Jeleskovic v Wagner (No. 2) - [2020] NSWDC 126

District Court

New South Wales

Medium Neutral Citation: Jeleskovic v Wagner (No. 2) [2020] NSWDC 126
Hearing dates: 8-9, 14-15 April 2020
Date of orders: 22 April 2020
Decision date: 22 April 2020
Jurisdiction: Civil
Before: Abadee DCJ
Decision:
See paragraphs 214-216

Catchwords:
TORTS – action for damages for personal injury arising from alleged negligence – occupant of residence allegedly pushed co-occupant down a flight of stairs – occupant admits to pushing co-occupant but not down the stairs – whether issues of liability and damages regulated by the Civil Liability Act 2002 (NSW) or the common law (not modified by that legislation) – whether intent to injure established – standard of proof – whether duty of care and breach established – factual causation
DAMAGES – nature and extent of physical injury – claim of psychological injury – relevance of pre-incident diagnoses of Post-Traumatic Stress Disorder and depression – claims for aggravated and exemplary damages
Legislation Cited: Civil Liability Act 2002 (NSW), ss 3B, 5B, 5C, 5D, 5E, 17A, 21
Crimes Act 1900 (NSW), s 59
Evidence Act 1995 (NSW), s 140
Uniform Civil Procedure Rules 2005 (NSW), rr 14.23, 15.7, 15.8
Cases Cited: ASIC v Hellicar (2014) 247 CLR 345
Croucher v Cachia [2016] NSWCA 132
D’Orta-Ekenaike v Victoria Legal Aid (2005) 233 CLR 1
Dean v Phung [2012] NSWCA 223
Dickson v Northern Lakes Rugby League Sport & Recreation Club & Anor (No.2) [2019] NSWDC 433
Dunbar v Brown [2004] NSWCA 103
Fede v Gray by his tutor New South Wales Trustee and Guardian [2018] NSWCA 316
Graham v Baker (1961) 106 CLR 340
Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 268
Husher v Husher (1999) 197 CLR 143
Lamb v Cotogno (1987) 164 CLR 1
McCrohon v Harith [2010] NSWCA 67
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
New South Wales v Ibbett (2006) 229 CLR 638
Paff v Speed (1961) 105 CLR 549
Palmer v Dolman [2005] NSWCA 361
Perre v Apand Pty Ltd (1999) 198 CLR 180
Presidential Security Services of Australia Pty Ltd v Brilley (2008) 73 NSWLR 241
Sullivan v Moody (2001) 207 CLR 562
Westbus Pty Ltd (Administrators Appointed) v Ishak [2006] NSWCA 198
Williams v Milotin (1957) 97 CLR 465
Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515
Wyong Shire Council v Shirt (1980) 146 CLR 40
Category: Principal judgment
Parties: Mr M Jeleskovic (Plaintiff)
Ms N Wagner (Defendant)
Representation: Counsel:
Mr M Donovan for the Plaintiff
Mr W Tuckey for the Defendant
Solicitors:
Northern Coast Solicitors for the Plaintiff
Beston Macken McManis Lawyers for the Defendant

File Number(s): 2019/170835
Publication restriction: Nil

Judgment

INTRODUCTION

This proceeding arises from a domestic incident involving the plaintiff and the defendant, the plaintiff’s ex-partner, at the latter’s home in Rushcutters Bay on the evening of 8 June 2016. The plaintiff was, at the time of the incident, a 64 year old man and was a member of a musical band. The plaintiff fell down a set of (apparently 12) stairs. He alleges that he fell because he was pushed by the defendant. He says he suffered injuries, primarily, to his neck, right arm, and right shoulder. He also claims to have suffered depression and post-traumatic stress disorder as a result of the fall.
He brings a claim for damages against the defendant for personal injuries. The claim is brought in the tort of negligence. He did not bring an action against the defendant for trespass to the person, as in a battery. Conceptually, it is well-established that the facts might give rise to a claim for damages for personal injury under each of the tort of negligence and the tort of battery[1] . The action may be brought in negligence because although the tortious act may be intentional, the resultant harm suffered may have been inadvertent and the suffering of damage is the gist of the action.
1. Williams v Milotin (1957) 97 CLR 465.
By his Statement of Particulars, the plaintiff seeks damages embracing allowances for past and future out of pocket expenses, past and future domestic assistance, past loss of income and future loss of earning capacity.
By her defence[2] , the defendant denied that she pushed or touched the plaintiff. That position changed at trial. In her Defence, she also said that the plaintiff slipped on the second step of the stairs and thereafter fell. She disputes that her push caused the plaintiff to fall down the set of stairs and also disputes the extent of the plaintiff’s injuries.
2. Which was curiously verified by the defendant’s solicitor, rather than the defendant herself, contrary to the requirements of r 14.23 of the Uniform Civil Procedure Rules 2005 (NSW).
She also contends that such medical evidence and health records as have been relied upon by the plaintiff are, essentially, stale; so that no allowance would be made for damages for the future.
By her defence, she also pleaded a defence of contributory negligence to the action for negligence; by his failure to use the handrail and generally proceed carefully down the stairs.

ISSUES

The issues for the Court’s determination are:

whether the defendant pushed or touched the plaintiff;

whether the defendant’s conduct (in pushing) was done with the intent of injuring the plaintiff;

whether such push or touch by the defendant caused the plaintiff to fall down the stairs;

whether the defendant breached a duty of care to the plaintiff;

whether the plaintiff’s falling down the stairs caused him to suffer personal injury and disability;

what are the injuries and disabilities suffered by the plaintiff;

what (if any) heads of damage are recoverable; and

whether any award for damages should be reduced because of any contributory negligence by the plaintiff.

THE CIRCUMSTANCES OF THE PLAINTIFF’S FALL

The plaintiff’s evidence

At the time of his fall, the plaintiff was 64 years of age. He was a musician, and composer, by trade. It appears that he came to Australia in 1995 after the Bosnian war. He was, in particular, the composer and leader of a small orchestra, as well as its artistic director.
He gave evidence that in the afternoon of the date of the fall, he was performing some work in an art gallery in Paddington, when his then partner was speaking with others. This would have been between 2:00pm, or 2:30pm and 6:00pm that day. He said that he had arranged to attend a rehearsal of his orchestra that evening and, for that purpose, intended to arrive there between 8:00pm or 8:30pm.
He said he left the gallery in Paddington and went back to the defendant’s home, in Rushcutters Bay, around 6:00pm. He got dressed. He did not recall eating. He did, however, join his then then partner (the defendant) and between them they consumed a bottle of Moet champagne. He estimated that they each shared about 3 glasses. He indicated he was not a regular drinker. I inferred from his evidence that the drinking was attributable to some celebration associated with the defendant’s business with her art gallery. A clinical history later taken of the plaintiff whilst at hospital recorded that he was ‘intoxicated’ and an ambulance record indicated that he had drunk a bottle of champagne 2 to 3 hours before the ambulance had arrived, after his fall.
The plaintiff said that he indicated to the defendant that he would have to prepare to leave for his orchestral rehearsal. This, he later said in cross-examination, was at Nadya’s mother’s place in Darlington. The reference to Nadya was to Nadya Golski, who was later called as a witness for the plaintiff. He intended to get there by a short train trip from Kings’ Cross railway station to Redfern railway station; which only required a short walk from the latter station. To this declaration of intent, he said, the defendant objected. She wanted him to stay at home. She was forthright in this request – the plaintiff described her as expressing herself in a ‘military’ tone. But the plaintiff indicated that he felt responsible to proceed to the rehearsal and he walked upstairs to the bathroom.
Under cross-examination, the plaintiff was referred to the time when the ambulance arrived and his evidence as to how long he took between the time of his fall and the time for the ambulance arrival. It was put that this suggested that the fall must have occurred around 9:20pm or 9:30pm. If his evidence about his intention to attend an orchestral meeting at 8:00pm or 8:30pm was true, it was suggested that the plaintiff would have been well on his way to attending that meeting before any fall had occurred. The plaintiff maintained that it was his fall that prevented his attendance at the orchestral meeting.
At any rate, the plaintiff said that he needed to put a bandage on his hand. He said that the defendant followed him up the stairs. As they proceeded, they argued. He said that she was screaming at him.
The plaintiff said he went inside the bathroom. After knocking on the door of the bathroom, the defendant motioned to move inside. The plaintiff exited the bathroom and proceeded in the direction of the stairwell. This, he estimated, was approximately 160cm away (he estimated that it usually took between 2 to 5 steps walking distance from the bathroom to the stairwell). He was intending to leave the house and go to the rehearsal.
The plaintiff said that the defendant was screaming. This was an angry scream at him. He recalled her complaining about Nadya Golski who, I was informed, was a member of the orchestra; and possibly other members of the orchestra. He recalled her saying words to the effect that he had no right to go to the rehearsal.
The plaintiff recalled that as he was at about the top of the stairwell, he was pushed on the back from behind by the defendant. This was of such strength, he recalled, as being of the magnitude of being pushed “by a professional football player”. He was clear that he was not pushed in the bathroom.
After being pushed, the plaintiff fell down the stairs. He says he felt pain and was in a state of shock. He said he felt in fear that the defendant was going to kill him. He recalled that she came downstairs but did not say anything when he was on the ground.
He recalled that the defendant had laughed at him. He said he thought that she delayed calling an ambulance; a delay which he thought lasted for at least 15 minutes, more or less.
When the ambulance arrived, he saw two paramedics. One or both of them told him to remain where he was. He was given an injection. He heard the defendant say to them that she had pushed him.
He stayed overnight at St Vincent’s Hospital. He recalled speaking to certain people in the next few days. In particular, he recalled being interviewed by the police.

Credit

The circumstances in which the plaintiff (along with all the other witnesses) gave his evidence were problematic. He (and they) gave his evidence in the ‘Virtual Courtroom’ attended by a range of people utilised during this pandemic. Throughout the trial generally, occasionally the audio or pictures on the screen of Counsel and/or witness cut out.
As if this was not difficult enough, the plaintiff struggled to express himself in English. It sometimes appeared that he struggled to understand what he was being asked. It was difficult to understand him at times and sometimes, his answers made little sense. Often they were infused with irrelevant detail.
Making allowances for these circumstances, I considered that the plaintiff was not a reliable witness. His answers were (more often than not) non-responsive, but rather consisted of much rambling (and not only because of a lack of understanding of what was being asked); he was prone to exaggeration and embellishment and was intent, whenever he could, in giving answers that he thought could advance his case. Often, he added gratuitous references to motives he ascribed to the defendant. He evinced a palpable animosity towards the defendant. It appeared, at times, that he blamed the defendant for all of his troubles. For example, even when he was asked questions about his symptoms of PTSD in 2012 and 2013, as he conveyed them to his then general practitioner, the plaintiff’s answers were directed against the defendant.
His recollections were not strong and sometimes he was reluctant to make concessions on relatively immaterial matters. I refer here to his unwillingness, for example, to acknowledge his living arrangements with the defendant up to the time of the incident and the assistance he rendered to the defendant at the latter’s fledgling art gallery in Paddington on the day of the incident. These were, as I say, relatively innocuous matters, but they reinforced, in my mind, that the plaintiff was intent on answering questions in a way intended to advance his own interests. When it came to questioning of where he proposed to stay on the evening of 8 June 2016, I regarded his evidence as evasive.
I approach his evidence with caution and would not be prepared to accept it at face value in the absence of corroboration or unless it was consistent with the objective probabilities.

