Foong v Ghaly; Foong v McLellan

[2017] NSWDC 303

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Foong v Ghaly; Foong v McLellan [2017] NSWDC 303
Hearing dates:	11, 12, 13, 14 September 2017 and 24 October 2017
Date of orders:	03 November 2017
Decision date:	03 November 2017
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Judgment for the plaintiff in proceedings 2014/115934 for $1,250. (2) Judgment for the plaintiff in proceedings 2014/200147 for $1,250. (3) Costs reserved with liberty to apply.
Catchwords:	TORT – personal injury – assessment of damages – plaintiff claims $20 million for injuries following two motor vehicle accidents – substantial attack on plaintiff’s credit as to whether the plaintiff suffered any injury at all – tender of surveillance and social media records inconsistent with plaintiff’s account of disabilities and activities – whether social media posts by a party may be admitted into evidence - nominal awards for past economic loss and out of pocket expenses
Legislation Cited:	Civil Liability Act 2002 (NSW), s 31 Evidence Act 2005 (NSW), s 135 Motor Accidents Compensation Act 1999 (NSW), s 141B Property, Stock and Business Agents Act 2002 (NSW), ss 195 and 198 Uniform Civil Procedure Rules 2005 (NSW), rr 31.10 and 42.35
Cases Cited:	Abou Antoun v Chidiac [2017] NSWDC 208 Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443 Cachia v Hanes [1994] HCA 14 Davies v Nilsen [2016] VSC 557 Miller v Galderisi [2009] NSWCA 353 Palavi v Queensland Newspapers Pty Ltd (2012) 84 NSWLR 523 Palavi v Radio 2UE Pty Ltd [2011] NSWCA 264 Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB)
Texts Cited:	Sir Richard Eggleston QC, “Evidence, proof and probability” (1st Ed., Weidenfeld and Nicolson, London, 1978)
Category:	Principal judgment
Parties:	Plaintiff: Yena Foong Defendant (in 2014/115934): Osama Wadea Ghaly Defendant (in 2014/200147): Diane Frances McLellan
Representation:	Counsel: Defendants: Mr W Fitzsimmons   Solicitors: Defendants: Moray & Agnew
File Number(s):	2014/115934; 2014/200147
Publication restriction:	None

Judgment

1. The plaintiff brings proceedings for damages arising out of two motor vehicle accidents occurring on 2 March and 2 September 2011 for physical and psychiatric injuries. The plaintiff, who acts for herself, seeks damages in the sum of $20,665,550 for both cases “all type [sic] of costs courts [sic] legal costs (past and future)” (plaintiff’s submissions, paragraph 1).

2. Breach of duty in relation to each of the accidents is admitted and a claim of contributory negligence was abandoned during the hearing.

3. The plaintiff fails to reach the threshold for non-economic loss (although this has not prevented her from claiming $3 million for what she described in her submissions as “brain injury”).

4. The issues for determination are the plaintiff’s entitlements to past and future economic loss, home care and out-of-pocket expenses.

5. The basis of the economic loss claim is, as plaintiff sets out in paragraph 4 of her submissions, that she has been self-employed for over 20 years. She describes herself as “a hard working person” with transferable skills if the motor accidents had not happened to her. She says that she could work as a self-employed general sales manager, although acknowledging that she had lost her real estate licence in the circumstances set out below. She also claims for loss of a chance in relation to an investment property she was forced to sell.

6. The basis of the home care claim is the plaintiff’s asserted inability to perform many household tasks.

7. The plaintiff also makes a claim for a wide range of out of pocket expenses and legal expenses in relation to work performed by her former solicitor.

The plaintiff’s background

8. The plaintiff, who is currently 58 years old, was born in Vietnam and as a result of the war in that country went to live in New Zealand in 1979 with her family. She came to Australia in 1996. She learnt English at school, although her first language is Cantonese; she also speaks and reads Mandarin and Vietnamese.

9. She had a normal childhood and education in New Zealand. She obtained work in sales and completed a strata management licence, following which she obtained a franchising business online through the Williams Angliss Institute through a Melbourne technical college. She obtained employment at Century 21 Real Estate Agency. Her real estate work history goes back to approximately 1995 when she was working for Harcourts Real Estate Wellington. The plaintiff married in 1987 and gave birth to three children in the course of the marriage, all of whom are now adults.

10. In about 2009, after commencing work for Century 21, the plaintiff was investigated with respect to trust account discrepancies arising from the sale of a property earlier that year. At this stage the plaintiff was already in financial difficulty, having been made bankrupt apparently as a result of unrelated financial activities involving her husband.

11. On 11 May 2010 the plaintiff fell down a flight of stairs at a hotel while attending a work function. This caused her to consult her general practitioner later that same day and to complain of significant disabilities in relation to her left shoulder. She consulted Dr Matthew Sherlock, an orthopaedic surgeon, who considered she had significant pathology to the injured shoulder which required surgery in that she suffered from complete tears of the supraspinatus and subscapularis with medial biceps instability. There were also problems with the non-injured shoulder of a degenerative nature. She did not have that surgery and continued to work full time.

The first accident

12. The plaintiff suffered her first motor vehicle accident on 2 March 2011. The defendant’s vehicle turned right across the path of the plaintiff’s vehicle at an intersection in the city. There was an impact of some significance. The plaintiff’s son, who was also in the vehicle, was injured.

13. The plaintiff had been on her way to the Local Court to meet her solicitor in relation to some of her ongoing legal proceedings, and did not stop except to exchange particulars. When she arrived at court, her solicitor told her to return to the scene of the accident:

“The accident - now I'm talking about the accident. In 2011, 2 March, around 8.45, I was on the way to Local Court to claim for my commission because I work very hard for that property and I deserve my commission and I was taking my son on the way to UTS as well. And I go straight on the second lane and the other driver on the other side, westerly side, mine is on the easterly side on the second lane. He turn into right and hit on my right-hand side, driver's side. He according to my - the DVD, actually the arrow was red. Once it turned green never turned - never ever - once it green and then red, cannot turn any more. He has to wait for another route, but he didn't wait. He just turn on the red into me.

And then after the accident, he immediately flee away and then let me alone to slowly - I think it makes sense that I slowly move my car to the left-hand side because I don't want to block any people. It's on the peak time at the time. And I - and then because at the same time my solicitor waiting for me in Local Court, I didn't think - I couldn't think of anything because at that time I, I got injured my head. I lost a few minutes memory. I couldn't think and then my left - my right shoulder hit my - hit the door and then bouncing to my - hit my head as well and then bouncing to hit my the left side on the chair so I - on that time, I really didn't care about my health much because I was thinking of the - my solicitor just waiting for me and I went to the Local Court. I told him that I just had accident, I cannot think and he said, "You just go back. Whatever you want to do, you need to do it, go back to do it."

So I went - on the way back the police call me because I leave a note to say that my car cannot drive, just have accident, so he call me and I said, "Yes, I'm on the way back." And then after that I - on the same day I go to the - the - my GP in Chatswood with my son to report the accident because I - I was - we were very unwell at that time and I report the accident. And I still wanted to work. I carry on to work but in the end my - I couldn't copy with any more so I stop around beginning of June, beginning of June and then I - that's I, I don't want to stop there and then sit in the house do nothing because I'm not that type of person, so I say, I better do something.” (T 31)

14. The plaintiff went later that day to her general practitioner (see Exhibit 2 page 18) which records the entry:

“No head injury, no LOC [loss of consciousness], wants all to be recorded.”

15. The plaintiff was cross-examined about this information being recorded:

“Q. Page 18. You will see down the bottom, "2 March 2011". Do you see that?

