memory” and “the process of conscious and unconscious reconstruction of what occurred, or was said in a conversation”. The plaintiff’s evidence of disputed facts regularly revealed that “fallibility”, and “reconstruction” with respect to a number of disputed matters of substance.

87. In Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168, Hodgson JA said at [14] that in deciding facts according to the civil standard of proof “the Court is dealing with two questions: not just what are the probabilities on the limited material which the Court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision”. Those observation apply to the events of 26 August 2019 and 2 November 2019. The latter observation applies to the Plaintiff’s allegations with respect to eggs, metal shavings, tyre damage, damage to a sewer pipe and the replacement of a section of boundary fencing.

88. In A v N [2012] NSWSC 354 Ward J (as Ward P then was) embraced the statement by McLelland CJ in Equity in Watson at [318] that:

“Human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions of self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than impression from which plausible details are then again often subconsciously, constructed. All this is a matter of human experience.”

89. Ward J’s observations are apposite with respect to the evidence of the Plaintiff. Presumably for the reasons her Honour identified, whether consciously or subconsciously, the Plaintiff constructed a narrative with respect to a number of significant matters which, save with respect to the events of Christmas Eve 2019 which are confirmed by the CCTV footage of that evening, is not supported by the evidence of what was said, and not said, by her at the time the events occurred, or by any other circumstantial evidence.

90. Her Honour also embraced McLelland CJ in Equity’s statement at [349] that:

“Each element of the cause of action must be proved to the reasonable satisfaction of the Court, which means that the Court must feel “an actual persuasion of its occurrence or existence”. Such satisfaction is not “obtained or established independently of the nature and consequences of the fact or facts to be proved” including the “seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”.”

91. Relevantly for present purposes, Ward J added [350] that where evidence is given “long after” the occurrence of the events in question, the witness “may put their own gloss or interpretation on events in which they were emotionally involved and that, by now, those perceptions would be reinforced in their minds so that they will be convinced of the truth of those perceptions”. Her Honour’s statement aptly describes much of the Plaintiff’s evidence where it is disputed. So does the observation that, not only “do memories fade with time”, but “impressions of events may be accepted as fact”. The Plaintiff may genuinely believe many of the controversial statements made by her, despite the absence of support for, or, in some instances, inherent improbability of her allegations. Although most obviously relevant in the context of the plaintiff’s allegations with respect to the conduct of the Defendant, that observation is also relevant when the reliability of the Plaintiff’s evidence with respect to her pre and post-Christmas Eve 2019, and their impact on her lifestyle is evaluated.

92. In Coote v Kelly [2013] NSWCA 357 at [51] the Court of Appeal acknowledged that “memory is all too fallible”. In M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 534 McHugh J referred to the “everyday experience of the Courts that honest witnesses are frequently in error about the details of events”. The Court has focussed on the reliability of the parties’ evidence with respect to disputed issues of fact, and accepts that unreliability of recall need not involve conscious dishonesty.

93. The authorities urge caution with respect to making findings of material fact in reliance upon demeanour (Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349 at 351, 352; Fox v Percy (2003) 214 CLR 198; [2003] HCA 22 at [20]). In view of the manner in which the Plaintiff gave evidence when cross-examined about matters which she knew would not assist her case, the Court has been vigilant to avoid being unfairly adversely influenced by her demeanour when evaluating the reliability of the Plaintiff’s controversial evidence.

94. In Gautam v Health Care Complaints Commission [2021] NSWCA 85 Leeming JA said that in cases which Payne JA described at [83] as involving “starkly conflicting narrative accounts” the fact finding exercise should “commence with objectively established matters, against which the credibility and reliability of testimonial evidence can be assessed”, and that the resolution of issues involving credibility will usually “require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation”. His Honour also endorsed the “appropriateness of reasoning, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events” in those circumstances. As will be seen, that approach has considerable utility in the determination of these proceedings. Albeit in quite different ways with respect to the events of Christmas Eve 2019 on the one hand, and the events of 26 August and 2 November 2019 on the other, regard to those matters has materially assisted the Court to avoid having to make findings solely on the basis of oath against oath. The availability of contemporary materials, objectively established facts and the absence of “apparent logic” of some of the Plaintiff’s disputed allegations assume prominence in determining the Plaintiff’s claims with respect to her pre and post-Christmas Eve 2019 psychological health, her symptoms and their impact on her quality of life.

95. In The Nominal Defendant v Cordin [2017] NSWCA 6 at [165], Davies JA recorded, summarising numerous authorities, how credibility issues are to be approached:

“[165]   In Coote v Kelly; Northam v Kelly [2016] NSWSC 1447 I collected a number of authorities that have provided assistance in dealing with credibility issues and the fallibility of human memory. I recorded these authorities as follows:

[100]   In Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403 Lord Pearce discussed credibility. The first two matters he raised dealt with truthfulness, and he then went on to say (at 431):

Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.

[101]   In Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) Leggatt J said:

[15]   An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory.

[16]   While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people's memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate.

[17]   Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called 'flashbulb' memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description 'flashbulb' memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness's memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory).

