Fung v Bossie Chau Pty Ltd t/a 278 Club, Chang & Hu

[2020] NSWDC 118

District Court

New South Wales

Medium Neutral Citation:

Fung v Bossie Chau Pty Ltd t/a 278 Club, Chang & Hu [2020] NSWDC 118

Hearing dates:

20, 21, 24, 25, 26, 27 February, 2, 3, 5 March 2020; Close of submissions 17 March 2020

Date of orders:

21 April 2020

Decision date:

21 April 2020

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Verdict and judgment for the plaintiff against each defendant in the sum of $154,857.85;

 

2. The defendants are to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;

 

3. The exhibits are to be retained with the Court file until the further order of the Court;

 

4. Liberty to apply on 7 days’ notice if further or other orders are required;

 5. I direct the Registrar to forward a copy of these reasons, together with copies of the transcript, MFI “11” comprising the list of transcript errata, and a copy of pages 112 to 148 of Exhibit “B”, to the Proper Officer at the Australian Taxation Office responsible for ensuring compliance with taxation obligations.

Catchwords:

TORTS – intentional harm – factual findings – plaintiff was the victim of assault, battery and wrongful deprivation of liberty committed whilst he was a customer in a brothel – rejection of defences claimed pursuant to s 5F, s 50, s 52 and s 53 of the Civil Liability Act 2002 (NSW); DAMAGES – assessment of claimed general, aggravated and exemplary damages

Legislation Cited:

Civil Liability Act 2002 (NSW), s 5F, s 50, Pt 7, s 52, s 53
Evidence Act 1995 (NSW), s 60, s 67
Summary Offences Act 1988 (NSW), s 15(3)
Uniform Civil Procedure Rules 2005 (NSW), r 31.10(1)

Cases Cited:

Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Browne v Dunn (1893) 6 R 67
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Jovanovski v Billbergia Pty Ltd [2011] NSWCA 135
Lamb v Cotogno [1987] HC 47; (1987) 164 CLR 1
Mason v Demasi [2009] NSWCA 227
MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
Penrith City Council v Parks [2004] NSWCA 201
Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118
Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204
Regina v Jeremiah Driscoll, (1841) Car & M 214; 174 ER 477
Rosniak v GIO [1997] 41 NSWLR 608
State of New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496
State of NSW v Gee (aka Michaels) [2002] NSWCA 326
State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536
Zavarinos v State of New South Wales [2004] NSWCA 320

Texts Cited:

Furzer Crestani Assessment Handbook, 2019
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 19 November 2002 at 6944

Category:

Principal judgment

Parties:

Chun Wai Fung (Plaintiff)
Bossie Chau Pty Ltd t/a 278 Club (First defendant)
Chao Chang (Second defendant)
Xiao Hu (Third defendant)

Representation:

Counsel:
Mr J de Greenlaw (Plaintiff)
Ms S Walsh (Defendants)

  Solicitors:
Chambers Russell Lawyers (Plaintiff)
Viney Law (Defendants)

File Number(s):

2018/382671

Publication restriction:

None

Judgment

Table of Contents

Nature of case	[1]
Factual background	[2] – [13]
Issues calling for determination	[14] – [16]
Polarised factual positions of the parties	[17] – [39]
Facts not in dispute and identification of facts in dispute	[40] – [76]
Issue 1 – Credibility and reliability of testimony	[77] – [178]
The evidence of Mr Chun Wai Fung, the plaintiff	[78] – [125]
The evidence of Mr Cheuk Yin Fung	[126] – [134]
The evidence of Mr Seung Man Ha	[135] – [152]
General approach to evidence of Mr Chang and Ms Hu	[153] – [162]
The evidence of Mr Chao Chang, the second defendant	[163] – [166]
The evidence of Ms Xiao Hu, the third defendant	[167] – [178]
Issue 2 – Findings on disputed matters of fact	[179] – [290]
(1) December 2017 ban on plaintiff attending Ginza brothel	[181] – [191]
(2) Claim of ban from 278 Cleveland Street brothel	[192] – [197]
(3) Plaintiff’s attendances at the 278 Cleveland Street brothel	[198] – [207]
(4) Plaintiff’s transaction for provision of sexual services	[208] – [212]
(5) Arrival of Mr Chang and Ms Hu at 278 Cleveland Street	[213] – [216]
(6) Reasons for Mr Chang’s entry into Room 11	[217] – [229]
(7) Physical contact between Mr Chang, Ms Hu and plaintiff	[230] – [263]
(8) Confiscation of plaintiff’s mobile telephone	[264] – [268]
(9) Plaintiff’s departure from the premises	[269] – [272]
(10) Plaintiff’s attendance at RPAH and hospital records	[273] – [280]
(11) Statements obtained from plaintiff by police	[281] – [283]
(12) Guilty pleas - Mr Chang and Ms Hu to common assault	[284] – [288]
(13) Victim impact statements by plaintiff	[289] – [290]
Issue 3 – Wrongful tortious conduct by defendants	[291] – [296]
Issue 4 – Vicarious liability of Bossie Chau Pty Ltd	[297]
Issue 5 – Claimed defence pursuant to s 5F of the CL Act	[298] – [310]
Issue 6 – Claimed defence pursuant to s 50 of the CL Act	[311] – [328]
Issue 7 – Claimed defence pursuant to s 52 of the CL Act	[329] – [335]
Issue 8 – Claimed defence pursuant to s 53 of the CL Act	[336] – [347]
Issue 9 – Assessment of damages	[348] – [407]
General and aggravated damages for non-economic loss	[351] – [369]
Exemplary damages	[370]
Past economic loss	[371] – [389]
Future economic loss	[390] – [396]
Future treatment expenses	[397] – [399]
Past out-of-pocket expenses	[400]
Interest on general damages	[401] – [406]
Disposition	[408]
Costs	[409]
Orders	[410]

Nature of case

1. The matter at issue in these proceedings is whether or not the plaintiff has proven his common law claim of having been brutally and unlawfully assaulted, battered and detained against his will, in aggravated and humiliating circumstances.

Factual background

2. Shortly after 2.40am on Tuesday 26 June 2018, the plaintiff, Mr Chun Wai Fung, who was then aged 23 years, was a customer at a brothel. There, he unexpectedly experienced fellatio interrupta whilst engaging in paid sexual activity with a female sex worker named Joy, a nom de bordel.

3. The plaintiff claims that interruption occurred without prior warning when the proprietors of the brothel unlocked and entered the room whilst the sex worker was fellating him. The ensuing circumstances involved a violent fracas, in which he was seriously injured, having been repeatedly punched, kicked, and subjected to intimidation and humiliation by the proprietors of the brothel.

4. The plaintiff claims those events involved a trespass to his person comprising an unlawful assault and battery, and the deprivation of his liberty during a period when he was detained. Accordingly, he claims common law damages including aggravated and exemplary damages from the defendants, the proprietors of the brothel.

5. The defendants have filed defences seeking to rely on s 5F, s 50, s 52 and s 53 of the Civil Liability Act 2002 (NSW) (“CL Act”). Section 52 and s 53 are within Pt 7 of that Act. Not all of those claimed defences were capable of being applied to the circumstances.