Mr Grech’s Evidence

The plaintiff called Mr Grech, a paramedic. Mr Grech attended the plaintiff’s home at about 9:54pm and thereafter observed and briefly examined the plaintiff. He found him at the bottom of the stairs in the home. Mr Grech was at the home for about half an hour before leaving at 10:28pm at which point the plaintiff was taken to hospital.
Mr Grech authored a NSW Ambulance patient health care record (Exhibit A). The record was created after his attendance.
Mr Grech, unsurprisingly, had no independent recollection of what he saw, or what he was told in respect to the incident which occurred in June 2016. The Court granted him leave to refresh his recollections from what he wrote in the health care record.
The material part of his evidence, on liability, was his written record of what he had been informed by the defendant. His record of what the defendant said to him was admissible as admissions. There was no record of his being informed anything by the plaintiff. Mr Grech said that it did not necessarily follow that the plaintiff had not given him any history of the event in question: his concern was to record his medical observations of the patient.
The relevant part of the record was as follows:

“patient wife had argument. Wife pushed pt (i.e. the plaintiff) & Pt slipped at top step onto backside and slid down stairs all the way on backside and back”.

Mr Grech gave evidence that the defendant had said that the plaintiff had not suffered any loss of consciousness. When Mr Grech found the plaintiff, he observed that he had not lost consciousness.
When cross-examined, Mr Grech accepted that:

he had no recollection of the actual words (reflected in direct speech) the defendant had used to him;

the notes were not prepared in ‘real’ time, as it were, but were his reconstruction of the effect of what he had been told;

there was no reference in his notes, and he had no recollection, of the defendant indicating:

the location of where, within the home, the argument took place;

how long after the argument the defendant pushed the plaintiff;

how the defendant pushed the plaintiff (such as whether she did so with two hands, or with what level of force),

the abbreviation ‘ETOH’ in the record was a reference to his observation of alcoholic consumption by the plaintiff. The plaintiff himself told him that he had drunk a bottle of champagne 2-3 hours before (a matter recorded in the ambulance record). Mr Grech detected a heavy smell of alcohol.

No challenge was made to Mr Grech’s evidence; limited, in nature, as it was. I accepted him as giving his evidence honestly and credibly although his recollections were meagre.

Nadya Golski’s Evidence

Ms Golski was a long-standing friend of the plaintiff. She is a musician. She was part of the plaintiff’s chamber group. Indeed, she was photographed performing with him in April 2017 (Exhibit 1). She was a soloist for the group.
There were several purposes for her giving evidence. First, she confirmed that there was a musical rehearsal planned for that evening. She thought that it was scheduled to occur at about 7:00pm or 8:00pm.
More importantly, she gave evidence of a telephone conversation that Ms Golski said she had with the defendant on the evening that the incident occurred. She could not recall, verbatim, what the defendant had told her but she repeatedly recalled the defendant telling her that she (the defendant) had pushed the plaintiff and that the plaintiff fell down the stairs.
In the course of her cross-examination, she had the opportunity, on numerous occasions, to exhaust her recollection of what the defendant said to her. The most fulsome account that she recalled was that the defendant had told her that she had pushed him and that the plaintiff had fallen down the stairs. The defendant added that the plaintiff was very bashed and bruised and Ms Golski recalled her expressing the hope that he would be okay. But, she recalled, the defendant added that she and the plaintiff could not live together. The defendant asked Ms Golski if the plaintiff could move in with her. Ms Golski recalled responding that that would be a matter for her and the plaintiff to discuss.
Perhaps the most critical part of her evidence in cross-examination was her understanding of where the push occurred. Ms Golski vaguely recalled a reference to the bathroom. She could not recall whether the defendant had mentioned this, or whether the plaintiff (later) mentioned it (and if so, how much later the plaintiff mentioned it). Ms Golski appeared uncomfortable in making reference in her evidence to the bathroom and sought to withdraw the reference. She did not, however, recall the defendant saying anything to her about the plaintiff slipping on the floor.

Credit

I considered that Ms Golski was an honest witness but that she was not very reliable. As a long-standing friend, she was naturally sympathetic to the plaintiff, to such degree that she visited him in hospital the following morning. I think the sentiment went beyond friendly sympathy to the point where it appeared to me that she was partisan. I refer later in the section of the reasons dealing with her evidence of the plaintiff’s injuries, where she shifted her evidence in respect to the plaintiff’s capacity to play the guitar after the incident. More generally, it appeared to me that, albeit to a lesser degree, she shared a similar sense of frustration with the reduction in the plaintiff’s musical activities after the incident; and its effect on her own personal ‘mental or emotional health’. She said that the plaintiff lived with her for months, if not up to a year, after the incident occurred; and, although she downplayed the plaintiff’s willingness to talk about what had occurred, there was a real risk that what he said about it had contaminated her recollection. Her vague reference to someone mentioning to her that there was relevant activity in the ‘bathroom’ and its significance to the incident in question, before withdrawing the reference may have demonstrated this.
I treat her evidence with some caution.

Other evidence of how the fall occurred

There were various other pieces of contemporaneous evidence of the plaintiff complaining of being pushed by the defendant. This included the discharge summary report of St Vincent’s Hospital on 10 June 2016 and the radiologist’s report on 9 June 2016. Further reference to an ‘assault’ (in the form of a push) being perpetrated by the defendant upon the plaintiff appeared in the clinical psychologist’s letter of 7 November 2016.
Under cross-examination, it was put to the plaintiff that he had told Dr Spielman that the defendant had pushed him down stairs; that he had been drinking and that the defendant got agitated. It was also suggested that he told her that he was phoning a friend to ask for a place to stay. The plaintiff could not recall these matters (other than telling Dr Spielman that the defendant had pushed him), but Dr Spielman’s notes of 15 June 2016 bear out this narrative.

During the course of the plaintiff’s re-examination, the plaintiff’s Counsel indicated that he wanted to rely upon the content of a video-recorded interview that the plaintiff conducted with an officer (whose name was not identified) from Kings’ Cross police. Upon objection being raised by the defendant’s Counsel, the plaintiff’s Counsel indicated that the purpose of the tender was to establish that the plaintiff had previously provided a complaint consistent with his earlier evidence that the defendant pushed him downstairs at, near or about the point of moving down the stairs.
The video recording of the interview with the police (Exhibit B) did indicate that this purpose of the tender was fulfilled. The evidence was admitted but was limited in its admissibility to the plaintiff’s credibility. Under further cross-examination, the defendant’s Counsel put that the evidence – given whilst the plaintiff was in hospital the day after the incident – was given when he was in pain.
A document that was produced in response to a subpoena to the Ambulance Service of NSW (an Incidental Detail Report) (Exhibit G) contained a comment inserted at 9:46pm (“21:46:12”) on the night of the incident containing the notation: “3. The fall was accidental.” In the light of the audio recording of the call that the defendant had placed with the ambulance, this description of the fall was plainly provided by the defendant.
Further, an audio recording of what the defendant told the ambulance service after the incident was played (Exhibit F). In it, the defendant relevantly said that her “husband had just fallen down the stairs” and referred to his crying (which was plainly audible on the recording) and feeling in a lot of pain. The defendant said that it was “an accident”. My recollection and note of the sound recording was that the defendant did not mention that she had pushed the plaintiff. My perception of the audio recording was that the defendant was relatively calm and composed when she spoke. I also perceived that she appeared concerned for the plaintiff’s health and welfare.