[18]   Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time.

[19]   The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party's lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.

[20]   Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does or does not say. The statement is made after the witness's memory has been "refreshed" by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness's memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.

[21]   It is not uncommon (and the present case was no exception) for witnesses to be asked in cross-examination if they understand the difference between recollection and reconstruction or whether their evidence is a genuine recollection or a reconstruction of events. Such questions are misguided in at least two ways. First, they erroneously presuppose that there is a clear distinction between recollection and reconstruction, when all remembering of distant events involves reconstructive processes. Second, such questions disregard the fact that such processes are largely unconscious and that the strength, vividness and apparent authenticity of memories is not a reliable measure of their truth.

[22]   In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.

[102]   In Campbell v Campbell [2015] NSWSC 784 Sackar J said:

[73]   In Watson v Foxman (1995) 49 NSWLR 315 and 319, McLelland CJ in Eq made the following remarks:

…human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.

[74]   I made the following observations in Craig v Silverbrook [2013] NSWSC 1687 at [140]-[142]:

[140]   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.

[141]   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):

[30]   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 Merchants 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.”

[31]   Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. 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. This does not eliminate the established principles about witness credibility…

[142]   In the recent decision of McGraddie v McGraddieand 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 to the present case. Similar observations have been made in Australian authorities (Fox v Percy at [23]; Rosenberg 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).

[75]   In Camden v McKenzie [2008] 1 Qd R 39 at [34] Keane JA (as he then was) made the observation that “the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation.” This remark was cited with approval by Leeming JA (with whom Barrett JA and Tobias AJA agreed) in New South Wales v Hunt (2014) 86 NSWLR 226 at [56].

[76]   Hallen J recently set out the relevant principles in Evans and Braddock [2015] NSWSC 249 at [70]-[77]. After referring to Watson v Foxman, his Honour said:

[71] In that case, his Honour was talking of a cause of action founded on s 52 of the Trade Practices Act 1974 (Cth) or s 42 of the Fair Trading Act 1987 (NSW): see the discussion by McDougall J in Harbour Port Consulting v NSW Maritime [2011] NSWSC 813, at [10] - [18]. However, as McLelland CJ in Eq also pointed out, the views apply to all types of litigation.

[72]   I also remember what was said by Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56, at [48]:

“When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2).”

[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].

[74]   A court, in cases involving events which occurred long before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200, per Jagot J, at [1247]. Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160, per Kenneth Martin J, at [157].

[75] …

[76]   The circumstances of this case, make what was written by Tamberlin J in Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (trading as Uncle Ben’s of Australia) (Federal Court of Australia, Tamberlin J, 29 June 1995, unrep), at 122 - 123 (in a passage cited with approval by the High Court when it upheld his Honour’s decision: Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599, at [15]) appropriate to remember:

“[Given the lapse of time] between the events and conversations raised in evidence and the hearing of the evidence before me, the only safe course is to place primary emphasis on the objective factual surrounding material and the inherent commercial probabilities, together with the documentation tendered in evidence. In circumstances where the events took place so long ago, it must be an exceptional witness whose undocumented testimony can be unreservedly relied on. The witnesses in this case unfortunately did not come within that exceptional class. The discussions referred to in evidence were capable of bearing quite opposed meanings depending on subtle differences of nuance and emphasis, and a proper appreciation of the significance of those matters must necessarily be considerably diminished over such a long period of time.”

[77] Finally, I should mention an article by the former Chief Judge at Common Law, P McClellan entitled “Who Is Telling the Truth? Psychology, Common Sense and the Law” (2006) 80 ALJ 655, in which he wrote, at 665, quoting a passage from the “Guidelines Relating to Recovered Memories” (2000) of the Australian Psychological Society:

“Memory is a constructive and reconstructive process. What is remembered about an event is shaped by how that event was experienced, by conditions prevailing during attempts to remember, and by events occurring between the experience and the attempted remembering. Memories can be altered, deleted and created by events that occur during and after the time of encoding, during the period of storage, and during any attempts at retrieval.”” (Emphasis added).

96. Consistent with the Court’s approach, and with abundant authority to the same effect, Davies JA’s observations have informed, and been applied by the Court in evaluating the reliability of evidence of disputed facts in these proceedings (Mansour v Marhop Pty Limited [2023] NSWDC 476 at [78]). That is particularly so with respect to the evidence of the Plaintiff.

97. In Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187 at [20] Ipp JA, with whom Mason P and Tobias JA agreed, said that:

“Witnesses may be dishonest about only parts of their evidence. Nothing is more deceitful than half the truth. Care must be taken to differentiate between assessing whether a witness is being honest or deceitful, and whether a truthful witness is giving accurate or inaccurate testimony. Distinguishing truth from intentional deceit is a different exercise from distinguishing between true and false memory. A liar intends to be deceptive, whereas the faulty rememberer tries to be truthful. Discerning what is accurate or inaccurate in the testimony of a truthful witness may be the most difficult task of all. Particularly when cognitive illusions or memory malfunctioning and suggestibility are involved”.