6. The brothel in question was referred to in the evidence as the 278 Club. In the police records which were tendered, it was also referred to as the Angel Inn: Exhibit “B”, p 285. The reference to the brothel being a club is an apparent misnomer as the premises were not a club and there was no club membership. The brothel is situated at 278 Cleveland Street, Surry Hills, NSW. It is one of two such establishments operated by the first defendant, Bossie Chau Pty Ltd, the second defendant, Mr Chao Chang, and the third defendant, Ms Xiao Hu. The second and third defendants are husband and wife. They are the guiding minds and operators of both of those brothel businesses.

7. In operating those businesses Mr Chang used the working name of Wilson, and Ms Hu used the working name of Yuki. The defendants operated another brothel, known as Ginza, located a short distance away, at 310 Cleveland Street, Surry Hills. Events which occurred at both of those brothels are relevant to these proceedings.

8. Ms Hu claimed the brothel was licensed: T367.37. Although brothels are not licensed as such, and although there is no legal requirement of good character as a pre-condition for persons to operate a brothel, subject to certain conditions being satisfied, the proprietorship of a brothel at which sex workers provide sexual services for payment, is an activity permitted by law: s 15(3) of the Summary Offences Act 1988 (NSW).

9. In this case, the characterisation of apparent legality became somewhat overshadowed by the demeaning, offhand, and disrespectful manner in which the commodification of those services, and the personification of the sex workers providing those services, was referred to in the evidence.

10. Some of the circumstances which led to the violent events in question are the subject of conflicting factual accounts which require a reasoned reconciliation on the balance of probabilities on an assessment of the available evidence. In final submissions it was common ground that the outcome of the proceedings was dependent upon the assessment of the credibility and reliability of the testimony of the respective witnesses: T576.38; T481.1 – T481.5.

11. In this case there were problematic issues of credibility and reliability of testimony concerning witnesses on both sides of the record. Some of those matters were of significance, whilst others were peripheral, and of no material significance. Those credit issues must be considered and determined at the outset as the findings on those matters form the basis for determining the multiple issues of fact that are in dispute in these proceedings.

12. These reasons for decision are published in an unredacted form in the public domain because they relate to litigation conducted in open court. The policy and practice of the Court, where practicable, is to publish its reasons for decision in determining civil cases.

13. In order to arrive at reasoned fact findings and determinations on relevant matters in dispute in the litigation, it has become necessary to make explicit reference to matters of a sexual nature as raised in the evidence. The parties are familiar with those matters. If potential non-party readers consider that such references may cause them offence, they should consider reading no further than this point.

Issues calling for determination

14. In addition to their pleaded factual denials, the defendants have claimed defences that respectively rely upon s 5F, s 50, s 52 and s 53 of the CL Act. The plaintiff disputes the factual basis and therefore the availability of those claimed defences. The resolution of those disputed matters stand to be resolved according to the assessment of the credibility and the reliability of testimony.

15. A review of the pleadings, the evidence, and the submissions of the parties, indicates that the material issues calling for determination in these proceedings are as follows:

1. Findings on the credibility and reliability of testimony. My findings on those matters appear between paragraphs [77] to [178] of these reasons;

2. Findings on a number of disputed matters of fact concerning the events leading to, during and following the fracas at the brothel, as those events involved the plaintiff. My findings on those matters appear between paragraphs [179] to [290] of these reasons;

3. Whether the plaintiff was intentionally wrongfully subjected to assault, battery, deprivation of liberty, and intentionally intimidated and humiliated by Mr Chang and Ms Hu. My findings on these issues appear between paragraphs [291] to [296] of these reasons;

4. Whether the first defendant, Bossie Chau Pty Ltd, should be held to be vicariously liable for the actions of Mr Chang and Ms Hu. My findings on this issue appear at paragraph [297] of these reasons;

5. Whether, within the meaning of s 5F of the CL Act, the assault, battery, and the deprivation of the plaintiff’s liberty, was as a result of the materialisation of an obvious risk of which the plaintiff must have been aware. My findings on this issue appear between paragraphs [298] to [310] of these reasons;

6. Whether, within the meaning of s 50 of the CL Act, the plaintiff’s capacity to exercise reasonable skill and care for his own safety was impaired by reason of self-induced intoxication so that the plaintiff should not be awarded any damages, or alternatively, should be awarded reduced damages on account of alleged contributory negligence on his part. My findings on this issue appear between paragraphs [311] to [328] of these reasons;

7. Whether, within the meaning of s 52 of the CL Act, the defendants were responding to the plaintiff’s unlawful conduct, and were acting either in their own self-defence, or in defence of the sex worker, Joy. My findings on this issue appear between paragraphs [329] to [335] of these reasons;

8. Whether, within the meaning of s 53 of the CL Act, exceptional circumstances have been shown to exist that would render it harsh and unjust to award damages to the plaintiff. My findings on this issue appear between paragraphs [336] to [347] of these reasons;

9. The assessment of the plaintiff’s entitlement to damages, including compensatory, aggravated and exemplary damages, as well as damages for non-economic loss, past and future economic loss, and past and future treatment expenses, and interest on damages. My findings on these issues appear between paragraphs [348] to [407] of these reasons.

16. Before addressing those issues and examining matters to do with the credibility and reliability of testimony, it is necessary to identify the polarised factual positions of the parties and to identify the material facts that are variously undisputed or disputed.

Polarised factual positions of the parties

17. The parties maintained polarised competing factual positions in the litigation.

18. The plaintiff claims that whilst he was at the defendants’ brothel at 278 Cleveland Street receiving consensual fellatio from Joy in Room 11, that activity was abruptly interrupted when Mr Chang and Ms Hu entered the room. The plaintiff claims that in those events he was assaulted, battered, and for a time, he was intimidated and humiliated in front of other brothel staff, and that for such time, he was deprived of his personal liberty.

19. The plaintiff claims this all occurred due to the physical actions of Mr Chang and Ms Hu, and by the effect of the juxtaposed position adopted by Mr Seung Man Ha, the brothel receptionist employed by the defendants. In that regard, Mr Ha had placed himself in a position effectively blocking the doorway to the room thereby effectively preventing the plaintiff from leaving the room.

20. In contrast, the defendants claim that they unlocked and opened the door to Room 11 because the sex worker referred to as Joy had been heard to cry out words to the effect: “No. Fuck off, get off me”, or variations thereof. The plaintiff disputes that the sex worker said anything along those lines.

21. That dispute will be considered in more detail at a later point in these reasons. The defendants claim that the reason why Mr Chang, Ms Hu and Mr Ha entered the room was in order to go to the assistance of that sex worker because the plaintiff was sexually assaulting her. The plaintiff disputes that allegation and he disputes that there was any such need for the door to Room 11 to be opened in the circumstances.

22. The defendants claim that prior to their entry into the room, contrary to house rules and brothel industry standards, the plaintiff had attempted to achieve unprotected penile-vaginal sexual intercourse with Joy, that is, without the use of a condom, in circumstances where, if that allegation was true, this would have amounted to a sexual assault upon her. The plaintiff disputed the allegation.