The defendant’s evidence

The defendant gave evidence that her relationship with the plaintiff started in about 2009. He moved in with her in March 2010. There was a proposal of marriage in 2012 (a matter which the plaintiff denied) and the defendant said that the plaintiff provided her with an engagement ring. She lived with the plaintiff more or less full time since then at her home in Rushcutters’ Bay.
In 2012, the defendant was a co-director of an art gallery. The gallery closed in December 2015 and the defendant decided to go out on her own: she took a lease of office space on 6 June 2016. The office space required substantial renovation to create a new gallery in which she was sole director. For this purpose, a builder and his team were due to undertake works over two days, on 8 & 9 June 2016. The defendant said that the plaintiff had volunteered to help.
The defendant recalled that the plaintiff had slept over at the home on the night of 7 June 2016 and woke up on 8 June 2016. She recalled that the plaintiff and she had walked to her art gallery early in the morning. There was renovation work being done. Builders were present from about 9:00am or 10:00am. She recalled that at one stage, the plaintiff had complained about wanting a mask and the work attitude of those builders. She recalled him complaining about doing dirty work. She also recalled that at about 12:00pm, the plaintiff had indicated his intention to go home. This caused friction: she did not want him to leave; and wanted his help. Eventually after going after him, she left him to go and she returned to her building.
She recalled that when she later came home, she found the plaintiff in his dressing gown, sitting on a sofa. She indicated to the plaintiff that she was unhappy that he had not prepared something for her to eat. She also expressed to the plaintiff that she was disappointed and upset with him that he had not helped her, or helped her sufficiently (to her mind) during the day. She said she was hurt by him when he walked away earlier in the day. The plaintiff accepted, at least, that she told him that she was upset. She denied any feeling of jealously toward Ms Golski or having any suspicion of any infidelity (of the plaintiff) towards her. She was not cross-examined on these denials.
The defendant recalled that she went to the fridge and took out a bottle of Moet champagne whose contents had partially been consumed in the celebration of her birthday two days before. The plaintiff prepared to share a drink with her as she ate her meal. She recalled that he opened a new bottle of wine, this being of the Yellowglen brand and said that he consumed the bottle by himself: she did not have any of the Yellowglen.
The defendant recalled that at one point she went upstairs to work on her computer, and when she was up there, she heard the plaintiff speaking on his mobile phone saying words to the effect that she was “ruining everything. I have to leave”.
The defendant recalled that at an indeterminate point, the defendant got changed. He put on a blazer jacket. She saw the plaintiff move to a table and took her engagement ring, which had been left with her other jewellery on a table. She saw him put the ring in the pocket of the blazer. She went downstairs and asked him for the ring, but the plaintiff refused to give it to her. He told her that she was “very selfish” and “did not deserve” the ring.
The defendant recalled that the plaintiff went upstairs and went into the bathroom. She told him that she wanted her ring back. He closed the bathroom door. She opened it. The plaintiff accepted these matters.
The defendant recalled that at a point when they were both in the bathroom, the plaintiff had his back turned to her and they were talking. The plaintiff recalled that she was screaming at him, calling him names, such as ‘idiot’ or ‘maniac’. The defendant recalled that they were talking about the ring.
The defendant recalled that whilst his back was turned to her, she put her arms around his waist and tried to turn him around so that he could face her. In response, the plaintiff pushed her into a corner of the bathroom (facing the door). She recalled that he put his hands around her neck; although there was no hard pressure. She did, however, feel trapped. She pushed him in the chest to get him away from her. She could not recall whether she used one or two hands.
The defendant recalled saying to the plaintiff that he had better be careful (towards her) “because of your AVO”.
The defendant said that after these events had occurred, the plaintiff ‘stormed out’ of the bathroom and moved quickly towards the stairs. However, he slipped. She saw that his right foot was placed at an awkward angle on the second step. She made these observations whilst she was at the doorway of the bathroom.
She could not recall what position the plaintiff was in after he fell. After the plaintiff’s fall down the steps, the defendant said she came down the steps (slowly, because of her arthritic condition), crouched down alongside him and asked him if he was okay. She said he was crying. She observed that he was conscious. The plaintiff recalled that she rang the ambulance. The defendant said this would have been about 5 minutes after the fall but the plaintiff thought that the time interval was longer (15 minutes).
The defendant said that when she rang the ambulance she informed whoever it was she spoke to that the plaintiff had slipped down the stairs and fell. She could not recall what else she said.
After the ambulance had left, the defendant said she rang Ms Golski. She told her that the plaintiff had slipped. She recalled that the conversation lasted for only about a minute. She had no further contact with Ms Golski.
The defendant tendered two photographs (Exhibit 2) being taken well after the event in question, which depicted the distance between the logjam of the bathroom of the door (where she said that she was standing at the time of the plaintiff’s fall) and the top of the stairwell. The photographs were taken from different directions. The gist of the evidence, as I understood it, was that the distance between the entrance to the bathroom and the top step of the stairwell was about 2.7m. It was put to her that the measurement overstated the distance but she adhered to her evidence.
In cross-examination, the defendant’s account was generally challenged on the basis of suggested differences or discrepancies between her evidence in chief and what she said to the ambulance officers or police nearly four years before. It was put to her that her evidence about what she said to the ambulance officers (that the defendant had slipped down the stairs) differed to what she had earlier said that he had pushed him down the stairs. It was put to her that, in contrast to her evidence in chief, she did not tell the police that she had informed the plaintiff that he was subject to an AVO whilst she was in the bathroom; nor had she told the police about her concern about the plaintiff taking the engagement ring.
It was suggested that by her evidence, she must have left the plaintiff at the bottom of the stairs for a very long time after he fell, or at least left it a long time before she called the ambulance. It was put to her that she told the police certain things about how the fall occurred, but the defendant said she did not recall what she told the police; rather she answered the questions that she was asked truthfully. Counsel suggested that there was a discrepancy between her evidence that she pushed the plaintiff in the bathroom and her evidence that she pushed him out of the bathroom.
The defendant was charged and interviewed by the police. The plaintiff’s Counsel sought to attack the defendant’s credibility by reference to the account she gave to the police, in a video-recorded interview days after the incident. A significant extract of that interview was played to the Court.
Materially, she told the police that she had pushed him on the chest whilst they were both in the bathroom. This was after she had tried to turn the plaintiff towards her (to face her front on) and after he responded to that attempt by placing his hands around her neck. She continued to say that that the plaintiff then walked out of the bathroom ‘in a rage’ and towards the stairs (whilst the defendant remained in the bathroom); and that as he reached the second step he slipped and slid down a few steps; before he attempted to grab hold of the rail and slid to the bottom landing of the steps.
She told the police that the bathroom door was about 2 metres from the top of the stairs and that, at the time she pushed him (on the chest), he was about 3 metres from the top of the stairs.
She indicated that she had never pushed anyone before.

Credit

I was generally impressed with the defendant as a witness. Under cross-examination, she was concise and considered in her answers, which indicated to me that she had listened very carefully to the questions asked of her. To this there was an exception: at one point early in her cross-examination, she denied that she told the police matters that were put to her (as to how the plaintiff exited the bathroom) when the recording suggested that she had. But that was the exception; and not the rule. She was subjected, in effect, to a series of memory tests not so much as to what happened in relation to the incident, but rather what it was that she had said to the ambulance or to the police after the incident had occurred. Although there may not have been an identical correspondence between her account of what occurred and what she said to ambulance or police, it did not strike me that there was any material inconsistency which was exposed. This point will be developed further below (see paragraph 83). What she said in her earlier accounts (to ambulance or police) needs to be considered in the context of those earlier accounts. Thus, when she spoke the ambulance, she was not intending to give a full narrative account of what occurred; and, as Mr Grech said, his primary concern was to elicit an understanding and record his observations of the plaintiff’s state of health after the fall. The situation called for urgency. What she said to the police (voluntarily, in interview) was in the context of an incipient criminal investigation.
I also accept the submission of the defendant’s Counsel that the circumstance that she had been willing to make admissions augments her credibility. This was, most obviously, the admission that she pushed the plaintiff. She also admitted that he fell down the stairs. On her account, she did not believe that the push caused the plaintiff to fall down the steps, but she said (to the ambulance and the police) that she pushed him anyway. Viewed in retrospect, she may have anticipated that the plaintiff would complain about his being pushed, the plaintiff did not himself complain about the push to the ambulance and she was not made privy to the plaintiff’s account when she gave her account to the police. In other words, she did not need to incriminate herself by admitting that she pushed him: she could have explained the plaintiff’s fall simply on the basis that after a heated argument, the plaintiff slipped down the stairs. No one else saw how the fall had occurred. Accordingly, the plaintiff has to accept that in her explanation for the fall, her account was at least partly truthful; just not completely so. On more minor matters, she gave evidence which was not flattering to her or, alternatively, would have been awkward for her to give: she accepted, for example, that she had said to the plaintiff that she “hated” him when they were in the bathroom; and she recalled hearing the plaintiff saying to a person on the phone that she was responsible for “ruining everything” and telling the defendant, separately, that she was “very selfish”. She did not flinch when giving this evidence. Once, as I note further below, other aspects of her account – both of them having an argument in the bathroom and the plaintiff’s own (mis)conduct in putting his hands around her neck and manoeuvring her into the corner of the bathroom – are accepted, then the balance of her account appears yet more plausible. Further, the account is reinforced by the objective circumstance that the plaintiff was in fact subject to an AVO, which provides some (perhaps slight) support for her evidence that the plaintiff had his hands around her neck, which might explain why she pushed him.

DETERMINATION

Did the defendant push the plaintiff?

There is no doubt, and I so find, that the defendant pushed the plaintiff whilst he was upstairs. She admitted as much to the paramedic, Mr Grech; and to the police. When she gave her evidence in the trial, she also admitted that she pushed the plaintiff; albeit that she said that the push occurred in the bathroom and in response to what she was said was violent conduct by the plaintiff.
The plaintiff’s evidence is also supported by the contemporaneous evidence of his complaint of being pushed, which I referred to earlier. I find that the act of pushing was also intentional. This is significant to the question of what regime for damages is applicable.

Did the defendant intend to injure the plaintiff?

The significance of the question

Ordinarily, a claim for damages for negligence would be governed by the provisions of the Civil Liability Act 2002 (NSW) (in Parts 1A and 2, relating to liability and damages, respectively). However, since the personal injury was allegedly caused by the push, and notwithstanding that the action is framed in negligence, rather than trespass to the person (i.e. a battery), any award for damages might fall to be assessed under the common law. This is because of s 3B(1)(a) of the Civil Liability Act, which generally excludes from the operation of the legislation claims for damages arising from civil liability of a person “of an intentional act that is done” by the person “with intent to cause injury”. In this regard, it is the character of the act that gives rise to the civil liability, and the person’s intent in doing that act[3] . In Fede v Gray by his tutor New South Wales Trustee and Guardian [2018] NSWCA 316 McColl JA [4] held (at [119]) that the onus of proof was on the plaintiff to establish that s 3B(1)(a) applies. That means that it is for the plaintiff to establish that his claim is to be determined under the common law, unmodified by the Civil Liability Act. This requires him to prove not only that the defendant engaged in an intentional act (pushing him), but also that she did so with the intent to injure him.
3. Croucher v Cachia [2016] NSWCA 132 per Leeming JA at [33]; Dean v Phung [2012] NSWCA 223 per Basten JA at [10].
4. Her Honour ultimately dissented in the result, but not in relation to this statement of principle.
There is a question as to what suffices to establish the defendant’s intention of causing injury in this regard. I considered this question recently in Dickson v Northern Lakes Rugby League Sport & Recreation Club & Anor (No.2) [2019] NSWDC 433 at [96]-[102] where I concluded that it was necessary for the plaintiff to establish that the defendant meant to produce the result (i.e. the injury to the plaintiff) and, further, that recklessness was insufficient to establish the requisite mental state.
By paragraph 12 of his Statement of Claim, the plaintiff alleged that the defendant pushed him with the intention of causing physical injury to him. Possibly in reinforcement of the allegation in paragraph 12, the plaintiff also pleaded (by paragraphs 13 and 14), that the stairs, and the floor at the bottom of the stairs of the home, were constructed of hardwood and lacquered with no carpet or covering. The insinuation is that nothing on the stairs or the floor would have cushioned the plaintiff’s fall; making it more likely that he would be injured if he fell down the stairs. As it later transpired, the uncontradicted evidence of the defendant indicated that the steps were carpeted at the time of the fall.
The defendant’s position, as it emerged through the trial, is that although she intended to push the plaintiff; she did not do so meaning to produce the result that the plaintiff would fall down the stairs. She only meant to push him in response to the plaintiff placing his hands around her neck. This argument appeared to amount to a contention that the defendant acted in self-defence. However, the defendant did not plead the statutory provisions relevant to self-defence which are contained in Part 7 of the Civil Liability Act [5] . Those provisions can apply even if s 3B is engaged [6] ; that is, even where it is the common law that determines whether and to what extent damages are recoverable. But in my view, even if the defence of self-defence (or limitation of damages on account of that purported defence) may not be available, the defendant is not precluded from relying upon the same circumstances to negate a finding that she intended to injure the plaintiff.
5. Presidential Security Services of Australia Pty Ltd v Brilley (2008) 73 NSWLR 241 at [162].
6. Croucher v Cachia at [40] & [89].
The plaintiff submitted that I should not accept the defendant’s position. It was, he submitted, riddled with inconsistencies in the accounts that she gave the police. The inconsistencies were in her telling the police, at different points throughout her interview, that she pushed the plaintiff “in the bathroom”, that she pushed him “out of the bathroom” and/or that after having pushed him in the bathroom, the plaintiff “stormed out of the bathroom”. It was also suggested that there was inconsistency between the defendant’s evidence at trial, where she testified reminding the plaintiff, whilst in the bathroom, that he was subject of an AVO. There was no reference to that in the narrative that she gave to the police shortly after the incident.