98. The Court does not find that either party has intended to be deceptive or deliberately untruthful, much less that either has been shown to be a “liar”. Each party has a different perception and recollection, or reconstruction of many disputed events, and very substantial motivation to remember events in particular ways. Ultimately, as will be seen, making findings of fact with respect to what happened on Christmas Eve 2019 is not influenced by considerations of the kind to which Ipp JA referred, in view of the CCTV footage of that evening, which speaks for itself. In other respects, the difficulty to which His Honour referred is present, but ultimately resolved by the Court’s findings with respect to the reliability, or unreliability of the competing versions of disputed events in the light of circumstantial or other evidence of the kind which Davies JA discussed as informing the evaluation of the probabilities.

99. In Goodrich, Ipp JA also recorded at [21] “Another area where great care must be exercised in making demeanour findings is where a witness is from a different cultural and ethnic background to that with which the judge is familiar”. That description fits each of the parties in these proceedings. That is more so in the case of the Plaintiff than of the Defendant. The Court has been careful to avoid making findings of fact which involve the drawing of inferences in reliance upon nuances in the evidence of the parties in ways which may be unfair to them. Particularly in the case of the Plaintiff, the Court has been careful not to impute an intention to misspeak the truth when the Plaintiff has proffered implausible accounts of disputed events, or, as with her asserted pre-disposition to suffer injury when hosed by the Defendant, the impact of the violent attack on her in August 2020, and her economic loss claims, the Plaintiff has made assertions which were contrary to representations made her in prior statements, or contradicted by her own documents.

100. The Court is left in no doubt about what each party contends about relevant disputed issues of fact with respect to their 2019 exchanges. Ultimately, determining those matters is not problematic, for reasons which will become apparent. Determining the Plaintiff’s economic loss claim is ultimately not problematic. The more difficult matter is determining the reliability of the Plaintiff’s post-Christmas Eve 2019 complaints with respect to her symptoms, particularly as the medico-legal experts’ opinions are based significantly on whether the Court has an actual persuasion that the Plaintiff’s claims in that regard are reliable.

101. The Court accepts that English is not the Plaintiff’s first language. The Court is aware that the Plaintiff has previously given evidence with the assistance of an interpreter, although the Plaintiff appeared to criticise the accuracy of the interpretation which was provided by that interpreter, and preferred to give her evidence in these proceedings in English without the assistance of an interpreter. The Court has avoided adopting an unfairly literal interpretation of the Plaintiff’s evidence, and avoided drawing inferences which might be inappropriate, and unfair in the case of a witness whose first language is not English. The Court has been conscious of the need to keep these considerations in mind when assessing the credibility and reliability of the evidence of the Plaintiff. Despite any linguistic or cultural difficulties the Plaintiff may have had in giving evidence, the Court is satisfied that its findings with respect to damaging aspects of the Plaintiff’s evidence are based on questions and answers to them which the Plaintiff clearly understood. The Plaintiff struggled to responsively answer some questions in cross-examination, but did not appear to struggle, or claim to struggle to understand those questions. The Court is comfortable that, having regard to the totality of the evidence, the findings it makes with respect to the critical disputed issues of fact are not unfair, or arrived at unfairly to the Plaintiff.

102. As will be seen, the reliability of the Plaintiff’s evidence has been successfully challenged in part in reliance upon accounts of events or symptoms which she gave to the health professionals which appeared inconsistent with the Plaintiff’s oral testimony. The Court has approached those inconsistencies “with caution” (Mason v Demasi [2009] NSWCA 227, per Basten JA at [2]). The Court is satisfied that the reasons for such caution identified in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 to which his Honour referred do not miltate against relying upon the inconsistencies in assessing the reliability of the Plaintiff’s evidence of disputed facts. It has not been suggested, and the Court does not find that “elements of florid expression and exaggeration” in the Plaintiff’s oral testimony have been a “function of her psychological state” (Mason v Demasi, per Basten JA at [4]).

103. Mr Coolman was cross-examined only briefly but, consistent with the sensible approach of Counsel to the rule in Browne v Dunn (Browne v Dunn (1893) 6 R 67 (HL))(see West v Mead [2003] NSWSC 161), a lot of his unparticularised allegations with respect to the Plaintiff’s behaviour after Christmas Eve 2019 were not the subject of cross-examination. Mr Coolman has his version of certain events which are peripheral to the critical issues of disputed fact in this case, and there is no documentation to either confirm or refute it. Mr Coolman said nothing, or little about the critical events alleged by the Plaintiff. Cross-examination of him on those matters was thus not required. As will be seen when the Plaintiff’s claim with respect to her post 24 December 2019 symptoms and disability and claim for economic loss are considered, as the Defendant submitted, there is a significant silence in Mr Coolman’s evidence in some respects, and a vagueness in others. In view of the Court’s reservations about the reliability of the Plaintiff’s evidence in the respects identified later in these reasons, the absence of support for them from Mr Coolman renders acceptance of the Plaintiff’s allegations in those respects problematic.

559. In Riley at [138], in observations which resonate in this case, Hodgson JA, with whom Sheller JA and Nicholas J agreed, said that:

“While “conscious wrongdoing 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. Conduct may be high handed, outrageous, and show contempt for the rights of others, even if it is not malicious or even a conscious wrongdoing. 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 wrongdoer”.