23. The defendants opened their case by specifically alleging that the plaintiff had, by his conduct, sexually assaulted Joy because, whilst not wearing a condom, he was attempting non-consensual penile-vaginal sexual intercourse with her. They claim that this was the reason why she had cried out in the manner claimed: T16.45 – T17.11.

24. The defendants’ case on this point, as opened, seemed somewhat confused. The opening address of counsel for the defendants, which must be presumed to be based on specific instructions from the defendants, identified the following factual basis for defending the proceedings:

“We say that the plaintiff was on top of Joy at the time of the entry to the room, and that there was no oral sex involved; and in any event, you'll hear evidence that to the best of the knowledge of Joy, who had only worked there for two days, did not consent to giving that particular service, which is removing a condom for oral sex.”

[T15.38 – T15.42]

[Emphasis added]

25. The parties to the agreement for sexual services and the terms of the particular sexual service that was agreed upon are matters that will be described in more detail at a later point in these reasons.

26. Ordinarily, on the basis of the opening remarks made on behalf of the defendants, as cited above, and having regard to the emphasised portion of those cited remarks, the clear implication was that if evidence was to be called in a case such as this concerning the knowledge of a named person involved in the events, namely Joy, she would be called to give direct evidence on such matters. That did not occur in this case.

27. The defendants’ case, as opened, was that the plaintiff was previously banned from the brothel in question because he had a reputation for removing condoms during sexual intercourse at the defendants’ Ginza brothel, and notwithstanding this, allegedly, knowing he was banned, he had nevertheless “gone back [to the defendants’ 278 Cleveland Street brothel] and again participated in attempting to remove his condom during sex”: T15.46.

28. At this point it is relevant to state that the defendants’ position as outlined in the preceding paragraph, was problematical when examined from a logical and chronological perspective. This is because at the time the plaintiff was banned from the defendants’ Ginza brothel, the defendants had not yet established their brothel at 278 Cleveland Street and there had been no contact or communication between the plaintiff and the defendants since the plaintiff was banned from attending the defendants’ Ginza brothel.

29. There was no evidence called to support the factual allegation that the plaintiff had been banned from the defendants’ brothel located at 278 Cleveland Street, and that notwithstanding a claim of a ban to that effect, he nevertheless returned there after having been banned.

30. At this point it is also appropriate to state that, for reasons that will be made plain, none of the factual allegations made on behalf of the defendants in the opening remarks as cited in the preceding paragraphs, were established by reliable or admissible evidence, either from Joy, who was not called to give evidence, or from any other defence witness.

31. The defendants claim that immediately after Mr Chang and Ms Hu entered Room 11 at the 278 Cleveland Street brothel, it was the plaintiff who allegedly started a violent altercation.

32. On the issue of the sequence and the manner in which that altercation occurred, the defence position was somewhat confused, as explained below.

33. At the time the plaintiff was cross-examined, which occurred in the presence of Mr Chang and Ms Hu, counsel for the defendants, presumably on instructions, suggested to the plaintiff that he was the aggressor in that he had initiated the physical altercation in Room 11 by moving towards Mr Chang, and pushing him on his shoulders with both hands outstretched, following which it was alleged that the plaintiff started throwing punches at Mr Chang, an assertion the plaintiff denied: T155.43 – T156.6.

25. The basis for that aspect of the cross-examination of the plaintiff was problematic, as in their respective evidence, neither Mr Chang, Ms Hu or Mr Ha supported an important aspect of that proposition which was put to the plaintiff as representing the defendants’ case: Browne v Dunn (1893) 6 R 67.

26. Mr Chang (at T535.34), Ms Hu (at T539.35 – T539.41) and Mr Ha (at T546.45), each stated, contrary to that proposition put to the plaintiff, that the plaintiff had initiated the altercation by moving towards Mr Chang with just one outstretched hand and arm, that is, to push Mr Chang away.

27. The difference in those two factual versions that emanated from the defence camp, whilst apparently perhaps minor on first glance, was in my view, significantly material, and it remained unexplained. This requires critical evaluation.

28. The defendants claim that the altercation only occurred because of a perceived need on the part of Mr Chang and Ms Hu to go to the defence of Joy, whom, it was alleged, had been sexually assaulted by the plaintiff. The defendants claim that in those circumstances, Mr Chang and Ms Hu had acted lawfully, in Joy’s defence, and also in their own self-defence. On that basis, the defendants claim that the plaintiff is not entitled to any damages in these proceedings. The plaintiff disputed key aspects of those factual assertions made by the defendants.

29. For reasons that will be made clear in my reasons for decision on particular issues that will be identified, I have not accepted the factual basis of the case sought to be made by the defendants. In arriving at that conclusion, I have preferred and accepted the plaintiff’s account of the events to the versions proffered by the witnesses called in the case for the defendants.

30. Before addressing the principal issues calling for determination as identified at paragraph [15] above, it is necessary to first identify relevant facts that are not in dispute, and to also identify the relevant areas of factual conflict.

Facts not in dispute and identification of facts in dispute

40. Reference was made in the evidence to the existence of an internet caller forum relating to what was referred to as Asian brothels operating in Sydney: T417.20. This was identified in the evidence of Mr Ha as a source for his background belief that, at the time of the events in question, the plaintiff was a receptionist at another Sydney brothel that operated in competition with the defendants’ brothels.

41. Before the events in question, since leaving school, the plaintiff had some considerable background familiarity and experience concerning brothels in Sydney. At various times he had managed two brothels owned by his mother and his stepfather at premises in Gladesville and in Marrickville. The Gladesville brothel, at 42 Buffalo Road, Gladesville, was known as the Infinity Bordello: Exhibit “B”, p 286. In addition to his work at those brothels, he had regularly frequented other brothels as a paying customer, on a random basis, on an average of about four times per month. For that activity, he used the nom de bordel of Charles.

42. In 2017, on two separate occasions, some weeks apart, the plaintiff had paid for sexual services at the defendants’ Ginza brothel at 310 Cleveland Street.

43. In late December 2017, the plaintiff attended at that brothel for a third time but on that occasion he was prevented from obtaining such services. This was because Mr Chang, who had become aware of the plaintiff’s presence in the waiting area, informed the plaintiff that he was blacklisted and henceforth banned from further attendance at that brothel. The plaintiff did not offer much protest at that time. He then left the premises. The defendants’ underlying reasons for that ban were disputed by the plaintiff.

44. In these proceedings, the defendants’ first stated reason for the blacklist ban on the plaintiff was that his image had been copied from earlier CCTV footage taken at the Ginza premises and kept in a file of images of persons who were prohibited from entry to the Ginza brothel. The plaintiff’s image was said to be in that file and was said to have been annotated with his identifying nom de bordel, Charles, along with a further notation to the effect that he had a reputation at the Ginza brothel for allegedly removing, or trying to remove, his condom during sexual intercourse with sex workers, an activity which was contrary to house rules.