The plaintiff’s Counsel submitted that, by contrast, the plaintiff had provided a consistent narrative. That narrative was supported by evidence of an admission given by Ms Golski, to the effect that the defendant admitted pushing the plaintiff down the stairs. It was submitted that, to a lesser degree, the plaintiff’s account received some support from the evidence of Mr Grech and what the latter recorded on the ambulance report.
As to why the defendant would wish to injure the plaintiff, the plaintiff submitted that her action was in the heat of the moment: they had had a heated argument. It was enough to establish intent to injure at the time of the push – it was irrelevant that the defendant may have subsequently regretted her conduct. The defendant had, by her account, followed the plaintiff upstairs into the bathroom. She was harassing him.

Determination

The factors influencing my determination in respect to this question are as follows. First, I have noted that it is the plaintiff who carries the onus of proving that the defendant pushed him with the intention of injuring him.
Secondly, although that allegation is proved on the balance of probabilities, it is a very serious allegation (tantamount to assault occasioning actual bodily harm[7] ) and therefore must be weighed against the criteria set out in s 140(2) of the Evidence Act1995 (NSW); including (but not limited) to the Court being actually persuaded that she intended to injure him[8] . Self-evidently, the standard of proof is not proof beyond reasonable doubt. But in the context of s 140, where the competing possibilities are of equal likelihood, or the choice between them can only be resolved by conjecture, the allegation is not proved[9] .
7. Crimes Act 1900 (NSW), s 59.
8. ASIC v Hellicar (2014) 247 CLR 345 per Heydon J at [255].
9. Palmer v Dolman [2005] NSWCA 361 at [41]; also Westbus Pty Ltd (Administrators Appointed) v Ishak [2006] NSWCA 198 at [20].
In this regard, I give some weight to the defendant informing the police that she had never pushed anyone before. No evidence was adduced by the plaintiff to suggest that she had any general violent tendency. I recognise that there is always a possibility that persons of good character and with a spotless record may react violently in the heat of the moment under circumstances of extreme stress. But I also take heed of the High Court’s observation concerning the standard of proof under the general law, in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at [170]-[171], that there is a “conventional perception that members of our society do not ordinarily engage in…criminal conduct and…a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.” [10] In the audio recording taken of her when speaking to the ambulance, in her interview with the police, and in her evidence, I was struck by the defendant’s calmness. I also note that prior to the incident, the defendant has been a company director. I would not lightly infer that she would ‘fly off the handle’, emotionally, all that easily. The only explanation provided by the plaintiff as to why she was angry with the plaintiff was that she was jealous about his friendship with Ms Golski. But the defendant denied such emotion and that denial was unchallenged. I recognise, again, that even the most composed of individuals may act in violent ways in certain circumstances. I regard as more convincing the defendant’s account as to why she was in an emotional state: she was upset with the plaintiff for what had gone on during the day and that she was even more upset that, according to her account, he had taken her engagement ring. The plaintiff’s relationship with the defendant was somewhat fraught in in the first half of 2016: they had undergone counselling. There was no suggestion of any violent tendency from the defendant during this period (unlike the plaintiff). I am not persuaded that these reasons for the defendant’s emotional state were of such intensity, even in the heat of argument, that they would likely impel her to push the plaintiff down the stairs.
10. The observation was cited with approval, in the context of s 140, in Palmer v Dolman, at [47].
Thirdly, I accept the submission of Counsel for the defendant that given the way the issue was framed by the arguments, there is very little leeway that can be given with the marked differences of account between the plaintiff and defendant. Put another way, credibility looms large. I have explained why I would generally prefer the evidence of the defendant over the plaintiff where there was a conflict. Contrary to what was submitted on the plaintiff’s behalf, I did not see material inconsistency in the accounts given by the defendant to the police. In particular, when she said that she pushed him ‘out the bathroom’, I did not interpret that to mean that the place where the push occurred was outside the bathroom. When she said, somewhat melodramatically, that the plaintiff “stormed out” of the bathroom, I did not regard that as being inconsistent when she said that she pushed him out the bathroom. I did not interpret the latter reference as being literal, in the sense that the plaintiff actually fell from inside to outside the bathroom; but rather that she pushed him in the direction that he was heading; namely, outside the bathroom. It seemed to me that what the defendant was saying was that the defendant, whilst inside the bathroom, pushed the plaintiff, who was at the time also in the bathroom; and who fell towards the direction of the bathroom door, but inside the bathroom; and that thereupon, the plaintiff then got up, left the bathroom and, in an emotional state, moved to go downstairs where he fell of his own motion. The most material aspect to this account and one upon which the defendant never wavered, was that her push occurred inside the bathroom. Generally, I considered that there was a marked consistency between the account the defendant gave the police and her evidence at trial.
The plaintiff’s case that the defendant intended to injure him is based entirely upon acceptance of his evidence that the push occurred at the point (upstairs) of the stairwell. If I accepted the plaintiff’s version of how and where the push occurred, it would be a short step to conclude that the defendant pushed him with the intent of injuring him (i.e. contemporaneous to the time of the push). Creating a situation where a person falls down a flight of stairs is an obvious means of causing injury. But in this case, there is a competing and indeed, to my mind, a more plausible alternative explanation for why the defendant pushed the plaintiff, and a plausible alternative explanation for where that push occurred; given by the defendant. In this regard, the most natural explanation for her intent in pushing the plaintiff was to liberate herself from the feeling of being trapped inside her bathroom. In retrospect, it might be said that she could simply have asked the plaintiff to remove his hands and to allow her to get out of the bathroom. But in the emotional maelstrom that the defendant found herself – in a context where the plaintiff had a subsisting AVO against him – it is not surprising that she might push him out of her way. Viewed, in this light, the push followed the plaintiff putting his hands around her neck and having manoeuvred the defendant (by pushing her) into the corner of the bathroom, as far as way as possible from the door. Counsel for the plaintiff accepted that he did not really challenge this part of the defendant’s evidence: at most, there was some questioning as to the timing for when this occurred according to her version.
Given the (at least) equal (and I think greater) likelihood that the push occurred in the bathroom, I accept that there was a distance of approximately 3 metres from where the push occurred (within the bathroom) to the stairwell. There are doubts whether the act of this defendant in pushing this plaintiff could have caused the plaintiff to fall down the stairs, on the premise that the push occurred in the bathroom (which I will return to below in the section on causation). That makes it even less likely that she intended to injure him by pushing him if the means by which that injury were to occur involved him falling down the stairs – it was not part of the plaintiff’s case that any push by her in the bathroom could result in him injuring himself in the bathroom.
The evidence of Mr Grech, his ambulance record and the audio recording of what the defendant told the ambulance do not give rise to any clear admission that the defendant pushed the plaintiff at the point of the stairwell. The evidence was ambivalent as to where the push occurred.
Further, the findings that I have made do not require the rejection of Ms Golski's account of what the defendant said to her. Even if I was to accept her account that the defendant had admitted to her that (a) she had pushed the plaintiff and (b) the plaintiff had fallen down the stairs, this does not amount to an admission that the push caused the plaintiff to fall down the stairs. In the terms in which Ms Golski recalled the conversation, it was no different, in substance, to the account that the defendant had given to Mr Grech.
With the evidence of these other sources being equivocal as to where the push occurred and what resulted from it, the plaintiff is left to rely upon the Court’s acceptance of his evidence. It is true that the plaintiff has consistently maintained that he was pushed, from behind, at the point of the stairwell. But I have noted my reservation of his reliability generally, including his disposition for blaming the defendant for his woes.
I am not persuaded that the defendant pushed the plaintiff with the intention to injure him.
The result of this determination is twofold: first, the plaintiff has not made out his allegation that the defendant’s push occurred whilst he was at the point of the stairwell. Secondly, the applicable regime to determine the defendant’s liability, such as it may be, are the provisions in Part 1A of the Civil Liability Act and the applicable regime to determine any damages is Part 2 of the Civil Liability Act.

BREACH OF DUTY

There was very little said, by either party, as to the requirements for establishing an action in negligence under the Civil Liability Act.
Consistent with his apparent view that the liability issues are to be determined in accordance with the common law, the plaintiff did not, in his pleading, refer to the matters set out in ss 5B-5C of the Civil Liability Act in his pleading. For that matter, he did not really attempt to plead the matters necessary to sustain an action in negligence as those requirements were laid out in the common law either.
He did, however, state in his pleadings (at what was erroneously identified as paragraph 12) the particulars of negligence as comprising the defendant’s:

assaulting the plaintiff;

failing to provide for the safety of the plaintiff; and

failing to provide assistance to the plaintiff.

There was nothing placed before the Court to indicate that the defendant took issue with the adequacy of these particulars.

The parties’ submissions

The defendant disputed the existence of a duty of care at all. Her position was that the push did not cause injury; as it had occurred in the bathroom. That being so, once the push occurred, there was no further foreseeable (or ‘not insignificant’) risk that was created that invited a response from a reasonable person in the defendant’s position as set out in s 5B(2) of the Civil Liability Act; which substantially reproduces the Wyong Shire Councilv Shirt calculus under the common law.
The plaintiff submitted that, in circumstances where the parties were arguing, where both parties had been drinking, where the plaintiff was a man in his 60s (known by the defendant) and where they were, at least, not far away from the stairwell, there was a foreseeable and not insignificant risk, even on the defendant’s account of what had occurred, that if she pushed the plaintiff, this would cause the plaintiff to fall down the stairs. In putting the matter in that way, I understood that the plaintiff was saying that the duty of care which arose was situational, in the sense that it did not arise from any status relationship between plaintiff and defendant.