565. Having regard to the principles governing awards of exemplary damages, the Court is satisfied that such an award is appropriate in the circumstances of this case. The Plaintiff was in her “castle” when she was subjected to the assault and batteries visited upon her by the Defendant. The Defendant’s conduct was “outrageous”, “high handed”, and showed a contempt for the rights of the Plaintiff to personal safety, and quiet enjoyment of her home. Only awarding general and aggravated damages would fail to sufficiently express the Court’s disapproval of the defendant’s conduct, and fail to sufficiently deter the Defendant from similar conduct in the future.

566. In Ibbett Spigelman CJ said at [79] that “the award of exemplary damages is to be assessed in the light of the awards of compensatory and aggravated damages. It is necessary for the Court to conclude that the amount of $25,000 to be awarded with respect to the assault was not sufficient to serve the objectives of punishment and deterrence to manifest the Court’s disapproval of the conduct.” On the facts of the case, the Chief Justice considered [80] that the award of $10,000 by way of exemplary damages was “manifestly inadequate” and considered [83] that the award for exemplary damages should be increased to $25,000.

567. Although each case turns on its own facts, and reference to awards in other cases are of limited assistance, it is not insignificant that, at [81], Spigelman CJ referred to what had been awarded for exemplary damages in other cases. As Spigelman CJ explained, at [83] the matters which justified an award of exemplary damages are also “pertinent” to an award of aggravated damages. His Honour said that “the difference is that in the case of aggravated damages the assessment is made from the point of view of the plaintiff and in the case of exemplary damages the focus is on the conduct of the defendant” but that it is necessary to “determine both heads of compensatory damages before deciding whether or not the quantum is such that a further award is necessary to serve the objectives of punishment or deterrence or, if it be a separate purpose, condemnation”. The Court has made findings with respect to general and aggravated damages.

568. Although the Court has not made the findings sought by the Plaintiff with respect to the various other allegations made by her, both before and after Christmas Eve 2019, it is not insignificant that, during the latter period, the Defendant has been subject to sanctions imposed by the Local Court. To what extent his good conduct is referable to that reality is unclear, but, having regard to the Court’s findings with respect to the Defendant’s conduct on Christmas Eve 2019, deterrence remains a relevant objective for present purposes, albeit subordinate to condemnation of the Defendant’s conduct.

569. The Court does not accept the Plaintiff’s contention that the Defendant “did not receive a substantial punishment by the Court in respect of the criminal charge of assault”. Conversely, it does not accept that the Plaintiff was disentitled on that basis to an award of exemplary damages. Unsurprisingly, the proposition that the consequences of criminal conduct can be raised advantageously in civil proceedings for damages was not sought to be supported by authority. The Court has regard in this context to the fact that the Defendant has never apologised to the Plaintiff for his conduct on Christmas Eve 2019, or proffered any assurance to her that he would never again act in that way.

570. In all the circumstances, an award of $15,000 for exemplary damages is considered to be appropriate. As with most evaluative or discretionary decisions, minds may reasonably disagree with that assessment.

The Plaintiff’s economic loss claims

571. The Plaintiff sought substantial damages for past, present and future economic loss. The Defendant submitted that the Plaintiff had not proved any past, present or future economic loss, and that, if she had, the Plaintiff had not established that such losses were caused by his tortious conduct. If relevant economic loss is proved, the Plaintiff must prove on the balance of probabilities that the Defendant’s tortious conduct caused or contributed to such economic loss.

572. For the reasons which follow, the Plaintiff has not proved any past, present or future economic loss. Although perhaps unnecessary in those circumstances to consider causality, the Plaintiff has not established a causal link between any such loss and the tortious conduct of the Plaintiff.

573. The Plaintiff claimed loss of income as well as capital losses, and loss of the opportunity to make future capital gains. Cavanagh J said in PP v DD (No. 20) [2021] NSWSC 1312 at [230] that “Like past loss, the Plaintiff must establish what his earning capacity would have been but for the Defendant’s conduct and to what extent that capacity has been diminished as a result” of the tortious conduct of the defendant.

574. The evidence referred to below establishes that, if the Plaintiff was unable to participate in property investment as a result of the Defendant’s conduct, that would not have necessitated or justified selling either of her investment properties. The Plaintiff’s minor involvement in those activities, and absence of evidence that her husband of many years could not, or would not have done them for or on her behalf are fatal to finding that any tortious conduct of the Defendant caused or contributed to any loss suffered by her on the sale of either property.

575. Cross-examination of the Plaintiff in relation to her economic loss claims destroyed any prospect of their success. It is appropriate to refer in some detail to the evidence which leads to that finding. To the extent that it is not expressly referred to in the context of this head of the Plaintiff’s claims, the general unreliability of the Plaintiff’s evidence referred to earlier also infects her economic loss claims.