A. (No verbal reply)

HER HONOUR

Q. And you saw VP, that's what it says, Dr Putica, did you say?

A. Putica.

FITZSIMMONS

Q. See down the bottom, Mrs Foong, right at the last entry.

A. By--

Q. "2 March 2011". Do you see that?

A. Yes.

Q. See that? You can see it?

A. Yes.

Q. You'll see it says, "Stated MVA today. Hit by other car from side." Do you see that?

A. (No verbal reply)

Q. Mrs Foong, can you see where I'm reading, or not?

A. Which ‑ it's on 2 March?

Q. Yes.

HER HONOUR

Q. See, look, it says "2 March", down the bottom of the page, "Stated MVA today."

A. Yeah, I see, yeah.

Q.

"Hit by other car from side. Plaintiff is driver. Stated seatbelt on. Police on situ. Walking after. No head injury, no LOC. Wants all to be recorded. Complained of left post back aches, left neck aches."

Nothing about your head.

A. I think I did told them that I got ‑ hit the head.

Q. All right, then--

A. I don't know--

Q. --a week later you go and see the doctor and you get two referrals.

A. (No verbal reply)

FITZSIMMONS

Q. But you see, Mrs Foong, it specifically said, "No head injury"? Mrs Foong, are you looking at 2 March or have you gone somewhere else?

HER HONOUR

Q. Mrs Foong, look at this page. Look, if you can't look at this page I'll take it out of my volume and I'll give it to you. Now, look, Mrs Foong--

A. Yeah.

Q. --you have to pay attention.

A. The ‑ 18.

Q. Look ‑ no, Mrs Foong.

A. Yeah.

Q. I'm going to give you this document. This is not good, Mrs Foong, you need to help me out here. Now, look, here's the page from my entry. See where I put the yellow Post‑it note? All right, now, I want you to read out aloud the entry for 2 March. Read it out aloud to the Court.

A. I stated, "MVA today, hit by other car from side."

Q. Keep going.

A. "P ..(not transcribable).. is driver, states seatbelt on, police on" ‑ S-I-T-U, I don't know what is it, "Working after, no head injury, no LOC. Wants all to be recorded." See--

Q. You said there was no head injury, didn't you?

A. I don't know, I, I don't ‑ but see here--

FITZSIMMONS

Q. Mrs Foong, just please don't go looking at other things.

A. Okay, okay.

Q You accept that you told your GP on the day of the accident, the very same day, that you did not suffer a head injury and you did not suffer any loss of consciousness?

A. I think I forgot to tell her, I think.

Q. How could you forget, Mrs Foong? How could you forget on the very day of the accident, when you're going to the doctor ‑ how could you forget that you suffered a head injury?

A. I forgot to tell her.

Q. I beg your pardon?

A. I forgot to tell her--

HER HONOUR

Q. That's not--

A. --but anyway--

Q. Mrs Foong, that's not an answer.

A. Right, it's okay, okay.

Q. You were asked how could you have forgotten, if you went to the doctor on the day of the accident, that you had hurt your head? How could you have forgotten that? You tell me. I want to understand your case but you're not helping me.

A. Yeah.

Q. Well, what's your answer?

A. (No verbal reply)

Q. You have to answer, Mrs Foong. It's a long silence.

A. Sorry, cause I, I really couldn't remember how I, I, I told her, and I thought I have told her, but according to here, they said I, I, I, I didn't tell ‑ I didn't her, so--

FITZSIMMONS

Q. Not only did you not tell her, I suggest, I suggest the doctor asked, "Did you suffer any head injury?" And you said, "No, I didn't."

A. I see, I--

Q. And you were asked, "Did you lose consciousness at all?" And you said, "No, I didn't." Isn't that the case?

A. I did tell the, the defendant's mother I lost unconscious ‑ lost memory, she knows, but--

Q. Mrs Foong, have you still got page 18 there?

A. Yes, I still have, but the ‑ I meant according to her she, she didn't record it.” (T 112-115)

16. The plaintiff attended a record of interview on 11 March 2011, nine days after the accident, in respect of trust account anomalies and her failure to account to a vendor for the sum of $80,000 which had been held by the plaintiff on trust. The plaintiff appeared to have been well enough to be able to participate in this interview and to make an undertaking to look into the short fall in the trust account.

17. The plaintiff returned to see her general practitioner on 2 April 2011, shortly after this interview. Her general practitioner again recorded that there was “no head injury” and that she had been conscious and able to walk after the accident.

18. The plaintiff’s focus thereafter in her complaints to the general practitioner related to the injury to her left shoulder (which occurred in her fall in May 2010). She underwent CT scanning of her neck and brain which confirmed no abnormalities (Exhibit 2, page 15; see the doctor’s notes of 2 September 2011).

19. The plaintiff was cross-examined about the injuries she reported to her general practitioner:

“Q. Can you go up to 2 April? Do you see that? 2011?

A. Yeah, 2, 2 April.

Q. 2011.

A. It's page ‑ on the same page, yes.

Q. Same page.

A. Yeah.

Q. See further up?

A. Mm.

Q. And this says, "Initial Consult and Exam." In other words, examination. See that?

A. Yes.

Q. It says, "On 2 March 2011 was involved in MVA," that's motor vehicle accident, "was driver, sit on driver's side, son in the car with her. At the time of accident no head injury."

A. Mm.

Q. See that?

A. Yes.

Q. So again, a month later, when you're back with ‑ and seeing a different doctor altogether--

A. Who was this doctor, then? The--

Q. DJ is the initials. You told that doctor, "No head injury. Was conscious and able to walk." See that? That's what you told the doctor, wasn't it? You didn't suffer a head injury?

A. I know according to them they, they, they say it is, but I did tell the defendant's mother, I said that I hit--

Q. And again you didn't tell the doctor that you suffered any loss of consciousness. Correct?

A. According to them here, saying no.

Q. You've just made that up, haven't you, since?

A. No, I, I don't make it up, but I don't know why he's ‑ I, I don't know. I said--

Q. Can you offer to her Honour any explanation why on two separate occasions you didn't tell your own treating doctor that you had suffered a head injury and that you had suffered loss of consciousness? Can you explain that?

A. I ‑ my--

Q. Why you wouldn't have told the doctor?

A. I explanation ‑ the fact is I, I did the ‑ it did hit my head and I did loss unconscious for a few minutes, and I, I have told the defendant's mother. You can ask the defendant's mother to come and tell you.

Q. No, I'm not talking about the defendant's mother, I'm asking about the doctors who you were getting medical advice from. Do you understand? Do you have any explanation--

A. Yes, but I don't know ‑ I can't ‑ I, I don't know why she's write it, I ‑ write it, I, I can't explain, but I, I did, I did tell the defendant, the mother.” (T 115-116)

20. The plaintiff gave the following evidence concerning her condition in the weeks after the accident:

“Q. Now, what do you say was your condition in the weeks after the accident?

A. (No verbal reply)

Q. Mrs Foong, I've asked you a question. Did you hear me?

A. I'm sorry, you asked me a question. What did you say?

Q. What do you say your condition was like in the weeks after the accident? Were you able to do much?

A. Those - I detail things I--

Q. Beg your pardon?

A. I, I ‑ no, I, I didn't ‑ I couldn't do much, no.

Q. Were you able to do anything much at all?

A. I, I tried to do the, the daily things, but I never do ‑ be able to do the, the ‑ those scratching things, the domestic housing ‑ house things, and I tried to occupy myself, to go to do some study, but I ‑ to me if the, the defendant paid me the treatment I should ‑ I, I should treat my, my health.

Q. Didn't you have a trip to Melbourne in the month after the accident?

A. Yes, I did, I, I did got to the Melbourne for my, for my, for my graduation for ‑ what is it for? For my franchising diploma.” (T 116)

The plaintiff’s second accident

21. On 26 September 2011, the plaintiff was travelling as a bus passenger, returning from seeing a Dr Susan Lawrence concerning the injuries she suffered in the 2 March 2011 accident. At the intersection of Pacific Highway and Ellis Street, Chatswood, the bus had to swerve violently because of the defendant’s vehicle and the plaintiff and other passengers were thrown backwards and forwards. Ambulances were called to assist the passengers and the plaintiff was taken to Royal North Shore Hospital, where she was released after a few hours.