Determination

I am prepared to proceed on the basis that ordinarily an occupant of a residence knows, or should reasonably foresee that her conduct may cause physical injury to a fellow occupant may owe that co-occupant a duty of care – reasonable foreseeability is generally enough[11] .
11. D’Orta-Ekenaike v Victoria Legal Aid (2005) 233 CLR 1 per McHugh J at [101].
However, the common law has been generally reluctant to impose unreasonable burdens upon individuals to protect their legitimate interests or autonomy and where the imposition of a duty would conflict with a person’s autonomy. This is a circumstance that militates against the imposition of a duty of care[12] . An associated principle is the need for coherence in legal principle[13] . Arguably, there may be seen to be some incoherence in a result which would see liability arise from a push where the push was deployed in the defendant’s endeavour to free herself from the sense of entrapment the plaintiff had put her in.
12. Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 per McHugh J at [78]; Perre v Apand Pty Ltd (1999) 198 CLR 180 at [114]-[117].
13. Sullivan v Moody (2001) 207 CLR 562 at [55].
As I have indicated, I consider that the defendant’s account of the incident as having more probably occurred. On that premise, I am satisfied that when she pushed the plaintiff, she did so in circumstances where she was in the corner of the bathroom with the plaintiff’s hands on her neck and in the context where the plaintiff was subject to a subsisting AVO for the defendant’s protection or benefit.
Although, as I have previously noted, no defence of self-defence was pleaded by the defendant in her Defence, I do not consider myself precluded from finding that in the circumstances, when pushing the plaintiff away, the defendant was acting in a fashion to free herself not only from his physical contact against her, but also from the constraint the plaintiff had imposed upon her to freely move about her own home.
This did not confer a licence upon the defendant to do anything to liberate herself in this way. I note, again, that self-defence was not raised which, if such defence been alleged and proven might have immunised the defendant altogether from any liability. On balance, I am satisfied that the defendant owed the plaintiff a duty of care.
This then leads to consideration of the requirements of ss 5B (and 5C to the extent appropriate) of the Civil Liability Act to venture whether, on the hypothesis that a duty of care was owed, it was breached. As I have indicated, there was little articulation in the parties’ respective positions in relation to these considerations, most notably the identification and quantification of the ‘risk of harm’, for the purposes of s 5B(1) of the Act. It seems to me that the risk of harm here is that in reaction to the defendant’s physical attempt to free herself in the bathroom, the plaintiff would injure himself by falling down the stairs. Stated at that level, I consider the risk of harm would be foreseeable: it was a risk that the defendant ought to have known about. It was possible, for example, that this plaintiff, in this plaintiff’s circumstances might fall down the stairs as a result of physical contact by the defendant within the bathroom. On the other hand, I am not satisfied that the risk of the plaintiff falling down the stairs as a result of the defendant’s conduct in the bathroom is “not insignificant”. That is to say, it struck me that the risk of the plaintiff falling down the stairs as a result of anything the defendant did in the bathroom to be far-fetched.
If I am wrong in this, I propose to briefly say something about the particulars of negligence that are referred to in the pleading, which are more directed to s 5B(2).
As to the first of those particulars, it would be unusual that a reasonable response to a risk of harm would be to assault someone. But on the facts, the defendant did not ‘assault’ the plaintiff in the legal (tort) sense of creating an apprehension of the imminent commission of a battery, combined with a capacity to carry that intention into effect[14] . At any rate, it does not strike me that the defendant acted unreasonably, when in response to the conduct of her partner (itself involving a battery) who was also the subject of an AVO and was in such an emotive state that he had his hands against the defendant’s neck and impeded her freedom of movement in her bathroom, to push the plaintiff away from her. I am not persuaded that a reasonable person, in this defendant’s position and circumstances, would have acted any differently. It might have been different, for example, if the defendant sought to use an implement in the bathroom as a weapon to defend herself in self-defence. Perhaps that might have generated a risk that the plaintiff might stumble down the stairs. But that is not this case. The Court is dealing with a mere push.
14. New South Wales v Ibbett (2006) 229 CLR 638 at [18].
As to the second particular, of failing to provide for the plaintiff’s safety, by its terms, it is unclear to me what this actually means. An occupant of a home is not an insurer of a co-occupant’s safety. It seems to me that this is another way of stating that the defendant owed the plaintiff a duty of care. I reiterate my difficulties in accepting that such duty was owed in these circumstances.
As to the final particular, a failure to render assistance, this is not a complaint about responding to a risk to prevent the risk materializing, but rather a complaint about the response after the risk has materialized to reduce the extent of the injury. It is, as will later be noted, relevant to a claim for aggravated damages, but I struggle to see its relevance to the issue of breach.
In short, I find that the plaintiff has not established that the defendant breached the duty of care as alleged.

CAUSATION AND PERSONAL INJURY

I address these issues on the contingency that I am wrong in my determination that there was no breach of a duty of care.
The plaintiff carries the onus of proving all matters relevant to causation: ss 5D – 5E of the Civil Liability Act. There are two questions which are to be considered here. First, on the facts that I have found which led to the push, whether the push caused the plaintiff to fall down the stairs and injure himself. Secondly, whether by falling down the stairs, the plaintiff suffered personal injury.
If I accepted that the defendant’s push caused the plaintiff to fall down the stairs, I would have found that the act of pushing caused physical injury.
The balance of the analysis in this section is predicated upon the posited circumstances that (contrary to what I have actually found), in pushing the defendant (in the bathroom), the defendant acted negligently.

Did the push cause the fall down the stairs?

Beyond the competing accounts of the plaintiff and defendant as to where the push occurred, there were several contextual circumstances of note.
Relevant to the question of how the plaintiff’s fall occurred, I find that at the time that the plaintiff fell he was in fact intoxicated. This is recorded in the ambulance record (sourced from what the plaintiff himself had indicated to Mr Grech) and the relatively contemporaneous hospital records and this was not simply the subject of a reference by the defendant.
Secondly, the relationship between plaintiff and defendant was in a relatively fragile state – putting aside the immediate dispute that had occurred during the day about the extent of the assistance that the plaintiff had rendered to the defendant in relation to the renovation of the gallery space. There was an AVO carried out against the plaintiff earlier in 2016 for the defendant’s protection. As I note further below in the section of the reasons concerning the plaintiff’s psychological injuries, by June 2016, virtually at the point when the incident occurred, a psychologist, Ms Stark, had reported upon the plaintiff and defendant joining in ‘Interpersonal Therapy’, as a couple, to deal with the plaintiff’s anger and despair. Even suicidal ideation was mentioned by him; although the psychologist noted that the plaintiff had assured her that he had no real intention in that regard.

I also consider that throughout the ‘incident’ inside the bathroom, the plaintiff (and the defendant) were both in an emotive and agitated state. In the case of the plaintiff, he had been recorded two years earlier as being diagnosed as suffering from mental health disorders (PTSD and depression) which would not have assisted him to regulate the emotional state he was in during that evening. His level of intoxication would also not have assisted him in this regard. The psychologist, Ms Stark, noted that he had a sense of shame after being subject to an AVO (see paragraph 151, below). On the night in question, I suspect that this would have been compounded after having his hands on his partner’s neck.
If, as I am inclined to think is more likely, the defendant’s push occurred inside the bathroom, I am not persuaded that her act of pushing, without more, would have caused him to lose his balance on the stairs and fall down them. I accept the defendant’s evidence that the distance between where she was at the time she pushed the plaintiff was in excess of 3 metres, or in excess of 2.5 metres from the stairwell if the distance is measured from the entrance to the bathroom. Without any disrespect to him, to my (layperson’s) observation the plaintiff appeared to me to be of above average weight for a man of his age. In the absence of expert evidence, I am not persuaded that the force exerted by the defendant was such that she was physically capable of pushing the plaintiff from inside the bathroom as to cause him, without more, to fall down the stairwell.
I consider that it is most probable that the plaintiff was pushed and fell in the bathroom. He exited that room in an agitated and emotive state, and was under the influence of the alcohol that he had recently consumed. He possibly felt a sense of shame or at least further turmoil in his putting his hands around the plaintiff’s neck; which, I expect, he would have been conscious that he was in (apparent) violation of the AVO. In this turbulent state of mind, he moved towards the stairs and lost his balance on one of the top steps. This loss of balance caused him to fall.
I consider that the defendant’s push was part of a matrix of circumstances that created the opportunity for this this result to occur, but it was not a ‘necessary condition’ of the fall (s 5D(1)(a) of the Civil Liability Act). Whether he was pushed or not, in my view, it is likely that he still would have exited the bathroom in a highly agitated state, still under the influence of alcohol; and probably still also with a compounded sense of shame. The circumstance that he had been pushed in the bathroom did not make it more or less likely that he would stumble on the top part of the stairs.
The causal link between the push and the fall is not established on the balance of probabilities.

The plaintiff’s injuries and disabilities

The plaintiff’s evidence

The above finding is my conclusive answer on the causation inquiry but, again, if I am wrong, it is pertinent to consider the extent of the plaintiff’s injuries and disabilities resulting from the fall and, thereafter, to consider the quantum of damages.
Over the objection of the defendant, the plaintiff gave a personal description, or more accurately his perception, of his injuries. Plainly, such account was from a lay person and was a limited substitute for the diagnosis of medical professionals. His account was at any rate relevant to his claim for general damages (or non-economic loss, under the Civil LiabilityAct).
The plaintiff described himself as suffering from a “symphony of pains” whilst in hospital. It was, he felt, a “disaster”. He said he felt pins and needles in all his fingers, especially his right fingers. He says he felt ‘neck deformation’ and ‘arm deformation’. When I asked him what he meant by those expressions, the defendant said he felt pain and sleeplessness. He referred to pain in his back as well.
The plaintiff said that he was not socialising now. He said all of his friends were orchestral. He said that they were ex-friends, though he did not elaborate as to why this should be so. He did not go out to the theatre any more. He was frequently visiting medical practitioners.