576. The surveillance photos of the Plaintiff, and her responses to them in cross-examination, militate against finding that the plaintiff has been prevented or impeded in any way from undertaking such “property investment” activities as she undertook prior to Christmas Eve 2019. The Plaintiff’s claim is primarily in reliance upon the asserted impact on her psychological or psychiatric health and asserted inability to be able to cope with undertaking those activities. The Plaintiff has not established that she undertook any significant “property investment”, or other income generating activities prior to Christmas Eve 2019, or that she has been, or is unable to continue to undertake such activities as she did as a result of the tortious conduct of the Defendant.

577. The Plaintiff’s evidence with respect to her past and present financial circumstances was vague, lacking candour and unconvincing. The Plaintiff was cross-examined in relation to her assertion that, contrary to what she said at the time, in 2014 she experienced anxiety and stress for “financial reasons”. The Plaintiff was asked (T 161) “Mrs Cho, don’t you say that you are some sort of a property investor?” to which the Plaintiff replied “Yes, I invest – investment”. The Plaintiff was asked “The price that you buy a property at is very important, isn’t it?” The Plaintiff non-responsively, but helpfully for the Defendant, replied “But for years I didn’t do anything about the investment business”. It is less than clear whether the Plaintiff was referring to the present or 2014 in giving that answer. This uncertainty creates no difficulty- the Plaintiff has not articulated in any but vague terms what she claims to have done in any “investment business” at any relevant time.

578. The Plaintiff’s explanation (T 162) of her alleged financial difficulties in 2014 was vague. When invited to “explain yourself a bit better” (T 162) the Plaintiff replied “I don’t want to talking about for my investment business.” She was then asked “You don’t want to talk about it?” and replied “Yes”. When it was put to the Plaintiff “You’ve brought a claim for your investment business, haven’t you?” the Plaintiff replied “Yes, I’m doing for the investment business for the other area but this house is – I’m living in for – living all my life for the dream house, for the absolutely living until die. That is – I – my husband and myself plan to come in and buy this house”. When asked “When did you stop having financial difficulties?” the Plaintiff replied “Around 2015. I’m not sure, but after moving houses” but that she would have to look at all the account records. The Plaintiff confirmed that she had not looked at those records. They were never produced.

579. Subsequent cross-examination of the Plaintiff in relation to the acquisition of Number 12 (pages 163-164) elicited unresponsive answers from the Plaintiff which did not clarify her financial position, either in 2015 or at any time subsequently. The Plaintiff’s answers in cross-examination (T 164-169) on loan application documents, although not crucial, provided further support for scepticism about the extent to which the Plaintiff has been candid about her financial circumstances in the past or at present. Although the Plaintiff and her husband have apparently been married for many years, the Plaintiff’s husband gave no evidence about financial matters, and the Plaintiff’s own evidence was vague with respect to their joint financial position (T 170).

580. The Plaintiff’s economic loss claim is essentially that, having given no evidence of having had employment, or self-employment, other than allegedly in the context of management of her two South Coast investment properties, as a result of the Defendant’s conduct, the Plaintiff was unable to continue to manage those properties, needed to sell them, and did so, for a loss, thereby also losing the opportunity for future investment income and future capital gains. None of those allegations has been proved on the balance of probabilities.

581. The Plaintiff was cross-examined in relation to her alleged pre-Christmas Eve 2019 involvement with management of her property at 24 Conrads Road, Mount Warrigal. On 18 December 2018 the Plaintiff signed an exclusive management agency agreement with AAM Delta Pty Limited t/as MMJ South (Defendant’s Cross-examination Bundle 4916-4925). The document recorded (4916) the agent’s authority which included a detailed list of property management duties:

“(i)   obtain and verify references from prospective tenants;

(ii)   arrange inspections of the property by prospective tenants under the following circumstances:

(a)   where the property is not tenanted, in accordance with the owner’s instructions;

(b)   where the property is tenanted, in accordance with the owner’s instructions and subject to the provisions of the tenancy agreement;

(iii)   choose tenants;

(iv)   enter into and sign tenancy agreements;

(v)   collect rent in accordance with tenancy agreement;

(vi)   issue receipts for monies received from the tenants pursuant to tenancy agreement;

(vii)   receive, lodge, claim and disburse rental bonds in accordance with the provisions of the Residential Tenancies Act 2010;

(viii)   provide tax invoices and receipts when required in accordance with the tenancy agreement;

(ix)   review rent in accordance with any existing tenancy agreement and with respect to any new or renewed tenancy agreements;

(x)   serve notices in relation to any breach or termination of a tenancy agreement and as may otherwise be required;

(xi)   forward to the owner copies of any documentation signed by the agent on behalf of the owner;

(xii)   effect repairs and maintenance to the Property to a Maximum Pre-approved Maintenance Expenditure not greater than $1,000;

(xiii)   from time to time engage tradespersons as may be necessary;

(xiv)   prepare and maintain an inventory of fixtures, fittings and chattels;

(xv)   carry out inspections of the property as appropriate but not less than every 6-12 months;

(xvi)   advertise the property for letting or reletting in accordance with item (f);

(xvii)   in respect to each tenancy agreement, do all things and make such applications as may be necessary for the recovery of possession from tenants, and recovery of monies due;

(xviii)   respond to and represent the owner where applications are made and/or proceedings are brought by a tenant before the Civil and Administrative Tribunal;

(xix) in respect to smoke alarms installed on the Property, carry out, or appoint a contractor to carry out the Owner’s installation of maintenance obligations under the Environmental Planning and Assessment Regulation 2000 as amended;

(xx)   at the end of the tenancy agreement relet the property in accordance with the owner’s instructions.”