45. The plaintiff disputed that he had ever conducted himself in that way. The defendants called no reliable evidence to substantiate that underlying allegation. The allegation, as raised in these proceedings, was plainly based on inadmissible hearsay for which the required notice in writing had not been given: s 67 of the Evidence Act 1995 (NSW).

46. The defendants’ second stated reason for banning the plaintiff from the Ginza brothel was the assertion, also denied by the plaintiff, and not made good within the array of factual evidence called by the defendants in their case, that the plaintiff had previously falsely stated to sex workers at the Ginza brothel that their sexual interactions with customers in those premises had been the subject of CCTV recordings. The apparent implication or inference to be drawn from that suggestion was, or appeared to be that, pursuant to his association with a competing brothel, the plaintiff might have been attempting to lure away or dissuade sex workers from working at the Ginza brothel on that account. Nothing of significance turns on those allegations, which remain unsubstantiated.

47. Against those background circumstances, on the evening of 25 June 2018, in company with several friends, the plaintiff had attended a social outing at a gaming venue in Haymarket to play the video game known as “League of Legends”. After some time, as a group, they decided to seek paid sexual services at a brothel. The plaintiff was accustomed to using his pocket money given to him by his parents in addition to his own earnings, to spend significant sums of money, of the order of two to three thousand dollars, for a night of entertainment with his friends in the manner described.

48. In that regard, the group attended at a brothel that was not operated by the defendants. There, all members of the group other than the plaintiff were able to engage the services of sex workers. The plaintiff paid for those sexual services to be provided to his friends. However, at that time the plaintiff found that he was unable to obtain similar sexual services for himself at that brothel.

49. This was because after the plaintiff’s companions had made their arrangements to choose and engage with sex workers, the remaining sex workers at that brothel were unwilling and therefore unavailable for similar engagement by the plaintiff. The reason given for this was because those sex workers had previously worked at a brothel which the plaintiff had managed for his family. He therefore left the premises and sought out other establishments, which he referred to as shops. In the course of those events, after some internet searching on his mobile device, he eventually attended at the defendants’ brothel at 278 Cleveland Street.

50. Some weeks earlier, the plaintiff had previously visited that brothel. He said that on that particular occasion the receptionist on duty at that time had allowed him to “view” some of the sex workers who were on the premises at that time. However, on that occasion, he left without engaging in any of the sexual services that were available on that occasion.

51. In the early hours of 26 June 2018, the plaintiff made telephone contact with the 278 Cleveland Street brothel and spoke to the receptionist to ascertain whether sex workers were available there at that time. He was told that sex workers were available for engagement at that time so he drove there, arriving at about 2.25am. On entering those premises he spoke to the receptionist, Mr Ha.

52. The plaintiff’s account of that discussion was that Mr Ha had allowed him to view the available sex workers, and he did so. The plaintiff said that after further discussion with Mr Ha, an agreement was reached whereby the plaintiff would pay an agreed sum of $240 to spend time with Joy, who would provide him with agreed sexual services. He then paid Mr Ha the agreed amount of $240 for what was identified as being for the agreed Diamond Service, which was to be provided by Joy.

53. Mr Ha’s account was slightly different to that of the plaintiff. He said that he believed there had been an earlier telephone conversation in which the plaintiff had asked for and had booked a session with Joy, by referring to her by name. Mr Ha claimed that when the plaintiff arrived, he was immediately shown to Room 11, where Joy then joined him. Those differing factual accounts will be analysed at a later point in these reasons.

54. The Diamond Service identified in the evidence of the plaintiff was referred to in the evidence by the acronym “CIM”. This was explained as entailing first, fellatio comprising oral sexual stimulation of the penis by the sex worker, leading to in mouth ejaculation, followed secondly, by penile-vaginal sexual intercourse. It was commonly understood between the parties that the former activity was to be undertaken without the use of a condom, and that the latter activity was to be undertaken with the use of a condom.

55. According to the undisputed evidence of the plaintiff, there had been no discussion between Joy and himself as to the precise nature, extent or detail, of the paid sexual activity that was anticipated to then take place between them in Room 11. To the extent that there had been any such discussion, this appears to have only been between Mr Ha and Joy, where Mr Ha had earlier negotiated the transaction with the plaintiff at the time of payment. The underlying assumption appears to have been that Joy was agreeable to whatever had been discussed between the plaintiff and Mr Ha.

56. When the plaintiff was shown to Room 11, shortly afterwards, Joy joined him in that room and asked him to shower. The door was then locked from the inside by either the plaintiff or by Joy. They both undressed. The plaintiff showered with the assistance of Joy, and she then produced some towels. The plaintiff then dried himself and lay naked on his back on the bed in that room.

57. The plaintiff gave the following description of the subsequent events. Joy took up a kneeling position at the foot of the bed and commenced to fellate him by taking his penis into her mouth. The plaintiff said that in those events he had not been asked to wear a condom. The plaintiff said that fellatio then continued for a few minutes, but not to the point of ejaculation. An unexpected interruption to that activity then took place. This occurred when the inwardly opening self-closing door to the room was suddenly unlocked and opened from the outside. That account given by the plaintiff was not contradicted by evidence.

58. The plaintiff, Mr Chang, Ms Hu and Mr Ha gave varying accounts of the details of the ensuing events.

59. Mr Chang, Ms Hu and Mr Ha each described Joy as having exclaimed the words to the effect cited at paragraph [20] above. The defendants cite this as the claimed justification for entry into the room. Mr Chang, Ms Hu and Mr Ha described having observed that, at the time of their entry, Joy was in an upset state. The plaintiff disputed the factual correctness of all those assertions.

60. The plaintiff said that Mr Chang and Ms Hu entered the room in company with Mr Ha, the latter taking up a position blocking the open doorway. Mr Ha denied that he took up that position in order to prevent the plaintiff from leaving the room. He said he was simply holding the door open. Mr Ha said he was shocked by the circumstances that had ensued, and he took no further active part in the events apart from continuing to hold the door open. He said that if the plaintiff had tried to leave the room earlier than when he eventually did so, he would not have stopped him from doing so.

61. By the time Mr Chang, Ms Hu and Mr Ha appeared and entered the room, Joy had disengaged from any further physical contact with the plaintiff. At that time, Joy was told to leave the room. She then promptly gathered her clothes and left the room. There is a dispute as to whether it was Mr Chang or Mr Ha who told Joy to leave the room. There is also a dispute as to whether or not Joy said anything at that time referrable to the plaintiff or to any of his prior actions.

62. A violent physical fight then erupted variously involving the plaintiff, Mr Chang and Ms Hu. On the respective versions this involved differing sequences. The details and the sequence of those physical actions are the subject of much dispute. This will be examined more closely in my findings of fact on those matters.

63. At some point the physical altercation concluded. The plaintiff then took his belongings and left the premises. He then sat in the gutter or pavement not far from the premises, in an injured state, feeling miserable. Police officers arrived soon afterwards, as did the plaintiff’s friends. A brothel employee had called the police to report an assault in progress. The plaintiff told the police he had been beaten up in the brothel. It appears that the plaintiff declined ambulance assistance and his friends then took him to hospital.