Surveillance and social media evidence

22. The plaintiff was the subject of extensive surveillance footage. Much of it shows her energetically wheeling a suitcase of books around the university faculty where she was studying.

23. The plaintiff was shown a photograph of herself at a tram station carrying luggage. She agreed that she had attended her graduation in Melbourne (T 117) but said it was “the only trip I made after the car accident” (T 117). She denied that this trip was for a holiday, but was asked at T 117-118:

“Q. In any event, this is only the month after the accident. You had a holiday down in Victoria.

A. No, it's not holiday. I just went to attend my graduation. After the accident, I never have any holiday.

Q. Do you see it says the entries, someone asked you, "What are you doing in Victoria?" Do you see that?

A. Which one?

Q. Page 329.

HER HONOUR

Q. Century Twentyone Uniforms. The man from Century Twentyone Uniforms said, "What are you doing in Victoria?"

A. Yeah, yes.

FITZSIMMONS

Q. You said, "Back already, I love Sydney."

A. Yeah.

Q. And he ‑ and someone else asked you, "Did you have a nice holiday?"

A. But it was not holiday.

Q. And you said, "Yes, thank you, Amy. See you next Friday. Time pass quick."

A. Yes, because I try to be active and I try to be ‑ look, look good and because on that time I was in the ‑ what is it? The Toastmasters, I ‑ it was in Toastmasters, yes.

Q. So I asked you a question before, "In the weeks after this accident did you do much?" And you said, "No." No, but you went to Melbourne.

A. No, I didn't do much. Don't, don't ‑ this trip is for attending the ‑ attending the graduation.

Q. What sort of condition do you say you were in then?

A. I was not good, but like, like today also I was not good, but I just do it because of - it's necessary to force myself to do it. I'm, I'm not ‑ I'm not well.” (T 117-118)

24. The above was one of several extracts from the plaintiff’s social media accounts which were tendered. According to her posts on social media, her social and personal life appears to have continued unabated, as did her work and social activities. The plaintiff’s Facebook page also includes references to various properties that she was seeking to sell, including a large commercial estate.

25. The plaintiff complained that the material on her Facebook page and other social media material was irrelevant and should not be tendered. I interpreted this as an application for exclusion of this material pursuant to s 135 Evidence Act 2005 (NSW). I permitted the tender of this material for the following reasons.

26. Tender of social media records in many different kinds of civil and criminal proceedings is now routine. There are no special provisions for the tender of such material, nor is there any need to warn an opponent (as is the case in relation to surveillance material, created by the opposing party and served prior to trial, as occurred here: see r 31.10 Uniform Civil Procedure Rules 2005 (NSW) as to its tender and use).

24. The high water mark, in terms of evidentiary weight, for social media records is to be found in Palavi v Queensland Newspapers Pty Ltd (2012) 84 NSWLR 523 and Palavi v Radio 2UE Pty Ltd [2011] NSWCA 264, where a plaintiff who failed to produce (and was in fact held to have destroyed) social media-related material in the form of photographs allegedly sent as text messages on her phone had her claims for defamation struck out completely.

25. Social media entries are commonly tendered in personal injury proceedings in relation to claims for damages where a plaintiff is asserted not to have suffered the kind of ongoing disabilities that are claimed to have been suffered. It is a valuable source of material, in that it has been created by the party against whom the material is tendered.

26. It would seem disingenuous for a party who has created such entries to object to their tender, although common sense suggests that some social media entries may well exaggerate or indeed fantasize about the lifestyle of the person who posts the material. These are, however, matters which can be raised in evidence by the party whose posts are challenged (see, for example, Davies v Nilsen [2016] VSC 557 at [35]).

27. My research has not been able to discover any judgments where social media pages have been excluded in evidence in personal injury proceedings under s 135 or for any other reason. To the contrary, entries on LinkedIn and Instagram (Abou Antoun v Chidiac [2017] NSWDC 208), and the ubiquitous Facebook, are increasingly commonly tendered without objection in personal injury proceedings in this court. If there are rulings to the contrary in other courts (in relation to tort claims generally), these are not publicly available. There would need to be significant reasons for excluding material prepared by a party to litigation which directly contradicted, or indeed gave the lie to, sworn testimony in proceedings for damages for tortious wrongdoing. As I have noted after considering this evidence, the facts of this case indicate the reason why there would need to be compelling reasons for the exclusion of such evidence.

28. Accordingly, the material in question was admitted into evidence.

29. After tender of this material was permitted, the plaintiff was asked (at T 118):

“Q. You went out to functions, didn't you?

A. Function, I ‑ sometimes I, I feel, I feel the ‑ too bored, because I normally go functions before the car accident, so I, I ‑ now I don't go much, I did go occasions.

Q. Have a look at page 331. See that?

A. Yeah.

Q. Went out to a fundraising night.

A. Yeah, but I sit down only.

Q. 7 May.

A. I just sit there and she ask me to take a photo, I just smile like this, the photo ‑ to take a photo. Now I also, if you ‑ I just make a face.” (T 118)

33. The plaintiff was also challenged about whether she was working during this time:

“Q. You were working all through this time, weren't you?

A. No, I was not working.

Q. Mrs Foong, that's just a lie, isn't it? To say you weren't working?

A. The ‑ sorry ‑ yes, I was working, sorry, yeah.

Q. Yes.

A. Yes.

Q. Have a look at page 332. Got that one? See that? Do you see 14 May 2011? "What do you think of the advertisement?" This is from you:

"A white elephant needing a little touching up. We have had problems getting this house ready for inspection. Battle scars are evident in the entrance foyer and to a lesser extent in the family room. Otherwise there is not much wrong with this place."

Do you see that?

A. Yes.

Q. May 14, "For sale, $9 million. 40 classrooms, commercial building." Do you see that?

A. Yes.

Q. You're working all the way through this time, weren't you?

A. Yes, I working - yes.

Q. Why did you say to her Honour a moment ago you weren't working?

A. I, I didn't work up to the, the beginning of June 2011.

Q. I just asked you during this period of time you were working and you said, "No," but then you then, having seen these, you accept you were working?

A. Because the, the date I, I, I look at the day, I was working. Yeah, I was working during the day, during the time.

Q. You were selling, obviously, big commercial real estate properties, is that right?

A. Yes, during that time.

Q. This was during the period of time when you were under investigation by Fair Trading, correct?

A. I'm not sure. I, I think so because I'm confused with those dates. I think so.

Q. You continued to go to other functions to, didn't you?

A. Yes because I, I want to try to, to forget the, the car accidents. I try to hopefully get back my, my memory, my, my focus.” (T 118-119)

34. The plaintiff was further asked about attending cocktail parties and other social activities with friends:

“Q. Page 334, please. This is still only in the months after the accident. 334 there's an entry down the bottom from Amy Him Young(?). Who's that by the way? Is she a friend or a business person or what?

A. I know her through the - what is it--

HER HONOUR

Q. We know you know her. Who is she?

A. Who is she? I'm not sure because I, I--

Q. What do you mean you don't know? She's following you on Facebook and describing you as a friend.

A. I, I know her--

Q. 334, "Tina, are you coming to my cocktail party Jazz on Bourke on 3 June. It's for a good cause and will be lots of fun. Bring friends."

A. I don't think I go there. I can't remember. I don't think I go there but she - I, I don't know her personally. I know her through Toastmasters. More than that, private life, I'm not sure. I don't know. That's - we're friend. I really don't know the personal life much, sorry.

FITZSIMMONS

Q. You just said you don't think you went to that event, that's not true is it?

A. I can't--

Q. Have a look up the top of page 334:

"Hey Anna, great that you are coming to the event on Friday night. Is your friend coming too or just one person? Faye and Ron will be there."

You've said, "She is not coming," that is obviously your friend. Do you see that?

