Foong v Ghaly; Foong v McLellan

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…