Nadya Golski’s evidence

I referred to part of the evidence that Ms Golski gave earlier relating to the circumstances of the plaintiff’s fall.
She also gave evidence comparing the plaintiff’s capacity to play the guitar before and after the subject incident. Further, she gave evidence of seeing him in hospital the day after the incident in question (9 June 2016) and her involvement, or the involvement of others close to her, in trying to get a neurosurgeon to see the plaintiff. She gave evidence that the plaintiff had complained to her about numbness in his fingers. She also recalled seeing him shaking his hands after the incident, trying, to her mind, to get his sensation back.
Under cross-examination, Ms Golski initially said that following the incident, the plaintiff had stopped playing the guitar altogether. When it was suggested to her that he had at least played the guitar with her in April 2017 at Erskineville and at a festival in 2017, Ms Golski accepted, I considered rather grudgingly, that he had played the guitar: she explained that although he may have been able to play the guitar in a physical sense, she meant that he was not ‘playing’ to the same standard she had observed prior to the incident; and that where he did so, the events were small scale. This change of tack was one demonstration, in my view, of her giving evidence which she thought might assist the plaintiff.

The Ambulance record (Exhibit A)

I referred to this document earlier when considering Mr Grech’s evidence. Relevantly, the record indicated the plaintiff’s complaints to him about pain in his right shoulder and his left forearm; as well as palpations in the lower central back. There was also a notation ‘Nil LOC’ which Mr Grech explained was a statement, which he attributed to the defendant, that following the fall, the plaintiff had not suffered any loss of consciousness. Further, there was a notation ‘Nil Evident Injury’; which appears to be an entry that Mr Grech had inserted.

Records annexed to the Statement of Particulars (Exhibit D)

The plaintiff annexed the medical evidence he relied upon to his Statement of Particulars dated 31 May 2019.

June 2016

The plaintiff was admitted to St Vincent’s Hospital on 8 June 2016 after his fall. He was discharged on 10 June 2016 and was prescribed a range of medications at that time.
The plaintiff was generally diagnosed as having suffered a soft tissue injury. Notes prepared by Dr Sarah Cohn indicated that he had been found to be tender at the C7 on the right side of the spine, and along his right clavicle to the right shoulder. There were no other positive findings on examination.
On 9 June 2016, various x-rays and CT scans were taken of the plaintiff. Imaging was inspected and no acute injuries were found. A radiologist (Dr Ali) noted that there was no fracture observed of his pelvis, his right humerus, shoulder or his clavicle. There was no fracture of the skull.
There was some degenerative disc disease (notably at the C6/C7) concerning the cervical spine and, to a lesser extent, C5/C6 and C7/T1, but there was no fracture. As to the plaintiff’s lumbar spine, there was no fracture. Some mild to moderate anterior discovertebral osteophytosis of T9/T10 was discovered.
The radiologist concluded that there was no acute intracranial pathology, and no fracture was demonstrated. There were certain degenerative changes as described.

August 2016

The plaintiff presented to the Emergency Department of St Vincent’s Hospital over two months after the incident, complaining of neck pain. A report dated 16 August 2016 indicated that an examination of the cervical spine revealed ‘nil tenderness’ upon palpation and passive movement of the neck. There was tenderness elicited upon all active movement of the neck.
The impression was that there was right cervical radicular pain secondary to cervical spine injury in the context of the plaintiff’s fall. Consideration was given to his referral to a neurosurgeon.
A report by Dr John O’Neill, a clinical neurophysiologist, dated 13 September 2016, found no neurophysiological support for right ulnar neuropathy.

Further investigations – September-October 2016

Clinical notes of a MRI of the plaintiff’s right brachial plexus dated 21 September 2016 were in evidence but were not comprehensible without the interpretation that might have been given by the author of the notes or another medical professional.
An MRI of the plaintiff’s left hand was undertaken on 25 October 2016 following the plaintiff’s complaints of left thenar muscle pain. The MRI revealed that there was a small amount of fluid in the flexor pollicis longus tendon sheath which may have been attributable to a mild tenosynovitis. This was thought to be degenerative in origin. A sprain of the dorsoradial and posterior oblique ligaments of the first carpometacarpal joint was also observed.

Psychological Concerns

The plaintiff relied upon a letter from Ms Monica Schweickle, a clinical psychologist. The report was dated 7 November 2016, 5 months after the incident. The report was avowedly prepared to support the plaintiff’s application for a Victims Services Recognition Payment. It was hoped that the payment might assist the plaintiff to attain more suitable accommodation and resources to support him.
Ms Schweickle noted that she had been counselling the plaintiff over the past 7 weeks. She said that he was experiencing Major Depression and Post Traumatic Stress-Disorder; but did do so without enumerating the criteria of those particular conditions that were applicable to the plaintiff’s condition. No indication was given to the extent to which, if at all, prior diagnoses of PTSD or depression, before the fall, was considered by Ms Schweickle or, if they were, what relevance they had to his situation as at November 2016. No reference was made to what form of counselling was provided. There was no evidence of any supporting medication being prescribed.
Much of the opinions in Ms Schweickle’s report were based solely upon acceptance of the history furnished to her by the plaintiff, which, strictly, went beyond the application of her specialised knowledge, but she did corroborate evidence that the plaintiff gave at trial about his concerns about his inability to play music and his experience of housing stress (which was not mentioned by him at trial).
Ms Schweickle commented upon his social withdrawal, his loss of motivation and interest and his ‘very depressed’ mood; which were exacerbated by his housing situation at the time. No evidence was given by the plaintiff about his housing situation or its effects upon his state of mind at trial.
In his evidence, the plaintiff said that he was seeing a psychologist, Mr Adrian Hall for more than 1 year. He thought that Mr Hall’s assistance to him was very helpful, to address his sensitivity and lack of optimism.
Some of the cross-examination of the plaintiff centred around the damaging effects, to his mental health, from his experiences of the Bosnian-Serb conflict in the early 1990s. During the war, the plaintiff was a music teacher who lived in Zenica, about 80km west of Sarajevo. The plaintiff recalled that bombing took place in Zenica during the war.
The plaintiff was referred to various consultations with Dr Spielman in 2013 and 2014 in which there were discussions about his dark feelings, low mood and depression. He had mentioned his being exposed to the horrors of war and its life-threatening aspects.
It appears that in 2014, he saw a psychiatrist, Dr Kecmanovic, who had diagnosed him with PTSD. It also appears that this diagnosis was relied upon, in part, to support a claim for a disability support pension. I will return to the topic of the application for this benefit shortly.
Finally, some pre-admission notes from St Vincent’s Hospital dated 16 November 2016 were relied upon. They revealed that the plaintiff was scheduled to receive treatment from Dr Janker, however, the nature of that treatment did not appear on the face of the notes. It later became apparent (from the medical report) that the procedure related to a right posterior cervical foraminotomy and microdiscectomy performed by Dr Janker.

Dr Spielman’s records (Exhibit H)

Both parties relied upon documents which were produced on subpoena by Dr Karen Spielman, a general practitioner practising in Paddington. They generally indicated an association with the plaintiff from about 2011 (which extended well beyond the date of the incident) to 2019. More specifically, the records revealed a diagnosis of ischaemic heart disease dating back to at least 2011, and diabetes. These conditions were treated with prescriptions for medicines and the plaintiff was regularly reviewed.
Other notable matters arising from these records included the plaintiff’s complaints of ‘tension type headaches 5 days out of ten’ and tenderness in the neck, combined with low mood and an appearance of depression (March 2013), an inability to sleep without Valium, depression and cervicogenic headache (May 2013), low mood and depression (April 2014), ‘existential angst’ and a sense of feeling unmotivated (July 2014). They referred to the plaintiff being thrown out of the home by the defendant and his sleeping on the streets for two nights and feeling very isolated upon his return to the family home as he contemplated going to Europe (October 2014). The plaintiff did travel to Europe for a month, and upon his return, he expressed his unhappiness with his relationship (January 2015). He appeared happier with his music in the first half of 2015. By August 2015, he indicated that he had separated from the defendant and was on the lookout for low cost housing. Dr Spielman’s notes record that it was from January 2016 that he had moved out and separated and that the defendant had taken out an AVO against the plaintiff. This caused stress to the plaintiff.
The plaintiff appeared happier in April 2016. He had returned from a European trip, travelling for some part of the time with the defendant. He was back home staying at her place. The next notable event recorded in the general practitioner’s notes was the incident.
In March 2016, Dr Spielman provided a referral to the Access to Allied Health Psychological Services for 5 sessions of psychological support. A report of the plaintiff’s attendances at these sessions (from 7 April to 6 June 2016) was prepared by a psychologist, Viera Stark. Ms Stark’s report – prepared shortly before the subject incident – attributed the plaintiff’s anger and depression to a lack of satisfactory employment and loss of status, compounded by financial stresses and a sense of shame following the AVO taken out against him.
In July 2016, the plaintiff consulted Dr Spielman and complained of persistent pain left in the 1st MCP (metacarpus) which was interfering with his playing. Dr Spielman arranged for X-rays and she discussed the results of them with the plaintiff on 13 July 2016. She arranged a referral for him to the Sydney Hand Clinic. By August 2016, she recorded the plaintiff’s complaints of pins and needles in his right arm, through to the fingers, and numbness of radial finger tips.

The application for Centrelink benefit

In October 2014, Dr Spielman helped the plaintiff bring an application for a disability support pension by preparing a medical report. She noted two conditions to support the application. First, a diagnosis of PTSD which she said had been made by a psychologist, Dusan Kecmanovic (in 1998). She noted that the plaintiff had received psychiatric treatment over 10 years. She recorded the plaintiff informing her of his exposure to the horrors of war in Sarajevo and life threatening experiences. This history generated nightmares, insomnia, flashbacks and depression (albeit that these symptoms fluctuated). The second condition was the plaintiff’s ischaemic heart disease. Dr Spielman recorded that this had been diagnosed by Dr David Muller, a cardiologist, in December 2011.

Further reports

On 9 November 2017, Dr Murambi, a neurosurgery registrar of St Vincent’s Hospital, reported to Dr Spielman that the plaintiff had indicated that his pain was gone; that he rarely got some mild numbness in his fingers but that this was not bothering him too much. This report was included within the documents produced on subpoena by Dr Spielman.

Determination

The defendant conceded that the plaintiff had suffered back pain and tingling (or ‘pins and needles’) in his fingers, but submitted that it was not shown that this injury (or disabilities) was (or were) current. Reference was made to the lack of recent medical evidence served on the plaintiff’s behalf.
The plaintiff did not ultimately submit what injuries or disabilities he said he had suffered as a result of the fall.
I find that as a result of his fall, the plaintiff suffered a relatively brief soft tissue injury to his neck and shoulders. The fall exacerbated pre-existing degenerative issues in his neck. The incident contributed to some numbness in his right hand which, to some extent, continues to this day.
I am not satisfied that, looking forward, there is any further treatment that is suitable or available for the plaintiff or that he would wish to receive such treatment.
I am not satisfied that the fall exacerbated the plaintiff’s pre-existing PTSD, although I find that it exacerbated, to some degree, his existing sense of depression. In my view, the fall down the stairs was simply part of, the deterioration in the plaintiff’s relationship with the defendant which had commenced before the subject incident. To some degree, I consider that the circumstances underlying the fall have added to his depression.