A. I can't remember that, that time.

HER HONOUR

Q. Was that another trip to Melbourne?

A. No, It was in Sydney. It's in Sydney.” (T 119-120)

35. The plaintiff was not only undertaking further qualifications as an auctioneer in order to either advance or change her career direction, but she was successful in them. On 16 June 2011 the plaintiff stated on social media that she had completed the property auction course that day and would soon be qualified as a property auctioneer. On 24 June 2011 the plaintiff posted that she had received confirmation she was an accredited auctioneer, noting that she would be the first Asian auctioneer, which was a considerable achievement (see page 338 of Exhibit 2).

36. The plaintiff was asked about obtaining her auctioneer’s licence:

“Q. You were out pursuing your auctioneer's licence weren't you?

A. I do a lot of - sort, sort of - a lot of different type of things. I, I stop doing that only my health stopped me. Even now I'm very suffering.

HER HONOUR

Q. I'll take that as a yes? You agree that you were pursuing a auctioneer's licence, that's right isn't it?

A. Yes, yes, yeah, I did.

FITZSIMMONS

Q. Can I take you to page 335?

A. Yes.

Q. You see 16 June 2011, "Just finished the property auction courses today. Do you believe I'm going to be the property auctioneer?"

A. Yes.

Q. That's far from giving up work, is it or not being able to work. Do you accept that?

A. Yeah because I hope my, my health getting better. I don't hope--

Q. I beg your pardon?

A. Because I hope, I hope my health getting better that's why I, I want to move forward.

Q. 24 June, by this stage you've given up work according to the evidence you gave to her Honour. Go to 24 June on page 338. Have you got page 338?

A. 338. Yes.

Q. "Just received a confirmation that I am an accredited auctioneer. Do you believe I'm the first Asian woman auctioneer, ha." Do you see that?

A. Yes.

Q. Yet, you're suggesting by this stage you've given up work? That's just patently untrue, isn't it?

A. That's the, the - get the, the auctioneer licence. I'm not unable to work. My health - I can, I can say anything but my health I - doesn't allow me to work.

Q. You can say anything even if it's untrue?

A. No, it's not correct. It's not correct.

Q. What was involved in your getting your auctioneer's licence?

A. Only doing the, the, the course. It's open, open book course.

Q. What's involved? Do you have to attend lectures or courses?

A. Just like seminar, I think. This is--

Q. I beg your pardon?

A. Like, seminar, like, seminar like that.

Q. A seminar?

A. Yes, it's a easy than a, than a course. It's easy because I don't want just to sit there, do nothing. I want to do something, so.

Q. Then you have to do some sort of exam?

A. No, no exams just ask questions and answer the question on open books.

Q. The fact is you are pursuing here, aren't you--

A. I pursued everything, sorry.

Q. Please let me finish. You are pursuing further career opportunities, advancing your career by getting your auctioneer's licence, correct?

A. That's correct but my health stopped me. ” (T 120-122)

37. It was put to the plaintiff that the problem about her working as an auctioneer was not her health but the loss of her real estate licence:

“Q. Do you need your real estate licence to act as an auctioneer?

A. Yes, you do. You do.

Q. You can't operate as an auctioneer whilst you haven't got your real estate licence?

A. That's correct, yes.

Q. This was around the time when the proceedings were being taken or the Fair Trading were taking their proceedings against you, correct?

A. Yes.

Q. You were pursuing the auctioneer's licence but ultimately you couldn't work as an auctioneer because you had your real estate licence taken from you, correct?

A. Yes, that's correct but I, I do that because I, I was hoping I keep, keep my licence and--

Q. You were hoping to keep your licence so you could continue working as a real estate agent and indeed as an auctioneer, is that right?

A. When my health permit me to do so, yes. When the, the - my health permit me to do so.

Q. You were pursuing these things this time because your health permitted you to do it, didn't you?

A. I forced myself to do it like today. I forced myself to do it. I'm, I'm, I'm not feeling well but because I force myself to, to do it. The--

Q. What do you say was stopping you from working as a real estate agent at this time?

A. Sorry?

Q. If it wasn't being struck off as a real estate agent--

A. Yeah.

Q. --what was it that was stopping you from working as a real estate agent, physically from a health perspective? What was the problem?

A. If what? If, if the, the licence not get struck?

Q. Yes, you're saying that you not working didn't have anything to do with losing your licence. It was because of your health that you couldn't work?

A. That's correct, yes.

Q. What was it, in terms of your health, that stopped you from working?

A. Because of my, my shoulder sore and my back sore and also sometimes my memory is not that clear and my - even now my, my whole body's sore.” (T 122-123)

38. The plaintiff had other difficulties which would have prevented her career in real estate from progressing. After a separate interview by Fair Trading of the plaintiff’s son (Keen Joi Foong) on 21 June 2011, he contradicted her statements that he had signed an exclusive agency agreement and denied that the document in question bore his signature. The plaintiff was given a Notice to Show Cause under s 195 Property, Stock and Business Agents Act 2002 (NSW) as to why disciplinary action should not be taken and findings were made by the Department of Fair Trading that on 4 April 2010 the sum of $80,000 had been transferred for “renovations” by the plaintiff. The plaintiff had sought to argue that this was renovation work done on the purchaser’s property (see Exhibit 2, pages 102-105), but this was not accepted, and on 19 September 2011, Fair Trading issued a Notice of Determination to take Disciplinary Action under s 198 of the Act. The plaintiff was declared a disqualified person for the purposes of the Act for a period of five years to take effect from early October 2011.

39. While these events were occurring, the plaintiff suffered her second accident on 26 September 2011 while riding on a bus on the Pacific Highway. The plaintiff claims she was thrown forwards towards the front seat and hit the back of the seat, and that her shoulders hit the back of the chair as she was thrown forward. An ambulance attended and took the plaintiff to the Royal North Shore Hospital where she was treated and released shortly thereafter.

40. Within two days of this accident, the plaintiff was making representations to the Department of Fair Trading to have her licence returned. The Department of Fair Trading did not accept the plaintiff’s submissions, although she warned them of the consequences:

“You disqualify my license, you will take full responsible (sic) for loss of my future income, reputation, and effect the ability to get any type of license from any organisations including the Government.”

41. This letter, which was written shortly after the second accident, sheets home loss of the plaintiff’s real estate licence and business to the actions of the Department of Fair Trading rather than to injuries suffered in the motor vehicle and bus accidents which are the subject of these proceedings.

42. On 3 September 2012 the plaintiff appeared before this Court in its criminal jurisdiction in a severity appeal from a sentence by a Local Court Magistrate of 15 months’ imprisonment to be served by way of home detention. That order was confirmed on appeal, although a non-parole period of 9 months was imposed by way of variation (Exhibit 2, page 186).

43. Judge Zahra was told by Mr Healey, who appeared for the plaintiff:

“[The plaintiff] has the future intention to repay [the amount of $80,000 which is the subject of the charge] from wages earned as and when she is able, but currently is reliant on Centrelink benefits and has no means to commence repayment until she is in paid employment.” (Exhibit 2, page 173)

44. The Court was told that the plaintiff “clearly has a very strong work ethic” and that subsequent to her disqualification, she had been studying accounting and conveyancing at Ultimo TAFE (Exhibit 2, Transcript 177).

45. While Mr Healey of counsel noted that it was most unlikely she could ever be registered as an accountant or conveyancer, he told the court the plaintiff wanted to avoid a custodial sentence and that she was “skilling herself” and could go into customer service or retrain as an interpreter to earn money to repay what was stolen (Exhibit 2, pages 177-178).

46. In other words, the Court was told in the clearest possible terms that the plaintiff was a woman with a “very strong work ethic” (a statement Mr Healey used several times in his submissions; this example is drawn from Exhibit 2, page 178), not someone struggling with injuries from two road accidents. Repeated submission were made to the court that the plaintiff was “getting back into the workforce” (Exhibit 2, page 179) so that she could raise the money to pay the $80,000.