64. The plaintiff sought medical attention for his injuries at Royal Prince Alfred Hospital (“RPAH”). The hospital records will be reviewed in the course of the consideration of determining some factual issues and in the consideration of the plaintiff’s claim for non-economic damages.

65. Police investigations later proceeded, ultimately resulting in the arrest of Mr Chang and Ms Hu. Searches were later undertaken of the brothel premises. Immigration officers also raided the brothel premises. These reasons are not concerned with an evaluation of those events other than as now follows.

66. Mr Chang and Ms Hu were charged with serious indictable offences relating to the alleged manner in which they had treated the plaintiff. They were each twice refused bail. They remained in prison on remand for two months whilst awaiting further court appearances in respect of those charges. They each had previous criminal convictions for assault occasioning actual bodily harm. In that regard, there was no tendency notice served by the plaintiff in relation to those earlier assault convictions. Consequently, I here record that the evidence concerning their prior convictions for assault forms no part of the consideration of this case.

67. Whilst Mr Chang and Ms Hu remained in custody on remand, their brothel businesses suffered a significant economic decline, and they said they also experienced some family difficulties. They claim that those background events, and some discussions that took place between their lawyers and the prosecution, resulted in circumstances where they each decided to plead guilty to a lesser charge in the interests of a more expedient conclusion to the process of their prosecutions.

68. On 30 September 2018, they each subsequently pleaded guilty to a lesser charge of common assault upon the plaintiff. They were duly convicted and they each received a non-custodial sentence. Two Victim Impact Statements from the plaintiff were obtained. It appears that one of them was taken into consideration at the time of sentencing. Mr Chang and Ms Hu nevertheless continue to dispute the factual correctness of some aspects of the plaintiff’s Victim Impact Statement, and an earlier one, a matter to which I shall return.

69. Neither Joy nor any of the other sex workers present on the premises who witnessed some of the events were called to give evidence in these proceedings. No factual statements from those persons were tendered in evidence. The defendants claimed that they did not have the contact details for those persons other than their mobile telephone numbers and their WeChat social media contact details. The defendants stated that they believed Joy had returned to Thailand, and that her actual whereabouts are unknown. No detailed evidence was called as to the nature and extent of any efforts that might have been pursued to seek to obtain evidence from those persons.

70. The manager of the defendants’ 278 Cleveland Street brothel on 26 June 2018 was variously identified in the oral evidence and in the police records as being Jesse Jiang, Jesse Lee, or Yunji Jang, who had originated from Korea. The uncontested evidence is that she was at the premises at the time in question and at the time of the fracas and its aftermath. She has been continuously employed in a managerial role at the defendant’s brothel since those events. She was not called to give evidence in the proceedings on particular matters that could possibly have assisted the case for the defendants concerning any physical evidence that could have relevantly related to the plaintiff.

71. The records of the police investigation showed that before the police attended the 278 Cleveland Street brothel, pursuant to a warrant to investigate the plaintiff’s claim of having been assaulted there, the Manager, Jesse, had deleted “the CCTV footage of the incident the following day instead of saving the footage” because she “thought there was no reason to keep the footage”.

72. The contemporaneously recorded police narrative stated:

“The victim selected the services of an escort named ‘Joy’ and paid the Accused $240, before entering a designated room. The victim undressed and showered before laying on a bed inside the room, where Joy commenced a sex act.

Moments later the Accused and both co-accused entered the room. Joy was ordered to leave and the co-accused CHANG commenced a violent assault on the victim delivering a number of open palmed strikes to the left side of the victims face. The co-accused HU also commenced striking and kicking the victim. The co-accused CHANG dragged the victim off the bed and forced him naked onto his knees in the centre of the room. Both co-accused’ continued to deliver a number of open palmed strikes and kicks to the face and body of the victim.”

[Exhibit “B”, p 286]

73. A call was made to police to report that a violent assault was occurring at the 278 Cleveland Street brothel. When police responded to that call they found the plaintiff sitting on a nearby kerbside in an injured state. This led to the investigating police making a relevant enquiry of a female receptionist at that brothel, who denied that any such incident had occurred: Exhibit “B”, pp 287 – 288. Police later established that it was Jesse who had called the police to say the assault on the plaintiff was witnessed, and was in progress: Exhibit “B”, pp 289 – 290.

74. At about 3.40am the investigating police arrived at the scene and saw the plaintiff in an injured state. The police narrative described the plaintiff as being “noticeably affected by an intoxicating substance as he was unbalanced, swaying on his feet, eyes were bloodshot and having a strong smell of alcohol in his breath”: Exhibit “B”, pp 291 – 292. The plaintiff disputed the factual correctness of the observation as to alcohol.

75. The observation by police of the plaintiff smelling of alcohol shortly after 3.40am was inconsistent with a contrary observation made by a medical examiner at RPAH shortly before 4.47am that same morning, which recorded that the plaintiff “does not appear intoxicated / does not smell of alcohol”: Exhibit “B”, p 5.

76. I now turn to my consideration of the issues calling for decision as identified at paragraph [15] above.

Issue 1 – Credibility and reliability of testimony

77. Significant credit and reliability of testimony issues arose concerning the testimony of all the witnesses who gave oral evidence. In the paragraphs that follow I set out my analysis and conclusions on matters concerning the credibility and reliability of the testimony of the plaintiff, Mr Cheuk Yin Fung, Mr Chang, Ms Hu and Mr Ha.

The plaintiff’s evidence – credit findings

78. The plaintiff was born in Guangzhou in 1994, in China. In 1997, at age 3 years, he moved with his parents to live in Hong Kong where he was educated to a Year 10 level of schooling. In 2013, he arrived in Australia. He studied for 6 months at the Cleveland Street Intensive English High School. He then attended Randwick Boys High School for about a year.

79. The plaintiff was cross-examined extensively on multiple topics. In that regard, I had the opportunity of considering his responses over the course of the three days he spent in the witness box. Although the plaintiff had some facility in the English language, he preferred to give most of his evidence with the assistance of a Cantonese interpreter. The plaintiff gave matter-of-fact evidence on the circumstances of his attendance at the brothel, and as to what he claimed had occurred there.

80. The defendants mounted a series of challenges to the credibility and the reliability of the testimony of the plaintiff. Essentially, those challenges were in three categories. First, on matters which in context, I considered to be minor or peripheral concerning apparent discrepancies between his oral evidence and some factual details appearing in the documentary materials, secondly, the credibility of his evidence on specific matters, both in relation to his finances and in relation to details of the events that occurred on 26 June 2018, and thirdly, what the defendants described as the plaintiff’s gross exaggeration of his injuries, except as to his left eye: T190.25. The defendants placed great emphasis on the plaintiff’s finances on the issue of his credit, a matter to which I shall return.

81. The thrust of the defendants’ submissions as to the plaintiff’s credit was to the effect that because “under oath” (a mistaken reference to the plaintiff’s affirmation) he had “told a lot of small lies”, which counsel for the defendants acknowledged, of themselves, “don’t add up to much because he could be mistaken or all sorts of things”, nevertheless, there were “some very large lies regarding his cash payments and his bank accounts”, where “he’s clearly lying”. It was therefore submitted that his evidence on critical matters in dispute should not be accepted: T558.35 – T558.39; T571.13 – T571.19.

