Mitzi Wiki v Atlantis Relocations (NSW) Pty Ltd - [2003] NSWSC 481

No judgment structure available for this case.

CITATION: Mitzi Wiki v Atlantis Relocations (NSW) Pty Ltd [2003] NSWSC 481

HEARING DATE(S): 24/03/03 - 28/03/03

JUDGMENT DATE:
16 May 2003

JUDGMENT OF: Newman AJ at 1

DECISION: Damages assessed in the sum of $290,139.35; The question of the final judgment amount and costs reserved until delivery of these reasons.

CATCHWORDS: Admission by conduct - assessment of damages - unreliability of testimony - exaggeration - failure to mitigate.

CASES CITED: Heuston v Yore Contractors Pty Limited 9 March 1992 (Unreported) per Hunt CJ at CL

PARTIES :
Mitzi Wiki - Plaintiff
Atlantis Relocations (NSW) Pty Ltd - Defendant

FILE NUMBER(S): SC 20998/01

COUNSEL: G. B. Hall QC / F Stevens - Plaintiff
P. C. Sweeney - Defendant

SOLICITORS: RTW & Associates - Plaintiff
Goldbergs Lawyers - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

NEWMAN AJ

Friday 16 May 2003

20998/01 - MITZI WIKI v ATLANTIS RELOCATIONS (NSW) PTY LIMITED
JUDGMENT

1 HIS HONOUR: This is a claim for damages for personal injury brought by the plaintiff against her former employer. The plaintiff claims that she first suffered injury on 15 February 1998 in the course of her employment because she was obliged to carry out duties which included heavy lifting. Furthermore she alleged that between 15 February 1998 (having suffered injury on that date) and April of 1999, she was further required to carry out duties involving heavy lifting which in the performance of such duties aggravated the back injury she had suffered on 15 February 1998.

2 The defendant admitted that the plaintiff’s allegations as pleaded which I have summarised above, constituted a breach of duty on behalf of the defendant employer. Accordingly it is not necessary to examine in greater detail the allegations made by the plaintiff relating to how she suffered injury.

3 At the trial the principal issue which emerged was, what was the nature of the back injury suffered by the plaintiff and what were the consequent disabilities which flowed from that injury.

4 The plaintiff’s task in establishing that she suffered and continued to the date of trial, from incapacity resulting from the injury which occurred in the course of her employment, is made easier because the defendant (through its insurer) has continued to make payments of workers compensation on a voluntary basis up to the date of the trial. It is trite law in this State that the fact of continued payment of workers compensation is admissible against a defendant in whose name the insurer defends common law proceedings as an admission that an injured worker is still incapacitated at the time such payments are made as a result of the injury which the worker received in the course of that worker’s employment. See for instance Heuston v Yore Contractors Pty Limited 9 March 1992 (unreported) per Hunt CJ at CL. I should add that Hunt CJ at CL in Heuston’s case observed that such an admission is always open to explanation by way of evidence in the same way as any other informal admission is open to explanation. Be that as it may a plaintiff’s task in establishing incapacity for work is made easier by the reception in evidence of such an admission.

5 What then is the plaintiff’s case. She deposed that following experiencing back pain at work on the 15 February 1998, she did not see a doctor until some four days had passed from the date of injury. She then saw a general practitioner, a Dr Earl, but did not immediately cease work. However some days later she experienced pain in her right leg which caused her to return to see Dr Earl following which visit she ceased work and remained off work being paid workers compensation for the next two months. During that time she had not only attended upon Dr Earl but Ryde Hospital and a specialist, Dr Donaldson.

6 Having been off work for two months, she returned to work in April of 1998. Her evidence was that she felt she could resume her duties at that time. When however she did return to work her duties were changed – she undertook the duties of a project manager. She described those duties as involving liaison with clients, finding out what they wished to have the defendant company move on their behalf. The job involved analysing what was required by way of labour and equipment. Her work as project manager did not involve physical activity. While she continued working as in that capacity for the defendant from April 1998 onwards, she said that she was still experiencing pain in her lower back which pain extended down her right leg, indeed to the extent where the pain reached her ankle. During the time she was carrying out the duties of a project manager she was still seeing her general practitioner, Dr Earl, and on occasions attended Ryde Hospital.

7 She in fact continued to work as a project manager for the defendant until April in 1999. She said that while she was not required to carry out any physical labour as such, the long hours she was required to work together with the distances she was required to drive to perform her duties, caused her pain and discomfort.

8 As I have said she left the employment of the defendant in April of 1999. She then went to work with another removalist company known as Movers and Shakers. Again her employment with that firm was as a project manager and as I understand her evidence, her duties there were similar to those she had been performing in that capacity with the defendant. She said that she was still suffering from back pain and attended Dr Earl on a number of occasions as well as Ryde Hospital. Eventually she found that her back and leg pain was such that she could not continue her duties with Movers and Shakers and she left the employment of that entity in July of 1999. Since then she has performed no work for remuneration because she claims the disabilities she suffers following her original injury with the defendant on 15 February 1998 have prevented her from so doing.