582. The documents produced by MMJ included a number of invoices from tradespersons. The Plaintiff tendered no evidence of having ever engaged tradespersons to do work on the property. The Plaintiff did not suggest that she had ever undertaken tasks which MMJ had contracted to undertake, or undertaken tasks additional to those tasks.

583. Quite apart from the absence of any evidence of the Plaintiff having undertaken work in relation to the management or maintenance of the property, the terms of the management agreement with MMJ make clear that the scope for potentially doing so was very limited in any event.

584. In cross-examination the Plaintiff suggested (T 172) that she and her husband “have to do some organising, some concrete workers and so many other” which she clarified by saying that she and her husband had to “bring in somebody to work in and doing some managing. Otherwise, real estate people never come to watching in for that property to – or anything renovation, something. … Some work, we have to do it ourself”. Other than reasserting that she and her husband had to do “some work” the Plaintiff was unable to give any evidence of work which she claimed that she or her husband actually undertook. The Plaintiff’s husband’s evidence did not advance her claims. To the extent that the Plaintiff’s evidence established that she or her husband played any part in the management of the property prior to Christmas Eve 2019, the minimal extent of it was such that, if, contrary to the Court’s findings, the Plaintiff was not able to continue to undertake such tasks, her husband would have readily been able to have done so. The Plaintiff’s husband gave no evidence that he was or would have been unable to do so.

585. The Plaintiff maintained (T 176) that “Because of Mr Dayoub and because of your injuries (she) had to sell this property”. The Plaintiff said (T 177) she believed that the decision to sell was made in 2020. When asked when she came to “the realisation that you needed to sell the property”, the Plaintiff was unable to respond, without looking at documentation with respect to the sale of the property. The highest the Plaintiff’s evidence came with respect to management of properties was (T 177) “Me and my husband, an inspection day have to be go together and, also, something broken, something fixed for renovation we have to go have look check and also asking real estate people to putting in somebody to fix that kind of things”. That claim was not supported by any documentation or the evidence of the Plaintiff’s husband, or any evidence that he could not, or would not have undertaken such activities if, which has not been established, the Plaintiff was unable to do so.

586. The Plaintiff was cross-examined on the sales inspection report and exclusive agency agreement which she signed with MMJ on 4 December 2019, three weeks prior to the events of Christmas Eve 2019. The Plaintiff’s efforts to explain why she took the decision to sell the property prior to the events of Christmas Eve 2019 were unconvincing. Not insignificantly, the Plaintiff did not suggest that the decision was made because she claimed that the Defendant had hosed her on 2 November 2019.

587. The Plaintiff set the sale price for the property. There is no evidence that the property sold for less than its market value. The Plaintiff gave no evidence with respect to the utilisation of the proceeds of sale of the property. What became of them is, and remains unknown to the Court. To the extent that the Plaintiff asserted that she lost the rental income from the property, the evidence does not establish that the Plaintiff was in a worse financial position as a result of selling the property than she would have been, had she not sold either or both of her investment properties. In cross-examination with respect to her financial position (T 180-182), the Plaintiff was consistently evasive, suggesting “I don’t do any financial figures anything all – my house. All – everything, my husband do it”. The Plaintiff’s husband gave no evidence about such matters.

588. The Plaintiff adduced no evidence from anyone qualified to give it with respect to the likely increases in the value of her investment properties had she retained them. Even if she had, absent evidence of her post sales financial position, and evidence from someone qualified to give it with respect to the impact of income and capital gains taxes on her doing so, the Plaintiff could not have made out her capital gains loss claim.

589. The Plaintiff was cross-examined with respect to the sale of her commercial property at 102 Shellharbour Road, Warilla (T 182ff). The Plaintiff was taken to the lease from Bislab Pty Limited to Pacific Smiles Group Limited signed in 2011. As is not in doubt, the Plaintiff acquired the property subject to the registered lease to Pacific Smiles. The lease entered into on 29 April 2011 was expressed to terminate on 28 April 2021. The lease provided two periods of five years by way of option to renew the lease. The covenants in the lease imposed requirements with respect to “maintenance and repair” on the lessee (clause 10). As is apparent from their terms, those obligations left little for the Plaintiff as owner of the premises to undertake. The “lessor’s obligations and rights” (clause 14) also imposed little on the way of the Plaintiff by way of active participation in the management of the premises. The Plaintiff gave no evidence of such participation in any event.

590. On 19 August 2021 (Defendant’s Cross-examination bundle, 4008) the Plaintiff and “Smiles Group Healthcare Pty Limited ATF Smiles Group Healthcare Trust” entered into a commercial lease which was expressed to be of twelve weeks’ duration, ending on 11 November 2021. Pacific Smiles did not exercise its option to renew the lease of the premises.