DAMAGES

The plaintiff’s claim for damages assumed that it would be determined by the common law and not by Part 2 of the Civil Liability Act.
In his Schedule of Damages supplied to the Court during the trial, the plaintiff made the following claims:

Economic loss (past and future): $57,200.

Pecuniary loss: $90,000.

General damages: $120,000.

The claim for damages for pecuniary loss embraced multiple components: past and future out of pocket expenses; past domestic assistance and future domestic assistance.
He also sought aggravated damages (for $20,000) and exemplary damages (for $15,000).

Out of pocket expenses

The plaintiff’s Schedule of Damages handed up during the trial itemised, as a species of ‘pecuniary loss’, operations and treatment provided by Medicare (item 9), but only foreshadowed Medicare rebate notification. Such notification was not forthcoming by the time the plaintiff closed his case and made his final submissions.
The defendant simply submitted that it was for the plaintiff to quantify his past of pocket expenses and he had not done so.
I accept that some expenses must have been incurred; especially associated with the plaintiff’s hospitalisation and treatment in the second half of 2016. However, I accept the submission by the defendant that no attempt was made to quantify the extent to which the plaintiff was left out of pocket. Whilst Courts strive to compensate for injuries caused by proven wrongful conduct, sometimes on an ill-informed basis, they are not geared to engage in guesswork where claimants do not assist themselves by furnishing proof they can be expected to provide. I cannot, in the circumstances, make allowance for this claim.
In relation to future out of pocket expenses (item 10) there was a claim for operations and treatment likely to be provided. But Counsel for the plaintiff accepted that there was no evidence as to what such future treatment might involve or proof of the plaintiff’s intention to receive it.

No allowance is made for future out of pocket expenses.

Past and future working capacity

Asked by his Counsel (and by me) what was, or were, the nature of his restrictions since his accident, the plaintiff emphasised his inability to play music. He had previously played a range of instruments: guitar, piano, flute, trumpet and trombone. He could not play the piano now.
Some evidence (Exhibit C) was put before the Court indicating some of the ‘gigs’ or performances that the plaintiff’s orchestral group had played prior to the subject incident. That evidence indicated ticketed prices for the events but said nothing about what, if any, takings that the plaintiff and/or his band or orchestra received through the performances.
The defendant said in her evidence that on 2 July 2016, less than a month since the subject incident, the plaintiff had played guitar in a duet at the opening of her gallery to celebrate it.
Under cross-examination, it was put to the plaintiff that, contrary to what he said in his evidence in chief, he had in fact been able to play guitar. A photocopy of a YouTube image taken in April 2017 (Exhibit 1) revealed that he had played the guitar (whilst performing vocals) as part of a small group. It was suggested to him that he had also played guitar at a festival in December 2017, as well as at the Django Bar Camelot lounge in July 2016. The plaintiff did not recall these other instances of his playing guitar; but he did concede that he had played guitar “two or three times” since the subject incident. He accepted that he received payment for his performances, albeit that these were for modest sums (which he did not quantify). He also accepted that he had been able to continue performing as a composer.
In re-examination, the plaintiff distinguished his capacity to play classical music with his guitar, which required direct contact of his fingers on the strings, with his more general capacity to play the instrument (apparently to perform more ‘popular’ music) with the aid of a plectrum. When he did play, the plaintiff felt that it was not of the same quality as before the incident. He clarified, also, that it was not possible for him to reverse his position when playing guitar (as I understood it, left-handed) so that he was principally using his left hand to string whilst using the right hand to hold the neck of the guitar.
It also emerged that in recent years, the plaintiff has prepared a book, to make money. He had tried, unsuccessfully so far, to get a publisher and hopes to obtain some monetary benefit from his exertions.
The plaintiff also acknowledged that he was in receipt of a disability pension. He indicated that he could only work up to 8 hours before he was subject to a requirement to notify Centrelink.
Prior to the subject incident, he worked a four-hour block assisting in a retirement village. He had doubled the time he worked there following the incident. But the plaintiff said that he was not working there now, for reasons which were not explained – nothing was said, in particular, as to whether this was attributable to the incident.
In his schedule of damages, it was said that the plaintiff’s earnings at the date of the incident were $3,000-4,000 per annum.
At the conclusion of his re-examination (on day 3 of a case slated to run for 2 days), the plaintiff’s Counsel unsuccessfully sought leave to adduce further evidence of his loss of earning capacity. The application was justified on the basis of technological difficulties attending the ‘Virtual Courtroom’ setting of the trial. But it was the position that some evidence of restriction in the plaintiff’s working capacity was adduced; it was just not enough for the plaintiff’s liking. The technological difficulties did not contribute to the omission to put forward in his evidence in chief the plaintiff’s (testimonial) case on earning capacity. The plaintiff’s application was objected to by Counsel for the defendant as an attempt to split the plaintiff’s evidence in circumstances where his cross-examination was predicated upon the evidence of chief as it had been presented to that point. The plaintiff’s Counsel indicated to me that he did not intend to tender documents showing loss of earnings, but rather viva voce evidence from the plaintiff as to what he earned before and after an incident occurring in June 2016. I declined the application having regard to the circumstances, including the low probative value of the plaintiff’s evidence in this regard, the inadequacy of the explanation for the evidence not being raised earlier in his evidence in chief, the prejudice to the defendant (which might have wanted to have conduct investigations independently) and the evident need for further cross-examination and consequential delay in a case which had already overrun the agreed estimate (not that the last consideration was decisive against the application).

Submissions

The defendant submitted that the plaintiff adduced no evidence to quantify past loss of earnings; or proof of how much the plaintiff had the capacity to earn prior to the incident in comparison with his capacity after his fall. It was not for the Court to undertake this exercise. The defendant appeared to accept that he had a reduced physical capacity to play his guitar, in the sense of what he would like to play for commercial purposes, but no evidence was adduced about the economic impact of any restriction in that regard.
The fact was, the defendant said, that the evidence indicated that the plaintiff was able to continue playing his guitar. There was no further curtailment of his earning from his composition activities and no credit was given for the prospect that the plaintiff may make some financial return on a book of musical scores that he had composed.
The plaintiff acknowledged that there was little or no quantification of past loss of earning capacity, but submitted that some allowance should be made because the plaintiff was not, in combination with his band, able to play the style of music that he or it wished to play.

Determination

I am not required to determine a claim for loss of earnings, but a loss of earning capacity. Actual loss of earnings is probative of the loss of capacity[15] but is not decisive proof of the lost, or reduced, capacity. But the loss of earning capacity must be productive of economic loss[16] . It is necessary, in short, for the plaintiff to prove both (a) the capacity that has been lost and (b) what economic consequences would probably flow from that loss: Husher v Husher (1999) 197 CLR 143 at [7]-[8].
15. Paff v Speed (1961) 105 CLR 549 at [566].
16. Graham v Baker (1961) 106 CLR 340.
The plaintiff’s evidence about restrictions upon capacity to play is generally supported by Ms Golski.
I would be prepared to accept that the plaintiff had some physical difficulty or hindrance in his capacity to play classical guitar music in the manner that he was accustomed to playing prior to the incident occurring. The physical restriction however should not be exaggerated. The last medical report before the Court – Dr Murambi’s report of 9 November 2017 – suggested that the plaintiff had reported to him that the pain from his neck injury had gone, that he rarely got some mild numbness in his fingers but that was not bothering him too much. In the absence of further evidence nearly two and a half years down the track, I would not infer that the frequency or intensity of the feeling of numbness has worsened, or is likely to worsen in the future.
My difficulty is in assessing to what extent, if at all, this physical restriction has impeded his capacity to earn; and, if it has, assessing the economic consequences. In his statement of particulars (as amended) the plaintiff asserted that he had engaged in 4 or 5 concerts per year, earning up to $4,000. That was not, however, the subject of evidence from him (such as diary entries or bank statements). I was not given any information to indicate the regularity with which he played or composed classical guitar as distinct from the more ‘popular’ form; nor information which differentiated the proportions of his guitar playing in which he was playing his classical music and popular music before and after the incident. Theoretically, the plaintiff’s great love might have been playing classical music on his guitar, but the Court has no evidence to indicate how much more remunerative his classical guitar playing may be in comparison to the more popular form of guitar playing which has not been hindered by his fall. Put another way, if, as appears, the plaintiff does have a capacity to earn, say, by playing ‘popular’ guitar, for which (for all the Court knows) there may be greater public demand, but refrains from doing so because of his preference to playing classical guitar, which may have less public demand, it is difficult to say he has suffered a loss of earning capacity; or that such loss has any economic consequences for him.
In so saying, I am mindful that I am required to consider not only the physical effects of disability on playing but also the mental restrictions upon the plaintiff in being able to earn income from playing caused by his inability to playing the type of music he wants at the standard he would wish to play at. At the point when the incident occurred, the psychologist, Ms Stark noted the plaintiff’s depression and anger ‘reflecting his lack of satisfactory employment’ and his low self-esteem. This would have substantially inhibited his capacity to earn even before the subject incident.
I am conscious of the basic principle that mere difficulty in estimating damages does not relieve a court from the responsibility from estimating them as best as it can. However, the Court does expect a claimant, who has selected a cause of action where damage is said to be the gist of the action, and who carries the onus of proof, to provide some evidence upon which a rational assessment of value can be made[17] . There was no suggestion that he was incapable of doing so.
17. See the summary of principles where there is difficulty in valuing loss of earning capacity in McCrohon v Harith [2010] NSWCA 67 at [118]-[126].
But I find probative Ms Stark’s reference, as at June 2016, that his employment situation was precarious. Whilst in receipt of the disability pension (by which, I was told, he was not able to work more than 8 hours a week), his musical performances were, at best, spasmodic. There was no record of takings prior to the incident in comparison to what occurred after the incident.
In relation to the period from the incident to trial, he has not demonstrated the economic consequences of his reduced physical capacity.
As to the future, if there had been some quantification of income, I might have been inclined to award a buffer sum[18] . But the evidentiary foundation is too thin to admit such allowance even on that basis.
18. Dunbar v Brown [2004] NSWCA 103.

Domestic Assistance

The plaintiff gave no evidence that would enable the Court to compare the extent to which he could perform domestic activities before and after the incident; nor evidence of any likely requirement for domestic assistance in the future.
I make no allowance for past or future domestic assistance.