47. All of this was taken into account by Judge Zahra, who was never informed that the plaintiff had suffered any accident at all, let alone accidents which could result in her being unable to work at all, although the plaintiff had in fact already lodged accident claim forms for each of the accidents and was under surveillance.

48. The surveillance tapes at various periods during 2012 confirm the picture painted to the court of the plaintiff as a busy and active woman who was successfully pursuing tertiary education.

The medical evidence

49. The medical evidence paints a consistent picture of the plaintiff as a person who claims substantial and serious injury which is unsupported by investigative reports and described by the practitioners who have seen her as being largely feigned.

Professor Aggarwal

50. The Court has been assisted by a series of treating reports from Associate Professor Aggarwal from 18 January 2012 onwards (see Exhibit 2, page 225). His exhaustive and sympathetic attempts to find out what was wrong with the plaintiff over a three-year period are instructive.

51. Professor Aggarwal’s initial description of the plaintiff’s account of her injuries and ongoing disabilities, in his report of 18 January 2012, painted a gloomy picture of her injuries and inability to work. She did not inform Professor Aggarwal that she had been prevented from working due to her conduct in relation to the operation of a trust account and was in fact engaged in tertiary study, instead telling him that she had had to cease work in June 2011 as a consequence of changes in memory and concentration “to a point where she had to cease work in June 2011” (paragraph 2, Exhibit 2, page 225).

52. This was complicated by the second accident in September 2011, the plaintiff told Professor Aggarwal, as she has “continued to notice a reduction in her memory and concentration” after that time and had had a number of episodes where she “has lost awareness of her surroundings for a short period of time, especially when she has been driving and she stops in the middle of the road”. This is said to be the reason why she had ceased driving. This was in fact also untruthful, in that the plaintiff had ceased driving for entirely unrelated reasons, as is set out below.

53. Professor Aggarwal took these complaints seriously. He initially considered she might be experiencing post-traumatic epilepsy and arranged for an EEG. The normal results of her EEG contradicted this. However, he gave her the benefit of the doubt. Given the plaintiff’s “significant cognitive symptoms”, he next sought the performance of an MRI at the insurer’s expense, considering that this may explain the drop in her level of cognition after her September accident. She had an MRI scan at her own expense, the results of which were normal.

54. Next, Professor Aggarwal suggested a neuropsychological assessment (report 30 March 2012, Exhibit 2, page 230). By 1 June 2012 Professor Aggarwal was recommending that she should “try to reintegrate back into the workforce” (Exhibit 2, page 231) and was puzzled by her symptoms but still searching for a medical answer.

55. In his report of 1 May 2015, Professor Aggarwal noted very poor scores on mental tests were continuing, and considered she had some signs of Parkinsonism. However, by 22 December 2015, after a formal neuropsychological assessment was performed, Professor Aggarwal was satisfied that the plaintiff was consciously performing badly throughout the test and that she was “looking for avenues for compensation” which he considered were unlikely to be fruitful. This renowned specialist had spent nearly three years endeavouring to determine the plaintiff’s problems. He reluctantly, but politely, came to the conclusion that she was exaggerating her symptoms for the purposes of obtaining compensation. I set out his report in full:

“Mrs Foong came back for review.

She feels there has been a slight improvement in her mobility since commencing Madopar at a dose of 100/25 ½ tablet twice per day. She is tolerating this medication well without side effects. She also feels that the numbness of her right hand has been reasonably well controlled.

Mrs Foong has had a formal neuropsychological assessment. I have not received the formal report yet, but a verbal report indicated that her effort was not consistent during the assessment and it seemed that she was consciously performing badly throughout the test. There was no evidence to suggest any organic brain injury and it was felt that her performance was deliberately poor.

On examination, Mrs Foong’s gait remains slow but steady. She still had reduced arm swing on the right. Her tone was still increased in the upper limbs, and she had ongoing bradykinesia of find finger movements. She had no tremor at rest. Upper limb nerve conduction studies showed that her right carpal tunnel syndrome has improved. EMG studies showed no evidence of denervation and upper limb somatosensory evoked potentials were normal

Motor Nerve Conduction:

Nerve and Site Lat ms Amp mV Segment L.D.ms Dist mm C.V. m/s

Median nerve

Wrist.R	4.0	3.7	APB-Wrist
Wrist.L	3.5	4.1	APB-Wrist

Mrs Foong still has some organic signs of Parkinsonism and I have suggested she increase her dose of Madopar slowly to 100/25 1 tablet 3 times per day to optimise the benefit of this medication.

I have advised her regarding the results of the neuropsychological assessment, indicating that she has no evidence of organic brain injury and that it was felt that her perceived cognitive impairment is subjective and with no objective signs. She still seems to be looking for avenues for compensation and I have indicated to her that it is unlikely that these avenues will be fruitful to her.

I would like to review her again in another 3 months time.”

[Emphasis added]

56. If there had been anything wrong with the plaintiff in terms of a head injury or brain damage, this exhaustive series of tests would have discovered it. Professor Aggarwal’s final report confirms that the plaintiff was shamming her symptoms in the hope of compensation.

Dr Bodel

57. The plaintiff was also reviewed by Dr James Bodel on 27 August 2012 in relation to her physical injuries.

58. Once again, the history the plaintiff provided to Dr Bodel was inconsistent with the contemporaneous evidence of what was in fact occurring. She told Dr Bodel that shortly after returning to work she was struggling and had to go off work for a few weeks, finding that by June 2011 she was unable to continue and had to close the business down. She did not mention the reasons that she was in difficulties working as a real estate agent, or about her studies or her other activities.

59. She demonstrated to Dr Bodel a full range of shoulder movements on the right hand side, but only slightly reduced movement on the left, as well as reporting a restricted range of movement in the back. As the 2012 surveillance video shows, this was exaggerated.

60. Dr Bodel’s report uncritically accepted the plaintiff’s evidence. However, the facts given to Dr Bodel are totally at variance with the plaintiff’s very busy life of study and attending proceedings in court. The value of his report must be materially undermined by these differences, and accordingly I can place no weight upon it.

Dr Robert Hampshire and Ms Natalie Windsor

61. Dr Hampshire examined the plaintiff on 30 October 2013. His report contains a number of inconsistencies. His observations as to the plaintiff’s level of depression is inconsistent with his own observations as well as with the objective facts of the plaintiff’s real reason for ceasing work as a real estate agent.

62. As is the case with Dr Bodel, the misleading and untruthful statements made to him by the plaintiff, which were relied upon by him uncritically, must materially undermine any finding of fact that he has made.

63. Dr Hampshire’s assessment of whole person impairment is inconsistent with the psychiatric evidence relied upon by the defendants, including the reports of Dr Selwyn-Smith, Professor Mattick and the MAS Assessor Dr Friend.

64. Similarly, Ms Natalie Windsor’s report concerning the treatment she provided as a psychologist were based on an uncritical acceptance of the plaintiff’s untruthful evidence concerning her disabilities and inability to work, and is of no assistance.

The defendants' medico-legal evidence

65. The defendants' reports confirm the observations of Professor Aggarwal.

Dr Michael Lim

66. Dr Lim’s first report of 29 February 2012, concerning an assessment on 14 February 2012, notes the plaintiff as complaining of the following symptoms:

1. The left side of her body is constantly numb;

2. Her head is numb;

3. She cannot hear properly out of her left ear;

4. She suffers headaches;

5. She suffers from left shoulder pain and cannot lift her left arm;

6. She cannot lift her right arm since the second motor vehicle accident;

7. Her lower back is sore;

8. Her left knee is sore.

67. She told Dr Lim that she stopped working after the accident “because she could not remember to do things” (p 6).

68. On physical examination, the plaintiff displayed to Dr Lim about half the normal range of movements but he noted that her neck movements were quite normal during the interview and she was able to rotate her cervical spine at other times.