591. In cross-examination the Plaintiff confirmed (T 183-184) that she did not “want to carry on” the leasing of the premises, and that it was not sold to Pacific Smiles, but to another dentist or dental entity. The Plaintiff claimed (T 185) that her “husband and myself looking after that property when we buy, and until we sell”. That claim has no demonstrated foundation.

592. The Plaintiff was taken (T 185) to documents produced by EA Estate Agents (Defendant’s Cross-examination Bundle 4088), and agreed (T 186) that EA Illawarra Agency was managing the property in 2021. The Plaintiff asserted (T 188) that she sold the property after the lease expired “because it’s too much work for me”, and that she had to “do all the real estate, kind of work for this”. The Plaintiff has adduced no evidence establishing what she did in relation to the property, much less that any injury caused by the Defendant prevented her from continuing to do those things.

582. To the extent that the Plaintiff may have suffered a loss on the property, it has not been established that any such loss resulted from the forced sale of the property or that, even if it did, that loss was caused by the conduct of the Defendant. Perhaps, as the Plaintiff appeared to suggest, in response to Covid the price of the property diminished, but the Court does not speculate about that. The Plaintiff has not proved that the sale was other than pursuant to a commercial decision made by the Plaintiff at the time. The silence of the Plaintiff’s husband in this regard is relevant in that respect.

583. The Plaintiff was cross-examined on Tax Returns with respect to historical losses from her rental properties up until 2019. The Plaintiff’s Tax Returns recorded the following:

1. The Plaintiff’s Tax Return for the year ending 30 June 2011 revealed a taxable loss of $2,126 which was referable to a loss on “rental investing”. That loss related to a property apparently co-owned by the Plaintiff and her husband at 1637 Botany Road, Botany. For the year ended 30 June 2012 the Plaintiff had a net taxable income of $27,835 which comprised distribution from partnership or trusts of $13,491, superannuation payments of $18,380, and a share of loss on rental property of $4,046 with respect to the Botany property. A working sheet attached to the Return suggests that the Plaintiff’s taxable income for the year was zero dollars.

2. For the year ending 30 June 2013 the Plaintiff had a taxable income of $1,760. That was arrived at after a loss of $9,655 on a rental property. A worksheet with respect to the year suggests the Plaintiff’s income was “zero” dollars.

3. For the year ending 30 June 2014 the Plaintiff had a taxable income of $109,669. That sum was attributable to the Plaintiff’s share of a taxable capital gain on the realisation of the Botany property of $102,142, together with a distribution from partnership and trusts of $12,556. The worksheet attached to the Tax Return suggested an estimate of tax payable of $29,949.60.

4. The Plaintiff’s Tax Return for the year ended 30 June 2015 revealed a taxable income of $124,651. That was largely referable to the Plaintiff’s share of a taxable capital gain of $132,445. The worksheet attached to the Return recorded an estimate of tax payable of $36,560.85.

5. The Plaintiff’s Tax Return for the year ended 30 June 2016 recorded a taxable loss of $1,561. Included in that was a loss of $2,530 with respect to the Plaintiff’s property at 24 Conrads Road, Mount Warrigal.

6. The Plaintiff’s Tax Return for the year ended 30 June 2017 recorded a loss of $8,196. That was largely referable to a loss of $7,884 with respect to the Plaintiff’s rental property.

7. The Plaintiff’s Tax Return for the year ending 30 June 2018 showed a loss of $10,315, $9,875 of which was referable to the loss on the Plaintiff’s rental property at 24 Conrads Road, Mount Warrigal. The Plaintiff’s property at 102 Shellharbour Road, Warilla, revealed a net profit of $2,613.

8. The Plaintiff’s Tax Return for the year ending 30 June 2019 recorded a taxable income of $2,277. That represented the net rent from the Plaintiff’s investment properties of approximately $23,000 less losses carried forward from earlier years.

9. The Plaintiff’s Tax Return for the year ending 30 June 2020 revealed a taxable income of $51,330. That comprised net rent from investment properties of $24,894 and a taxable net capital gain of $27,030. To what the latter referred is unclear. The rental property schedule attached to the Tax Returns showed net rent of $24,894 in total for the Plaintiff’s two investment properties.

10. The Plaintiff’s Tax Return for the year ending 30 June 2021 showed taxable income of $15,056. That comprised $15,648 net income from the Plaintiff’s property at 102 Shellharbour Road, Warilla. By that time the Plaintiff had sold the property at 24 Conrads Road.

11. The Plaintiff’s Tax Return for the year ending 30 June 2022 showed a loss of $131. Not insignificantly the Return recorded that the Plaintiff had “net capital losses carried forward to later income years” of $46,453. To what extent that is referable to the realisation of 24 Conrads Road is unclear.

595. The Plaintiff’s tax returns provide no support for her claims. The plaintiff’s failure to reveal her current financial position, or details of the quantum and fate of the proceeds of sale of her rental properties deprive her of the opportunity to prove that she suffered, or will suffer loss as a result of their sales. The Plaintiff has not established that she was forced to sell either property because her injuries forced her to.