Non-economic loss

The defendant accepted that the plaintiff had lost amenity in the sense of being restricted in what he said he could play on the guitar and, further, had suffered pain and suffering by reason of the fall. However, she submitted that these detriments did not meet the threshold requirements for non-economic loss contained in s 16 of the Civil Liability Act.
The plaintiff submitted that I should not only take into account the matters acknowledged by the defendant. There was evidence, also, of his sense of withdrawal and the mental consequences upon his restrictions in playing his guitar which needed to be factored into account.
Neither party put before the Court any material to indicate past cases that guide the Court’s assessment of how the injuries and disabilities of which the plaintiff suffered fall within the scale of a most extreme case (per s 17A of the Civil Liability Act).
I find that the plaintiff endured pain and suffering associated with his physical injury after the fall. This was of relatively short duration in the sense of pain, but the fall would have led to a not insubstantial amount of stress and anxiety as to the treatments that he would receive and, especially, the effects upon his capacity to play as a musician and composer.
Notwithstanding my difficulties in ascribing any loss in earning capacity, I am satisfied that there has been a not insubstantial loss of amenity in the plaintiff’s physical restrictions in playing classical guitar. I find that playing music to the standard and in the manner that the plaintiff was accustomed to playing prior to the incident was a balm to the mental difficulties that he has faced through his life. That has been adversely affected by his fall. Further, I consider that the fall also accentuated a pre-existing state of depression; which has been manifested by a sense of social withdrawal.
I also take into account, in this context, that the plaintiff must have felt some indignation in being pushed.
I would have found that the plaintiff had attained a level of 16% of a most extreme case. That equates to an allowance of $9,870.

Claims for aggravated and exemplary damages

Where the claim for damages for personal injury caused by a defendant’s negligence is regulated by Part 2 of the Civil Liability Act, there is no recovery allowed for these heads of damages: s 21. In this regard, the reference to negligence means a failure to exercise reasonable care and skill (however the action is framed)[19] . As I have indicated, no claim was brought for damages caused by trespass to the person.
19. State of NSW v Ibbett (2005) 65 NSWLR 168 at [118] per Ipp JA; at [200]-[210] per Basten JA; Croucher v Cachia [2016] NSWCA 132 at [35] per Leeming JA.
If I am wrong in finding that the action for damages is regulated by the Civil Liability Act but is instead governed by the (unmodified) common law, I propose to consider the claim. However, it needs to be adjudicated in accordance with how the claim was raised.
The rules of court require that claims for aggravated damages and exemplary damages be particularised (rr 15.7 and 15.8 of the Uniform Civil Procedure Rules). There was no reference, at least by name, to either head of damages in the pleading or the Statement of Particulars (as amended). Nevertheless, there was (at page 4 – the numbering was obscure) in the Statement of Particulars (as amended) an assertion that the plaintiff had suffered ‘humiliation and embarrassment’ arising out of certain enumerated actions of the defendant being: the failure to offer comfort or assistance whilst he was injured on the ground; the failure to admit any wrongdoing in having pushed the plaintiff down the stairs; not apologising to the plaintiff for pushing him down the stairs; and that the plaintiff’s post-operative scars on his neck and spine serve as a reminder to the plaintiff of the events and are a recurring humiliation to the plaintiff.
In my view, although not identified as such, these may be treated as particulars of a claim for aggravated damages, which are generally intended to compensate a plaintiff for injured feelings and humiliation[20] .
20. Lamb v Cotogno (1987) 164 CLR 1 at [8].
However, there is an additional difficulty for the plaintiff by reason of the preponderant view in the authorities that aggravated damages are not available in an action for negligence[21] , at least where there was no concurrent liability for trespass to the person (such as a battery). An abiding concern in allowing such an award is to prevent double compensation: an allowance for injured feelings may slide into the order for general damages. However, as noted more than once in these reasons, the plaintiff did not plead the distinct action for trespass to the person; which has several potential defences which could have been raised by the defendant in answer to such action. I do not consider that it would be procedurally fair to the defendant to consider that because aggravated damages may have been available had the action in battery been run, they are available in the action exclusively pleaded in negligence based upon the same conduct by the defendant.
21. Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 268 at [110] per Mason P (Stein JA and Heydon JA agreeing).
Accordingly, even if the common law applied (not modified by the Civil Liability Act) and even if I was to accept the plaintiff’s version of how he fell, on the basis of his pleading, confined as it was to the action in negligence, as a matter of law, I consider that I would not be permitted to award aggravated damages for the action pleaded by the plaintiff.
In case I am again wrong, and the law would permit such claim to be brought, I propose to say something on the merits of this claim, as it has been particularised. By his Counsel’s final submissions, the plaintiff only referred to the circumstance that the defendant delayed 15 minutes from the time of the plaintiff’s fall to the time she rang the ambulance. This was consistent with the first of the particulars for this claim. The contention was based upon the plaintiff’s evidence.
I am not persuaded that there was a period of delay of this length even if I accepted the plaintiff’s account of the circumstances in which he fell. The defendant gave evidence, at different times, that the delay was 2-3 minutes or 5 minutes. I seriously doubt whether either the plaintiff or defendant paid any attention to time at the point where the incident occurred. But even if it the period was as long as the plaintiff said it was, I do not consider that period to be inordinate, having regard to the period of time that would naturally be taken by the defendant not only to assess what the plaintiff required, but also to recover her own composure after the altercation that had occurred not long before the fall. Further, it is plain from the audio recording of what she said to the ambulance, that the defendant did offer comfort and assistance to the defendant. Ms Golski testified that the defendant had told her that she had hoped that the plaintiff would be okay. It was she who instigated his being taken to the hospital. Further, she gave unchallenged evidence of attending the hospital the next morning in anticipation that she might see the plaintiff. That did not occur (because of the plaintiff’s wishes), but she left a plate of sandwiches for him.
As to the other particulars for a claim for aggravated damages, it is true that the defendant did not admit or apologise for pushing the plaintiff down the stairs. I have already factored in to the assessment of non-economic loss the consideration of the plaintiff’s injured feelings from being pushed; although I accept that there is a substantial qualitative difference between pushed in the back down a set of steps and being pushed in a ‘front on’ fashion. But I am not sure that a failure of a wrongdoer (in negligence, where the factual predicate is inadvertent harm) to admit or apologize for the conduct that gives rise to the liability can sound in aggravated damages. Otherwise, every inadvertent conduct giving rise to an action in negligence may result in an award of aggravated damages if a defendant disputes liability. Finally, as to the last of the matters stated in the Statement of Particulars to found this claim, bodily disfigurement (as in scars), the plaintiff said nothing about this in his evidence.
In the circumstances, even on the various hypotheses I have considered, I would not have awarded aggravated damages.
No separate submission was made by the plaintiff about the claim advanced for exemplary damages. I do not consider that I can fairly address this claim in circumstances where, in addition to the absence of any pleading of such claim, no particulars of this head of damage were supplied (either in form or in substance) in advance of the trial.

CONTRIBUTORY NEGLIGENCE

It is also unnecessary to consider this point in view of my findings. Neither party referred to this defence in their submissions.
If I am wrong, however, in earlier findings, I note that there was a contradiction between the defendant’s pleaded case of contributory negligence – that the plaintiff failed to hold on to the rail – with the evidence that she gave to the police that, on the way down, the plaintiff did in fact grab the railing. The defence would have failed on the facts.
There would have been no reduction in damages for contributory negligence.

ORDERS

I order that there be a Verdict and Judgment for the defendant with the plaintiff to pay the defendant’s costs.
I grant liberty to apply to the parties within 14 days if there be any application to vary the order for costs.
Exhibits may be returned after 28 days.

**********

Endnotes

Decision last updated: 22 April 2020

Medium Neutral Citation:	Jeleskovic v Wagner (No. 2) [2020] NSWDC 126
Hearing dates:	8-9, 14-15 April 2020
Date of orders:	22 April 2020
Decision date:	22 April 2020
Jurisdiction:	Civil
Before:	Abadee DCJ
Decision:	See paragraphs 214-216
Catchwords:	TORTS – action for damages for personal injury arising from alleged negligence – occupant of residence allegedly pushed co-occupant down a flight of stairs – occupant admits to pushing co-occupant but not down the stairs – whether issues of liability and damages regulated by the Civil Liability Act 2002 (NSW) or the common law (not modified by that legislation) – whether intent to injure established – standard of proof – whether duty of care and breach established – factual causation DAMAGES – nature and extent of physical injury – claim of psychological injury – relevance of pre-incident diagnoses of Post-Traumatic Stress Disorder and depression – claims for aggravated and exemplary damages
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 3B, 5B, 5C, 5D, 5E, 17A, 21 Crimes Act 1900 (NSW), s 59 Evidence Act 1995 (NSW), s 140 Uniform Civil Procedure Rules 2005 (NSW), rr 14.23, 15.7, 15.8
Cases Cited:	ASIC v Hellicar (2014) 247 CLR 345 Croucher v Cachia [2016] NSWCA 132 D’Orta-Ekenaike v Victoria Legal Aid (2005) 233 CLR 1 Dean v Phung [2012] NSWCA 223 Dickson v Northern Lakes Rugby League Sport & Recreation Club & Anor (No.2) [2019] NSWDC 433 Dunbar v Brown [2004] NSWCA 103 Fede v Gray by his tutor New South Wales Trustee and Guardian [2018] NSWCA 316 Graham v Baker (1961) 106 CLR 340 Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 268 Husher v Husher (1999) 197 CLR 143 Lamb v Cotogno (1987) 164 CLR 1 McCrohon v Harith [2010] NSWCA 67 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 New South Wales v Ibbett (2006) 229 CLR 638 Paff v Speed (1961) 105 CLR 549 Palmer v Dolman [2005] NSWCA 361 Perre v Apand Pty Ltd (1999) 198 CLR 180 Presidential Security Services of Australia Pty Ltd v Brilley (2008) 73 NSWLR 241 Sullivan v Moody (2001) 207 CLR 562 Westbus Pty Ltd (Administrators Appointed) v Ishak [2006] NSWCA 198 Williams v Milotin (1957) 97 CLR 465 Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 Wyong Shire Council v Shirt (1980) 146 CLR 40
Category:	Principal judgment
Parties:	Mr M Jeleskovic (Plaintiff) Ms N Wagner (Defendant)
Representation:	Counsel: Mr M Donovan for the Plaintiff Mr W Tuckey for the Defendant Solicitors: Northern Coast Solicitors for the Plaintiff Beston Macken McManis Lawyers for the Defendant
File Number(s):	2019/170835
Publication restriction:	Nil