69. Dr Lim makes the following observations at p 9 of his report:

“10.g Consistency of presentation

The claimant presented as manipulative. For instance, she was keen for me to believe that she sustained a head injury in the subject accident, even supplying me with a note (see below) after the assessment that alleged direct injury to her head, contrary to what she told me during the interview and also contrary to her medical records (see section 12). She failed to mention that she had been experiencing left parietal headache prior to the accident (see section 12).

She also expressed conviction that the proposed operation to her left should was attributable to the subject accident even though she acknowledged that her surgeon had proposed the operation prior to the accident. She stated that she did not believe the left shoulder condition prior to the accident was serious enough to warrant surgery but in the medical records (entry of 30 August 2010) she stated she could not afford surgery. She provided me with scant details of her employment prior to the accident. The medical records indicated that she had reduced her work hours following the fall on 11 May 2010. She told me that she did not work after the subject accident. However, the medical records did not indicate that was the case. Dr Aggarwal noted in his report of 18 January 2012 that the claimant ceased work for 2 weeks. She then resumed work and continued working until June 2011.”

70. The note referred to by Dr Lim read as follows:

“Dear Dr Lim,

I forgot to tell you that the 2/3/11 accident. I just remember.

I have hit my back head. Please shade the diagram for me. Thank you.

Yours faithfully,

Yena Foong”

71. Dr Lim was of the view that the plaintiff’s motor vehicle accident resulted only in mild soft tissue injuries to her neck, upper back and left chest and that no other injury was attributable to the accident of 2 March 2011 or 26 September 2011. He noted her medical investigation results showed tears to the rotator cuff, but he points out that the report of Dr Matthew Sherlock of 3 August 2010 showed an acute or chronic tear of the left shoulder prior to the accident, and that Dr Sherlock’s recommendation for surgery included the likelihood of further surgery for the plaintiff’s right shoulder (p 12), as well as her injured left shoulder.

72. Dr Lim provided a second report dated 25 February 2013. He noted by way of update that she had not undergone any operation or suffered any further accident and she was unable to explain what treatment, if any, she had received from Dr Aggrawal:

“8. Additional remarks

The claimant complained incessantly about the ruinous effect of the subject accident:

-   She stopped having sex because of the 2 MVAs. Her husband now has “very bad health” because she stopped giving him sex.

-   She stated that the accident caused “a lot of unhappiness and family problems”.

-   She alleged ongoing work incapacity attributable to the accident. She complained she has not received any money from the insurer. She stated that a claims officer from Allianz told her on 24 November 2012 that the company would pay her but she still has not received any money.

-   She stated that her children relied on her for money. I pointed out that her sons are adults. She replied that 2 of her sons are still students.

I told the claimant that I found no evidence in the relevant documents that she injured her head in the subject accident and I was not able to attribute her alleged memory problems to the accident. Her reply was “what about the lump on my head?” She pointed to the left parietal region to indicate the location of the lump. (In a handwritten note left at my office after the previous assessment, the claimant alleged she struck the back of her head in the subject accident. A blow to the back of the head would not cause a lump in the left parietal region of her scalp).”

73. He made the following additional observations:

“12.01 Diagnosis

After re-examining the claimant and reviewing additional clinical material, I reaffirm the opinions I previously expressed that:

-   The subject accident resulted in mild soft tissue injuries to the claimant’s neck (cervical spine) and upper back (thoracic spine) and left chest.

-   There was no other injury attributable to the accident. In particular, the accident did not result in injury to the claimant’s head, left shoulder or left knee.

12.02 Prognosis

After re-examining the claimant and reviewing additional clinical material, I reaffirm the opinions I previously expressed that:

-   The injuries caused by the accident were mild in nature and would have resolved over a matter of a few weeks or a few months.

-   The injuries did not affect the claimant’s life expectancy.

12.03 Are the reported disabilities consistent with the injuries caused by the subject accident?

No.

I believe the claimant has genuine physical disabilities arising from her left shoulder and left knee. Such disabilities were pre-existing at the time of the subject accident. There was no evidence that the accident resulted in further injury (or aggravation) to her left shoulder or left knee.

The claimant’s presentation suggested the presence of underlying psychiatric disorders, possibly somatoform disorder, depression and personality disorder. A psychiatric assessment is recommended.”

74. He had the following to say about her proposed treatment:

“12.04 Treatment

After re-examining the claimant and reviewing additional clinical material, I reaffirm the opinions I previously expressed that:

-   The chiropractic treatments and doctor consultations within 3 months of the accident were reasonable and necessary under the circumstances.

-   The use of prescribed medication up to 3 months of the accident was reasonable and necessary under the circumstances.

-   No other treatment was necessary in relation to the subject accident.”

75. He estimated that impairment of her past earning capacity was for two weeks only (p 8 of the report).

76. Dr Lim provided a third report dated 8 July 2016, confirm that the first and second motor vehicle accidents resulted in mild injuries only which had fully recovered and that her ongoing symptoms were “most probably feigned” (p 1) and that he adhered to the same view despite the most recently provided material, including his observation that her work capacity had been affected only for a period of two weeks.

77. Dr Lim’s long and careful reports are of great assistance in the determination of the plaintiff’s problems. She has genuine physical disabilities which were pre-existing at the time of the accident, and there is no evidence of the injured she incurred in either of the accidents resulted in any further injury or aggravation to her shoulders or knees. He concludes, and I agree, that what the plaintiff suffers from is an underlying psychiatric disorder or disorders, which he suggested were potentially somatoform disorder, depression and personality disorder. These were unrelated to the accident.

Dr Cummine

78. Dr Cummine provided two reports dated 1 May 2014 and 4 August 2016. He noted that she had pre-existing shoulder injuries as a result of her fall in a hotel on 11 May 2010 and that she also suffered significant degenerative change in her right shoulder. She also had osteoarthritis of the right knee. None of these related to or were exacerbated by the injuries she suffered in the accidents the subject of this claim (p 9).

79. He also notes that between these two accidents she suffered physical assault on 15 May 2011 and that this resulted in neck pain, bilateral shoulder pain (the left worse than the right), as well as back pain.

80. Dr Cummine did not consider her complaints and the disabilities described as reasonable and considered there was no direct relationship between her complaints and the respective accident. He considered that she suffered from underlying pre-existing degenerative disease which, combined with abnormal illness behaviour, had become part of a chronic pain syndrome unrelated to the accident. He confirmed this view in his report of 4 August 2016, noting a series of reports from Professor Mattick, Associate Professor Spira and Dr Dalton, with all of which he was in agreement.

Associate Professor Spira

81. Associate Professor Spira provided two reports. In the first of these, dated 14 August 2014, he noted her diffused complaints of pain and injury, ranging from visual disturbance (“I just cannot see”) to continuous symptoms of numbness and pain over most of her body, as well as memory difficulties, hearing problems and depression. She had fallen asleep in the waiting room and told him that she had to rest repeatedly because she becomes severely fatigued, but he observed that she displayed what he would describe as remarkable stamina in that she maintained her concentration throughout an almost four-hour consultation without difficulty despite the complexity of her issues. He noted her gait as to walked as being “quite bizarre with her taking tiny steps and shuffling although there were no manifestations of an extrapyramidal disorder”. She said that this was to prevent knee pain. She recoiled in pain from pressure on her back and neck which “barely indented subcutaneous fat” (p 8). He concluded that there were clear features of embellishment of disability and of complaints about severe pain where there was no pain at all. He considered it was highly unlikely that any of her disabilities (if she had any) resulted from the motor vehicle accident.

82. Associate Professor Spira was also of the opinion that she did not have any mental state impairment. He considered she was “an unreliable witness to her level of symptomatology” (p 9).

83. In his report of 4 July 2016, Associate Professor Spira reviewed four folders of additional documents which he considered confirmed his view as well as demonstrating that “there has been a broad consensus in relation to the nature of Mrs Foong’s complaints and their non-organic nature”, notably her “intentionally poor performance” in a test carried out by the neuropsychology unit at Royal Prince Alfred Hospital on 17 December 2015.