596. The Plaintiff was cross-examined on Tax Returns with respect to historical losses from her rental properties up until 2019. By 2021 the Shellharbour Road property was generating a taxable profit of $15,648. Whilst the Plaintiff lost the modest rental income which the properties reportedly generated, apart from the fact that the Court does not accept that the Plaintiff sold them other than for commercial reasons. The Plaintiff’s failure to give any evidence with respect to the quantum of the proceeds of sale, or what became of them precludes her successfully contending that she suffered, and will continue to suffer, any financial loss by way of lost income as a result of their sale.

597. For the foregoing reasons, the Plaintiff has failed to prove any aspect of her claims for economic loss.

Plaintiff’s past out-of-pocket expenses

598. The Plaintiff tendered a document, based on appropriate source documents, evidencing the payment of $9,580 with respect to psychological or psychiatric consultations and hospital attendances between 26 June 2020 and 28 September 2023. To the extent that there is any controversy with respect to those sums, the Court is satisfied that the evidence establishes that the Plaintiff incurred those expenses. Although involving an evaluative determination which lacks demonstrable precision, having regard to the Court’s findings with respect to the factors informing the assessment of the Plaintiff’s damages, apportioning those expenses on the basis that the Defendant should be liable for one half of them would be reasonable. So doing recognises the findings with respect to the Plaintiff’s pre-disposition to suffer injury of the gravity and for as long as she did, and the aggravating and prolonging impact of the August 2020 attack on her. The appropriate figure is thus $4,790.

599. The Plaintiff claimed future medical and other treatment expenses of $91,845. That was calculated on the basis of $3,240 per annum for psychological consultations, $1,600 per annum for psychiatric consultations, $3,000 per annum for medication, a total of $7,840 per annum. Those figures have an evidentiary foundation. The two issues requiring determination are the likely duration of those expenses and, related thereto, the liability of the Defendant with respect to them.

600. On the evidence of the Plaintiff’s medico-legal expert, her condition is likely to resolve by the end of 2024. The Plaintiff’s calculations assume that she will incur those medical and other treatment expenses for approximately 16 years. The evidence does not support a finding in those terms. Allowing a “buffer” of $10,000 for future medical and other treatment expenses would be a reasonable, if potentially slightly generous, allowance. The figure ignores any Medicare, health fund or other reductions in the amount which the Plaintiff will actually pay. For the reasons recorded above, and accepting that so finding lacks demonstrable precision, the Defendant should be liable 50% of that sum. The appropriate figure is thus $5,000.

Conclusion

601. The Plaintiff will be awarded general damages in the sum of $50,000, aggravated damages in the sum of $5,000 and exemplary damages in the sum of $15,000, a total of $70,000, together with past out-of-pocket expenses of $4,790 and future out-of-pocket expenses of $5,000. There will be a verdict and judgment for the Plaintiff in the sum of $79,790.

Interest

602. The question of pre-judgment interest remains to be determined. Although, having regard to the outcome of the Plaintiff’s claims, and the Court’s findings with respect to the various issues raised in the proceedings, it is disinclined to award pre-judgment interest, if that remains controversial, the parties may make brief written submissions with respect to the issue.

Costs

603. The Court will order that the Defendant pay the Plaintiff’s costs as agreed or assessed on the ordinary basis, and order that a party seeking a different order file and serve written submissions in support of such relief, and that a party resisting such an application file and serve written submissions in opposition to the granting of such relief.

Orders

604. I make orders as follows:

1. Verdict and judgment for the Plaintiff in the sum of $79,790.

2. Defer the entry of judgment for the purpose of allowing the parties time to consider any claim for pre-judgment interest.

3. Within 3 days of today’s date, the plaintiff is to notify the defendant and my Associate, in the form of written submissions not exceeding 5 pages, of any claim for interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW). In the event no such notification is received, judgment will be entered for the sum stipulated in order (1) above.

4. Upon receipt of the plaintiff’s notification in order (3) above, the defendant has 3 days to notify the plaintiff and my Associate as to whether there is agreement concerning pre-judgment interest calculation. In the event agreement can be reached, judgment is to be entered inclusive of interest.

5. In the event the plaintiff’s pre-judgment interest calculation is opposed, the defendant is to notify the plaintiff and my Associate of their objection, in the form of written submissions not exceeding 5 pages. Questions of pre-judgment interest will be determined on the papers, and judgment will be entered following any such determination.

6. The Defendant pay the Plaintiff’s costs as agreed or assessed on the ordinary basis.

7. A party seeking to vary the costs order in order (6) above (“the costs applicant”) is to file a notice of motion pursuant to r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW).

8. In addition to order (7) above, the costs applicant is to:

1. notify my Associate of the filing of the notice of motion, and to seek a return date from chambers; and

2. file and serve written submissions on costs not exceeding 7 pages in length in support within 7 days of the filing of their notice of motion.

9. Upon receipt of the costs applicant’s submissions, the costs respondent has 7 days to file and serve written submissions not exceeding 7 pages in length in support of such opposition.

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Decision last updated: 09 April 2024