82. In making submissions along those lines, counsel for the defendants rejected an alternatively formulated proposition to the effect that what had been submitted as comprising “small lies” on the plaintiff’s part, should instead be seen as being discrepancies on peripheral matters, not necessarily being lies, and which were not material contradictions that discredited the plaintiff on the more substantive issues: T561.7 – T561.18. The defendants rejected that construction in favour of a more critical and adverse construction against the plaintiff’s credit.

83. On balance, I considered the defendants’ submissions on the plaintiff’s credit overstated the effect of the evidence and overstated the significance and the effect of the challenges that were made in cross-examination of the plaintiff.

84. The defendants’ credit submissions referred to the plaintiff’s evidence as lies in very robust terms, as cited above. The defendants’ submissions forthrightly characterised the plaintiff as having lied under oath: T567.40. When that submission was queried as to its appropriateness in light of the distinction between an activity of consciously lying under oath, or simply giving incorrect evidence, the defendants maintained that the more serious of those constructions should apply.

85. This led to counsel for the defendants being asked in the course of final submissions to address whether the proposition of the plaintiff having lied under oath had been properly put to him in those terms to give him a fair opportunity to comment on that assertion. The defendants maintained through the submissions of their counsel that the plaintiff had lied under oath: T567.48. In the specific context of that discussion, counsel for the defendants indicated that transcript references for such challenges would be provided: T567.49.

86. On 17 March 2020, the parties were informed that the time for any supplementary submissions in writing had closed, and that the Court would proceed to deliver judgment as soon as was practicable. There was no application made by any party to seek an extension of that time frame to make further submissions.

87. In my assessment, the evidentiary references provided on behalf of the defendants in the course of submissions and in MFI “13” did not support the serious assertion that the plaintiff had lied under oath.

88. The defendants’ challenges to the veracity of the plaintiff’s evidence, whether expressed as comprising lies, lying, or untruths, were somewhat limited in their terms. I do not consider that the detail of those challenges, as put to the plaintiff, justified the level to which the defendants’ final submissions on the plaintiff’s credit had been pitched.

89. A further difficulty with the defendants’ credit submissions was that on the damages issues, although the defendants’ counsel flagged that it would be suggested to the plaintiff (at T190.25), that he was “grossly exaggerating any injury to himself other than that to his left eye”, no question had been put to him in those terms to justify that submission: Browne v Dunn (1893) 6 R 67.

90. In essence, the challenges to the plaintiff’s credit are, as arranged for convenient consideration as follows, in conformity with the chronological order in which the underlying events took place.

Matters pre-dating the events

1. The matter of a date discrepancy, either 2013 or 2014, as the year the plaintiff arrived in Australia: T65.36. The difference is inconsequential;

2. The matter of whether, when at the Ginza brothel in December 2017, the plaintiff had been told of the allegation that he had been referred to as either not wearing or taking off his condom during sexual intercourse with sex workers at those premises: T202.10. The plaintiff’s denial was not contradicted by other evidence;

3. The matter of whether, at the Ginza brothel, in December 2017, when the plaintiff was told by Mr Chang that he was banned from further attending there, the plaintiff had been slapped in the face by Mr Chang, gently or otherwise, two, three or a few times: T113.9 – T113.33;

Events preceding the plaintiff’s transaction at the 278 Cleveland Street brothel

4. The matter of whether or not the plaintiff had taken alcohol on the evening in question is a matter that requires examination in the context of the pleaded defence of intoxication: T594.36

5. The matter of whether or not Mr Cheuk Yin Fung was present when the plaintiff found himself unable to obtain sexual services at the brothel that the group had earlier attended together: T228.2;

6. The matter of whether it was the plaintiff who had rung Mr Cheuk Yin Fung, or vice versa, before the sex worker named Joy and the plaintiff proceeded with their transaction in Room 11 at the 278 Cleveland Street brothel: T144.17;

Plaintiff’s interaction with Joy at the 278 Cleveland Street brothel

7. Whether the plaintiff had been in Room 11 with Joy for more or for less than 10 minutes: T186.44; T187.3; T187.21;

8. The veracity of the plaintiff’s denial of having sexually assaulted Joy and having allegedly himself caused the altercation in question by beforehand removing his condom whilst having or attempting sexual intercourse with Joy: T200.38; T204.10;

The critical events of the altercation

9. Who was the physical aggressor in the altercation which is the subject of these proceedings;

10. Whether it was Mr Chang, Ms Hu, or both who had kicked the plaintiff in the abdomen whilst they were located in Room 11: T179.8;

11. Whether it was Ms Hu who left the room in order to assemble the sex workers at the doorway, and whether the plaintiff was lying in his Victim Impact Statement when he asserted that Mr Chang had told him to apologise to those sex workers: T182.1 – T182.9;

Events occurring after the altercation in question

12. Whether the content of the plaintiff’s police statement was truthful: T64.29; T64.33;

13. Whether the plaintiff had lied in one of his Victim Impact Statements: T182.2 – T182.5;

14. The truthfulness of the plaintiff’s claim that, after the events in question, he became scared on a later occasion whilst he was driving a passenger in an Uber vehicle to a Surry Hills destination: T196.36;

Basis for the defendants’ “greatest lies” submission on the plaintiff’s credit

15. The “greatest lies” relied upon by the defendants in their submissions (at T564.13), and which the defendants claim discredited the plaintiff, related to his evidence as to the probity of his finances. In that regard, the defendants relied upon the following extract from evidence:

“Q. You said that different expenses may come up during the day, prior to 26 June 2018, every week you were receiving quite a lot of cash from your employment within your mother's brothels; is that correct?

HIS HONOUR: Do you mean by that question that he was receiving cash in his own right or on behalf of his mother's brothels, it's the way the question is framed it's ambiguous.

WALSH

Q. You were paid cash both a base salary and a commission and your evidence was you were paid in cash in an envelope each week by your stepfather?

A. WITNESS: Yes.

Q. You took that cash home?

A. WITNESS: Yeah.

Q. And you never banked any of that cash?

A. WITNESS: Not immediately.

Q. No, you said that you didn't bank the cash that you took home?

A. INTERPRETER: I didn't say never. Sometimes when I was with my mother, when I was lacking in cash I would ask my mum for extra cash. When I'm lacking in cash, I ask my mum for cash.

Q. Your mum gave you even more cash than your actual salary?

A. INTERPRETER: Yes, yes, that's true because I spend quite a bit of money. After this incident especially, before this incident I was quite a big spender.

Q. You did say, I said this is at page 72, 47, 44, "And did you take the cash home with you or did you place it in the bank?" Witness, "Take it back to my home, yes." "Did you deposit part of it in the bank each week or did you keep all of it?" Answer, "All took home, nothing bank." "No banking of any of it, you never banked your wages" you did say later on did. And then you said, "When you say later on, what period, it was about a year and a half before case happened"?

A. INTERPRETER: Not true.

Q. Not true?

A. INTERPRETER: I don't, because it's so long, I don't quite catch your, the gist.

Q. I'm just repeating your evidence in fairness to you, in any event you had a lot of cash at home did you not, prior to this incident?