Dr Dalton

84. Dr Dalton provided two reports dated 1 October 2014 and 29 June 2016. He concluded:

“This lady presents with Abnormal Illness Behaviour, non-organic clinical signs and a number of inconsistencies were clearly demonstrated during the assessment. There is considerable psychological and functional overlay and the reported disabilities and complaints are disproportionate to injuries sustained in the subject accident and objective clinical findings, notwithstanding the fact that this lady does have confirmed degenerative pathologies affecting both shoulders.”

85. His follow-up report confirmed this view and he noted the consensus of opinions by other medical practitioners that there was “significant exaggeration and embellishment of her psychological symptoms and cognitive dysfunction” (p 2) which confirmed his earlier diagnosis.

Dr Newlyn

86. Dr Newlyn had the advantage of seeing the plaintiff comparatively early, namely on 9 February 2012. He provides a long and comprehensive review of relevant medical records for the period up until that time. He considered that she did not have any psychiatric disorder.

87. In his report of 25 July 2016, Dr Newlyn noted that he had been provided with extensive reports from other medical practitioners, including Dr Lim, Professor Mattick, Dr Cummine, Dr Selwyn-Smith, Associate Professor Spira and Dr Dalton, as well as the MAS Assessor Mr Cameron.

88. He was also aware of the contents of the report of Natalie Windsor, psychologist, who considered that the accident had left her with significant psychological trauma resulting in post-traumatic stress disorder. His opinion remained the same.

Other medical reports

89. The defendants also relied upon the MAS assessments and the reports of Professor Mattick and Dr Selwyn-Smith. These reports were consistent with the reports set out above.

The plaintiff’s claim for damages

90. The plaintiff, in a document headed “Statement of Order” sets out her quantification of the claim for $20,665,550, being the sum set out in this document plus an additional $270 for taxi expenses:

Items no.:	Particulars:	Amount of order:
1	Potential income from year 2012 to 2027 retirement age; and	$15,780,438
2	Head injuries, and Psychology injuries; and	$3,000,000
3	A replace unit in North Sydney; and	$1,000,000
4	Gratuitous care – commercial paid care (future) to age 88; and	$300,000
5	Treatment expenses (past and future) to age 88; and	$200,000
6	Mobilise, and employ people to lift up heavy objects, and marriage separation, and quality of life, and quality of food to age 88.	$150,000
Total compensation = Twenty million, and four hundred, and thirty thousand, and four hundred and thirty eight dollars; and	$20,430,438
7	Plus: Legal costs, court costs, printing costs, storage costs, moving costs, accountant costs and the other costs up to today 5 October 2017	$234,842
Item 8: Seek court order = $20,665,280 [Note: An additional $270 for taxi expenses is claimed.]

91. The document in question does not comply with the general manner in which such claims are made, but in the course of oral submissions, it has been explained to me as follows:

1. Non-economic loss – The plaintiff claims $3,000,000 for head injuries and “psychology” injuries, despite falling below the threshold for non-economic loss.

2. Past and future economic loss – The plaintiff has provided calculations totalling $15,780,438 for past and future economic loss which in fact goes back to 2010, the year prior to the accident.

3. Other economic loss – The plaintiff claims the cost of a replacement unit in North Sydney ($1,000,000), as a “loss of a chance”.

4. Home care – The plaintiff makes a claim for commercial paid care to 88 years of age ($300,000) and an additional sum of $150,000 to “[m]obilise, and employ people to lift up heavy objects, and marriage separation, and quality of life, and quality of food to age 88”.

5. Other expenses – The plaintiff also claims legal costs, court costs, printing costs, storage costs, moving costs, accountant costs and other expenses up to 5 October 2017 totalling $234,842.

6. Additional expenditure – The plaintiff also claims taxi expenses of $270.

92. The above calculation also includes claims for out-of-pocket expenses of $11,064, legal costs of $116,873.18 but do not appear to include future medical expenses. I was informed that Schedule E, which refers to a claim for $200,000 included future out-of-pocket expenses, although the basis for this claim was unclear.

93. The defendants' calculation may be noted as amounting to reimbursement of past s 83 expenses which for the first accident are $5,302.24 and for the second accident $550. The large size of the expenses for the first accident relates to the cost of investigations since the date of the accident as opposed to treatment at the time. The difference between the past out-of-pocket expenses estimate of the defendants and the plaintiff’s estimate is that the plaintiff has claimed for all HIC or medical expenses since the accident without nominating which of these relates to the accident in question.

94. A great deal of the evidence in this case related to whether the plaintiff’s claim of being in consistent unbearable pain should be accepted by the court, an issue which the defendants resolve by referring to the plaintiff’s lack of credit.

The plaintiff’s credit

95. Mr Fitzsimmons draws my attention to Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) at 72, a helpful summary of credit issues which is often referred to in personal injury proceedings. He particularly draws my attention to the text by Sir Richard Eggleston QC, “Evidence, proof and probability” (1st Ed., Weidenfeld and Nicolson, London, 1978), which identifies the following five tests:

“(1) The consistency of the witness’s evidence with what is agreed, or clearly shown by other evidence, to have occurred;

(2) The internal consistency of the witness’s evidence;

(3) Consistency with what the witness has said or deposed on other occasions;

(4) The credit of the witness in relation to matters not germane to the litigation;

(5) The demeanour of the witness.”

96. The evidence of the plaintiff’s lack of credibility is, to use Mr Fitzsimmons’ language (at paragraph 91 of his submissions), overwhelming. Any claim that she lost the ability to work in general, let alone work as a real estate agent, must be patently untrue for the following reasons:

1. The evidence is inconsistent with the plaintiff’s posts on social media concerning her work success and studies. She remained actively engaged in her profession up to the last possible time before her licence was not renewed after June 2011.

2. The plaintiff continued to attempt to renew her licence and to appeal the decisions of the Department of Fair Trading and the Local Magistrate.

3. The plaintiff told Judge Zahra through her counsel in September 2012 that while it was unlikely that she would obtain work as a real estate agent or accountant because of her conviction, she would be doing her best to be gainfully employed if given the opportunity, and this was the reason for seeking that the custodial sentence to be served by way of home detention should be overturned.

4. The plaintiff was able to complete a very busy study program including some extra studies to finish the course quickly and, as the surveillance tape shows, she was able to walk vigorously.

5. The plaintiff’s exaggerated claims of having suffered significant injuries in both accidents, which include alleged head injuries and consequential loss of consciousness, are inconsistent with contemporaneous medical reports which show her either not making any such complaint at all, or, when she complained to Professor Aggarwal, giving normal results when tested. All three specialists who tested the plaintiff’s mental functioning concluded the plaintiff was deliberately feigning her mental impairment to a significant degree, including (reluctantly, and only after all other tests were exhausted) Professor Aggarwal.

97. The plaintiff’s demeanour in the witness box should also be taken into account. She only reluctantly conceded (at T 220) that the real reason for her inability to pursue her real estate career was her disqualification and criminal conviction in the middle of 2011, before the second accident occurred (T 220) and when she was shown the video surveillance, she attempted to argue with the very clear picture of her walking rapidly and vigorously in high heels, asserting it was “misleading” (T 218). She continued to assert that she could not lift heavy items, despite being shown surveillance of having lifted a trolley bag of books on 20 March 2014 (T 220-221 and 283-285).

98. In the course of the proceedings, it transpired that the plaintiff has been appointed as a justice of the peace, with her appointment expiring on 31 December 2017. The plaintiff should not have continued to hold her appointment as a justice of the peace in light of the findings of the Department of Fair Trading and her subsequent criminal conviction. The plaintiff conceded she was aware of her obligation to disclose adverse findings. Although this is only a small point, it is an indication of the plaintiff’s willingness to mislead others.

Conclusions concerning the plaintiff’s injuries and disabilities

99. All of the medical evidence points to the plaintiff suffering mild soft tissue injuries in each of the accidents from which she has recovered within weeks at best, and in circumstances where she has been able to go about her normal duties almost without interruption. There is no evidence of her having days off work and the contemporaneous medical reports are inconsistent with her later claims of significant injury.

