Foong v Ghaly; Foong v McLellan

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District Court


New South Wales

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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…

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Details
Case
[2017] NSWDC 303
Decision Date

CaseChat Overview and Summary

Foong brought claims against Ghaly and McLellan, both of whom were involved in separate motor vehicle accidents with the plaintiff. The plaintiff claimed substantial damages for the injuries sustained in the two accidents, seeking $20 million in total. The nature of the dispute centred on the extent of the plaintiff's injuries and the credibility of their claims, given that the evidence presented, including surveillance and social media records, contradicted the plaintiff's account of their disabilities and activities.

The court had to decide several legal issues, including whether the plaintiff had indeed suffered any injuries and, if so, the extent of those injuries. The court also needed to determine the admissibility of social media posts as evidence and whether they could be used to challenge the plaintiff's credibility. Another key issue was the assessment of damages, specifically considering the past economic loss and out-of-pocket expenses claimed by the plaintiff.

The court found that the plaintiff's claims were significantly undermined by the evidence tendered, which showed that the plaintiff engaged in activities and led a lifestyle inconsistent with their account of severe and ongoing injuries. The court concluded that the plaintiff's claims were grossly exaggerated and not credible. The court admitted the social media posts as evidence, finding them relevant to the plaintiff's credibility and the extent of their injuries. Consequently, the court awarded nominal damages of $1,250 for past economic loss and out-of-pocket expenses in each proceeding against the defendants.

The court reserved the issue of costs, allowing the plaintiff the liberty to apply for costs if necessary. The court's decision reflects a cautious approach to the assessment of damages, ensuring that the awards were commensurate with the evidence presented and the actual extent of the plaintiff's injuries.

Orders

Orders of the court

(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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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