A. INTERPRETER: Sometimes I put it on my person, sometimes I put it underneath my bed, yes, there's quite a bit of cash, have it on my person or at home.

Q. You didn't necessarily have to access the account to get money out because you had plenty of cash at home?

A. INTERPRETER: Yes.”

[T210.45 – T211.47]

91. As to Sub-paragraphs (1), (2), (3), (4), (5) and (6) of paragraph [90] above, for the reasons that follow, I consider those matters should be seen to be of relatively minor and peripheral if not inconsequential importance and they should not be seen as having a significantly adverse impact on the reliability of the plaintiff’s evidence or his credit. My reasons for that view are as follows.

92. The precise identification of the year of the plaintiff’s arrival in Australia is of no material consequence: Sub-paragraph (1) of [90] above. The fact that the defendants had previously banned the plaintiff from the Ginza brothel is of some background relevance, but the defendants’ stated reasons for that ban, namely condom removal during sexual intercourse with sex workers at that brothel, has not been proven as to its factual foundation: Sub-paragraph (2) of [90] above. The number of times the plaintiff was previously slapped by Mr Chang at the Ginza brothel, and whether this was accurately described by the plaintiff in his statements, is a peripheral matter: Sub-paragraph (3) of [90] above.

93. Whether or not the plaintiff had consumed any alcohol on the evening in question is a matter of diminished significance given that, neither Mr Ha, Mr Chang nor Ms Hu, each of whom had direct dealings with the plaintiff that evening, made any reference in their evidence to the plaintiff having been affected by alcohol: Sub-paragraph (4) of [90] above. The significance of the police and hospital observations as to the plaintiff being affected by alcohol has to be examined in that light. That issue will be further examined in the context of the claimed statutory defences, for which the defendants have the onus of proof.

94. The matter of Mr Cheuk Yin Fung’s knowledge of the timing of the plaintiff’s inability to obtain sexual services at the brothel where the group had earlier attended, in comparison to himself engaging with such services, is in my view a peripheral matter of no relevance, although it would seem that as the plaintiff had paid for his friends to receive such services, the circumstance of him being refused sexual services there, may have followed those other transactions: Sub-paragraph (5) of [90] above. The question of whether the plaintiff rang Mr Fung or whether Mr Fung had rung the plaintiff before the events in question is a peripheral matter of no relevance: Sub-paragraph (6) of [90] above.

95. The question of whether, at the defendants’ brothel, the plaintiff was in Room 11 with Joy for less than or more than 10 minutes, is of little if any significance to determining any issue in the case, especially as none of the other witnesses were observing the passing of time at that point: Sub-paragraph (7) of [90] above.

96. None of the witnesses called by the defendants were able to give any eyewitness account on the question of whether, contrary to the plaintiff’s evidence, he had removed a condom at any time when he was in the room with Joy, or beforehand, at the Ginza brothel: Sub-paragraph (8) of [90] above.

97. The question of who was the aggressor who initiated the altercation in question, is a factual matter to be determined in connection with the consideration of Issue 2: sub-paragraph (9) of [90] above.

98. The question of who kicked the plaintiff and in what sequence during the altercation in question, involves a consideration of a fact in issue which must be determined on an evaluation of the evidence: Sub-paragraph (10) of [90] above. So too is the matter of who went to fetch and assemble the sex workers to whom the plaintiff was then required to apologise: Sub-paragraph (11) of [90] above.

99. The characterisation of discrepant descriptions on factual matters on a comparison of the plaintiff’s oral evidence and the content of his two police statements and his two victim impact statements, and whether he lied in that regard, are matters that stand to be resolved by findings of fact: Sub-paragraphs (12) and (13) of [90] above.

100. The defendants’ characterisation of the plaintiff’s evidence on such matters as lies, is an overstated position given there were intermediary interpreters involved in the process and there was scope for misunderstanding on the part of the police and the person preparing the plaintiff’s Victim Impact Statement: T64 – T65; T107.7; T173 – T174; T182.5 – T182.25.

101. The question of the truthfulness of the plaintiff’s statement of being scared to drive after the events in the circumstances he described, and as commented upon in the medical evidence, is not of itself incredible or inherently improbable: Sub-paragraph (14) of [90] above.

102. The fact that the plaintiff’s evidence revealed circumstances of non-payment or underpayment of due tax on his earnings is plainly a matter of discredit to the plaintiff: Sub-paragraph (15) of [90] above.

103. That said, I consider that the fact the plaintiff acknowledged such matters which suggested financial delinquency, is an indication that his evidence in that regard was truthful. The defendants’ complaint over an earlier incomplete compliance by the plaintiff with a subpoena for his financial records to be produced could easily have been remedied by taking available procedural steps before the trial if the defendants’ legal representatives had seen fit to do so on an examination of those records which were produced in the first instance.

104. A timely examination of that material would have revealed to the defendants that transfer of significant funds had been made into the plaintiff’s account, and by whom. A request for particulars on that issue, or an interrogatory, or a timely further subpoena, if issued could have readily revealed that the plaintiff had another bank account from which he had been transferring funds.

105. However, once the non-compliance issue was identified in the plaintiff’s evidence, and the relevance of the circumstances was explained to him, the plaintiff did not seek to conceal the fact of a second account, and he produced the statements on the next convenient occasion without the need for other measures to be taken. In those circumstances, I do not regard those described events to support “the greatest lies” as made by the defendants’ submissions.

106. In arriving at that view I have not overlooked the matter that the forensic accountants who had been engaged to assist with quantifying the plaintiff’s claim for economic loss, were instructed as follows:

“4.   Business intentions

4.1   It was always the family's intention to open more brothels where our client would independently manage.

4.2   Our client had left school in year 12 to work in the family brothel business. The family did not provide him with a salary documented by pay slips. As it was a family business, his financial needs were provided for in exchange for work.

4.3   As our client has not been able to return to work as a consequence of his injuries, the business has had to increase the number of shift (sic) of the other managers.

5.   Comparable   

5.1   Attached is a receipt for an electronic fund's transaction to Seung Man Ha from account 06 26923461 4357. The transaction is marked 287 Salary, in the amount of $3,000.

5.2   Mr Seung Man Ha is a manager for the Defendant. We are instructed that our client earns more than $3,000 per week, but believe that this is a reasonable comparable.

5.3   In the alternative, a brothel receptionist advertisement dated 30 July 2019 advertised a rate in excess of $30.00 per hour.

6   Alternative assumption   

6.1   Through our client's years of working as a manager in the sex industry, even if he was not going to continue in the industry, we say that our client's injuries have caused him a loss of work potential on the open labour market.

6.2   His comparable earning (sic) on the open labour market would be that of a manager in the entertainment industry. Wages for a venue manager exceeds $80,000 per annum.”