100. As to the plaintiff’s claim of psychiatric injury, I note the requirements of s 31 Civil Liability Act 2002 (NSW). The plaintiff has not suffered any psychiatric condition or associated mental or intellectual disorder as a consequence of either of the accidents.

101. The plaintiff called evidence of a “character” nature from persons who had known her as a real estate agent, such as Ms Fay Petru. Ms Petru readily acknowledged that she knew nothing about the circumstances in which the plaintiff ceased work as a real estate agent, saying that the plaintiff had never given her reason for doing so (T 326).

Non-economic loss

102. The plaintiff is not entitled to any non-economic loss.

Economic loss

103. The plaintiff sought to call evidence from an accountant as to the economic loss she had suffered. Mr Kenneth Leo attended court and was cross-examined. He told the Court in a frank and straightforward fashion that he had never prepared an economic loss report for the Court before. He had never heard of the Code of Conduct and had not taken it into account when preparing his report. In those circumstances, his report, which consisted simply of ascertaining company profit plus personal income to ascertain net income, was inadmissible.

104. These reports were not only inadmissible, but were based on a completely false premise. The plaintiff could not claim from the defendants for economic loss (past or future) in relation to her real estate company activities in circumstances where she had been prosecuted for an offence of financial dishonesty and been relieved of her real estate agent’s licence for a lengthy period which has still not yet expired. The only basis upon which the plaintiff could bring a claim for economic loss would be for work in the general workforce following her second accident (the evidence in relation to the first accident pointing to her continuing to work full-time as a real estate agent until her licence was withdrawn in June).

105. Even the very financial records produced by the plaintiff as being “income tax returns” are uncertain. These income tax returns have never been submitted to the Australian Tax Office for assessment, as the plaintiff herself conceded (at T 233). They appear to have been prepared solely for the benefit of these proceedings. As such, they are not business records.

106. Finally, I note that on 12 September 2016 the plaintiff completed a further claim for a bus accident on 22 March 2016. In the claim form she asserted that she was a full-time university student and that as a consequence of the accident she reduced her study load to part-time. Whatever impact this third accident may have upon the plaintiff’s earning capacity, her statements in relation to this third accident indicate that she was capable of undertaking full-time study following the accidents, which is inconsistent with her claim that she is unable to perform any activity of an income-bearing nature. In addition, it is clear that the plaintiff is taking steps to re-qualify with the intention of engaging in remunerative employment in the future.

107. I am thus not satisfied that the plaintiff has suffered anything other than an amount representing one or two days’ absence from work, at most. Dr Lim suggested an absence of up to two weeks might be reasonable. Precise determination of this sum is difficult given the uncertainty of the plaintiff’s financial record-keeping.

108. There should be no award for future economic loss, as I am satisfied that the plaintiff suffered no compensable injury beyond soft tissue injuries, which resolved within days or weeks of the accident in question.

109. I am prepared to award a modest cushion for past economic loss of $1,000 for each of the two accidents, to allow for the two weeks of absence which Dr Lim thought would be appropriate. That will be the total of the plaintiff’s claim for past and future economic loss.

Past and future domestic assistance

110. Section 141B Motor Accidents Compensation Act 1999 (NSW) provides:

“141B Maximum Amount of Damages for Provision of Certain Attendant Care Services

(1) Compensation, included in an award of damages, for the value of attendant care services:

(a) which have been or are to be provided by another person to the person in whose favour the award is made, and

(b) for which the person in whose favour the award is made has not paid and is not liable to pay,

must not exceed the amount determined in accordance with this section.

(2) No compensation is to be awarded if the services would have been provided to the person even if the person had not been injured by the motor accident.

(3) Further, no compensation is to be awarded unless the services are provided (or to be provided):

(a) for at least 6 hours per week, and

(b) for a period of at least 6 consecutive months.

(4) If the services provided or to be provided are not less than 40 hours per week, the amount of compensation must not exceed:

(a) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for:

(i) in respect of the whole or any part of a quarter occurring between the date of the injury in relation to which the award is made and the date of the award, being a quarter for which such an amount has been estimated by the Australian Statistician and is, at the date of the award, available to the court making the award--that quarter, or

(ii) in respect of the whole or any part of any other quarter--the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and is, at that date, available to the court making the award, or

(b) if the Australian Statistician fails or ceases to estimate the amount referred to in paragraph (a), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed.

(5) If the services provided or to be provided are less than 40 hours per week, the amount of compensation must not exceed the amount calculated at an hourly rate of one-fortieth of the amount determined in accordance with subsection (4) (a) or (b), as the case requires.

(6) Unless evidence is adduced to the contrary, the court is to assume that the value of the services is the maximum amount determined under subsection (4) or (5), as the case requires.

(7) Except as provided by this section, nothing in this section affects any other law relating to the value of attendant care services.”

111. The Court must be satisfied that the plaintiff has been provided with domestic assistance of at least 6 hours per week for a continuous period of 6 months.

112. The plaintiff has adduced no such evidence; to the contrary, she appears to have been providing domestic and other assistance to her son Genn Foong who was injured in the first accident (T 157-161; see also Exhibit 4). Nor is it the case that the plaintiff suffers from any relevant disability requiring domestic assistance. Not only is there no evidence from any occupational therapist (Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443), but the plaintiff gave no evidence of any intention to engage commercial assistance in the future (Miller v Galderisi [2009] NSWCA 353).

113. Accordingly, there should be no award for past or future domestic assistance.

Past and future treatment expenses

114. Although I invited the parties to reach agreement as to what past treatment expenses there would be, the plaintiff has not done so. She refers in her lengthy (and unpaginated) submissions to such matters as “travel costs claim”.

115. I am satisfied that the plaintiff is not entitled to any future out-of-pocket expenses, but I am prepared to award a cushion of $250 for each accident in question for medication of a non-prescription nature for pain relief.

116. The defendants asked to be given credit for a total of $5,852.24 for past out-of-pocket expenses. To avoid the possibility of a medical disbursement being attributed to the wrong claim, I have simply excluded the sums agreed to by the defendants from the amounts awarded.

Concluding remarks

117. I thank Mr Fitzsimmons for his careful preparation and presentation and the fairness with which he has responded to and assisted Mrs Foong in the preparation of her case.

118. Mrs Foong is in many ways a tragic figure, in that after a number of years in the workforce she got into financial difficulties which impacted on her career, as well as causing her personal difficulties. However, that does not entitle her to claim damages to which she is not otherwise entitled.

119. As a litigant in person, Mrs Foong is not entitled to legal costs. She is entitled to disbursements of the kind that litigants in person may claim: see Cachia v Hanes [1994] HCA 14.

120. While the smallness of the size of the claim would otherwise attract the costs penalties under r 42.35 Uniform Civil Procedure Rules 2005 (NSW), her son (a passenger in her vehicle) was injured in the first motor vehicle accident. He was awarded substantial damages in a settlement. I am satisfied that it was appropriate to commence both proceedings in the same court.

121. Mrs Foong sought payment of legal costs totalling $116,873.18 for her former solicitors’ costs. I have, however, reserved the issue of costs, at the request of counsel for the defendants.

Orders

1. Judgment for the plaintiff in proceedings 2014/115934 for $1,250.

2. Judgment for the plaintiff in proceedings 2014/200147 for $1,250.

3. Costs reserved with liberty to apply.

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Amendments

03 November 2017 - Decision field renumbered.

03 November 2017 - [38] The word "was" changed to "bore".

03 November 2017 - [45] The word "conveyance" changed to "conveyancer".

03 November 2017 - [121] The phrase "counsel for the plaintiff" changed to "counsel for the defendants".

03 November 2017 - [63], the heading above [65], [65], [93] and [104] The word "defendant" changed to "defendants".

13 November 2017 - [8] The plaintiff's age is corrected to 58.

Decision last updated: 13 November 2017