[Exhibit “B”, pp 133 – 134]

107. Relevantly, and inconsistently with the plaintiff’s oral evidence of his brothel earnings of between $1200 and $1500 per week as disclosed in his evidence, his solicitor represented, as I infer, on instructions, that, as at 28 August 2019, the plaintiff “earns more than $3,000 per week”. It appears no tax was paid on those historical earnings, which were characterised as monies that were paid to the plaintiff to meet his financial needs, in exchange for his work, in circumstances where there was no salary documentation.

108. Whilst that was a discreditable financial arrangement, which undoubtedly creates assessment difficulties for the plaintiff with regard to his claim for economic loss, the admission to that effect, which involves significant understatement of his earnings, and which was characterised by the defendants as great lies, does not necessarily mean that the plaintiff’s evidence on other matters should be discounted, where it otherwise has the ring of truth, and is not otherwise inherently improbable.

109. My reason for that view is that, to the plaintiff’s forensic disadvantage on the issue of his financial probity, on instructions from him, his solicitor openly disclosed those facts to the forensic accountants as part of the preparation of the case, knowing it would most likely be used against him. Instead, a different course of concealment or suppression of such information could have been taken, and if taken, that would well have reflected adversely on his credit. I therefore consider the openness of that disclosure should be weighed in the plaintiff’s favour on the issue of his credit.

371. In my view, in this case, the proper approach to assessing the plaintiff’s damages for past loss of earning capacity would be to allow $750 per week net for 12 weeks of full incapacity and a further 12 weeks of partial but increasingly emerging earning capacity at an average of $300 per week net.

372. I consider that the assessed sums of $750 per week net for 12 weeks ($9000), and an average of $300 per week net for the ensuing 12 weeks ($3600) represent fair assessments. I therefore assess the plaintiff’s damages for past loss of earning capacity in the respective amounts of $9000 and $3600, in the total sum of $12,600.

Future economic loss

390. In seeking to obtain evidence in support of an assessment of the plaintiff’s claim for future loss of earning capacity, the plaintiff’s solicitor obtained a forensic accountant’s report dated 13 September 2019 from Furzer Crestani Forensic.

391. On the basis of assumptions put to those accountants, they were asked to prepare illustrative calculations estimating the plaintiff’s earnings but for the subject incident on a series of three alternative scenarios. The first was an assumed gross weekly income of $3000 per week as a manager of a brothel; the second was at an hourly rate of $30 per hour as a receptionist in “a high class brothel”; and the third was on the basis of assumed earnings of $80,000 per annum as a venue manager.

392. The Furzer Crestani Forensic report identified calculations based on those three alternative assumptions. The amounts calculated according to those assumptions were all outwith the jurisdiction of the Court for determining this case, namely, $750,000. Those calculations were tabulated as follows:

Elements of loss	Scenario 1	Scenario 2	Scenario 3
(a) Past income	$162,041	$74,151	$91,150
(b) Future income	$1,647,227	$742,620	$910,504
(c) Superannuation	$290,938	$116,370	$148,677
Total	$2,100,206	$933,141	$1,150,331

393. The plaintiff’s future economic loss submissions were based on the range identified in element (b) in the above tabulation. The defendants’ submissions proceeded on the basis that no damages should be awarded for future economic loss.

394. As already observed, I consider that the submissions from both parties on the issue of future economic loss are unacceptable as they do not adequately reflect the medical evidence.

395. Therefore, instead, I propose to approach the assessment of future economic loss by adopting the same principles for a buffer approach as outlined in the authorities identified at paragraph [381] above.

396. Having regard to the medical evidence that touches upon the plaintiff’s need for future treatment, I consider that the plaintiff is entitled to a modest buffer against the possibility that he may in the future encounter a degree of difficulty obtaining employment because of the residual psychological and physical sequelae of the events in question. I consider that a buffer amount of $30,000 would be a reasonable sum on that account. I therefore assess the plaintiff’s damages for future loss of earning capacity in the buffer amount of $30,000.

Future treatment expenses

397. The plaintiff claimed an amount of $13,305 for future treatment expenses likely to be incurred over the ensuing 2 years: MFI “2”. Those claimed expenses relate to consultations with his general practitioner, a psychologist, medication, and functional vocational assessments.

398. I consider the range of claimed treatment modalities identified in the plaintiff’s submissions to be reasonable. However, the amounts claimed are only estimates which will undoubtedly vary as to incidence and frequency. I also recognise that the bulk of any expenses incurred for future treatment will most probably be incurred in the relative short term within the next few years rather than in the longer term.

399. In those circumstances I consider that a discounted buffer sum would be the appropriate method of assessment of this component of the plaintiff’s claim. I consider that a reasonable allowance for this head of damage would be the buffer sum of $5000. I therefore assess the plaintiff’s damages for future treatment expenses in the buffer amount of $5000.

Past out-of-pocket expenses

400. Past out-of-pocket expenses have been agreed in the amount of $6185.85. I therefore assess the plaintiff’s claim for past out-of-pocket expenses in the amount of $6185.85.

Interest on general damages

401. The plaintiff claims interest on his damages award in respect of past damages. In this case interest is only allowable on some elements of the assessed damages.

402. Part of the plaintiff’s general damages crystallised as at the time the deprivation of the plaintiff’s liberty ceased, that is, within about half an hour of the events: Zavarinos v State of New South Wales [2004] NSWCA 320, at [52]. In my view, that component is a relatively small proportion.

403. Overall, I assess the plaintiff’s past general damages for pain, suffering and loss of amenity of life, to date, a period of 1.34 years, at $40,000.

404. This requires that interest be awarded on $40,000 at the rate of 2 per cent over 1.34 years to the commencement of the hearing on 20 February 2020: MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; [1991] HCA 3. This yields the amount of $1072.

405. There is no evidence that the plaintiff’s out-of-pocket expenses have already been paid by him. Accordingly, the evidence does not disclose a basis for interest to be assessed on those damages.

406. I therefore award interest on the plaintiff’s past general damages in the amount of $1072.

Summary of damages assessment

407. My assessment of the plaintiff’s damages is summarised as follows:

(a) General damages for non-economic loss	$75,000
(b) Exemplary damages	$25,000
(c) Past economic loss	$12,600
(d) Future economic loss	$30,000
(e) Future treatment expenses	$5,000
(f) Past out-of-pocket expenses	$6,185.85
(g) Interest on general damages	$1,072
Total	$154,857.85

Disposition

408. The plaintiff has established his entitlement to a damages award of $154,857.85.

Costs

409. As the plaintiff has succeeded in obtaining a judgment in his favour, he should have an order that the defendants should pay his costs of the proceedings on the ordinary basis unless a party can show an entitlement to some other costs order, for which there should be liberty to apply.

Orders

410. I make the following orders:

1. Verdict and judgment for the plaintiff against each defendant in the sum of $154,857.85;

2. The defendants are to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered

3. The exhibits are to be retained with the Court file until the further order of the Court;

4. Liberty to apply on 7 days notice if further or other orders are required;

5. I direct the Registrar to forward a copy of these reasons, together with copies of the transcript, MFI “11” comprising the list of transcript errata, and a copy of pages 112 to 148 of Exhibit “B”, to the Proper Officer at the Australian Taxation Office responsible for ensuring compliance with taxation obligations.

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Decision last updated: 21 April 2020