9 Indeed it was her case that since she left the employment of Movers and Shakers in July of 1999 she has become increasingly disabled. In early 2000 her back pain was not confined solely to her lower back but also she complained of symptoms in her thoracic region. As the years have passed so have her symptoms and complaints of pain, to use Dr Dan’s description, cascaded.

10 On 24 October 2001 the plaintiff was examined by Dr Eli Revai, psychiatrist, on behalf of the defendant. In his report of that date, Dr Revai summarised the complaints of pain and disability made by the plaintiff to him as follows:-

“I enclose a diagram marked by Mrs Wiki, outlining problem areas. She had no difficulty marking the diagram with her right hand.

Right scapula: Mrs Wiki told me that there is constant pain here, increased by her lifting up her right arm. She obtains some relief if she takes analgesics to combat this pain.

Right upper limb: Mrs Wiki explained that after she uses her right arm, there is some pain in the upper arm and also “The fingers feel like arthritis after I have been using the computer keyboard, because I play euchre on the computer and help my kids with their homework.”

Back: From the lumbar to the thoracic region on the right side of the paraspinal muscles, there is “mild” pain depending on the amount of physical activity Mrs Wiki is involved in.

Lumbar spine: Across the lumbar region, there is constant pain.

Right hip: Mrs Wiki stated of the symptoms in the right hip “A helluva lot of trouble, very excrutiating when it comes. It can put me back to the doctor. I’ve just been to see Dr Needs, a rheumatologist. He told me that it is referred pain from the back. It is always made worse by walking a lot, bending a lot, or even sitting in the car.”

Right lower limb: Mrs Wiki told me that when the pain is severe across the lumbar region, it radiates throughout the leg to the ankle. It can also be brought on by sitting in the car.

Headaches: Mrs Wiki told me that she has suffered from migraines since the age of eight. Dr Earl referred her to Dr H Miller in 1994 because of these headaches but for the past one year, they have been worse and now are present at a frequency of daily to every fortnight. They are of a pounding nature, accompanied by nausea and photophobia. Mrs Wiki told me that she had a headache whilst she was speaking to me and had taken four Mersyndol tablets this morning.

“I’m still up and down emotionally. I’m still very irritable. I just had a bad month of feeling nutty and crazy. I get tired of being constantly sore. I’m very irritable with everyone else.”

11 I have annexed a copy of the diagram referred to by Dr Revai to these reasons.

12 In evidence the plaintiff gave an account of her bodily problems which was consistent with the description she gave to Dr Revai. Her evidence was that her disability is so extensive that she can do little around her home by way of domestic duties and is reliant upon the assistance of her defacto, Steve Patrick Raerino, her children and, amongst others, a neighbour, Mrs Bachelor, for assistance. On occasions, her disability is such that she requires the assistance of Mr Raerino in going to the toilet. Mr Raerino and Mr Craig Bachelor gave evidence of an episode when ambulance officers were called to the plaintiff’s home when she had become immobile in the family motor car and required ambulance assistance to get out of the vehicle.

13 Both the plaintiff and Mr Raerino deposed that from November 2000 such was the plaintiff’s plight that Mr Raerino terminated his employment as a technician with Telstra and became her full-time carer receiving a Commonwealth pension for this task.

14 While, as I have said, the plaintiff has not performed work for remuneration since she left Movers and Shakers in July of 1999 and Mr Raerino ceased his employment in November of 2000 to become her carer, he has taken out a private enquiry agent’s licence and she has taken out a licence as his sub-agent. It was her evidence that her principle interest in operating as private enquiry agent was to carry out enquiries principally by the use of the internet to ascertain the whereabouts of missing persons – including a member of her own family. As I understand her evidence and that of Mr Raerino neither have received any remuneration for their activities as private enquiry agents.

15 Thus it is the plaintiff’s case that as a consequence of her injury of 15 February 1998 she is effectively totally incapacitated for work and has a need for a full-time carer because of the pain and consequent physical disability which she suffers.

16 Over the years since 1998 she has seen her general practitioner, Dr Earl, on many occasions, has attended both Ryde and Mt Druitt Hospitals frequently and has been seen by a number of specialist practitioners both for treatments and for the purposes of this case. She has also been ingesting a large number of prescription drugs. These include Pethidine, Prozac, Endone, Valium and Naprosyn. The Pethidine has been administered in relation to migraine headaches which as I understand the evidence arose prior to her injury with the defendant. She has also suffered from gynaecological problems over the years but the evidence relating to those problems was very scant at the trial. In evidence it emerged that she had seen Dr Earl - general practitioner, Dr Donaldson - surgeon, Dr Pell - a neurosurgeon, Dr Needs – a rheumatologist and a Dr Cummine – orthopaedic surgeon for treatment as well as various staff specialists at Ryde, Mt Druitt and Westmead Hospitals. The only treating doctors whose reports were tendered in the plaintiff’s case were Drs Earl and Donaldson. I therefore take it that Drs Pell, Cummine and Needs could not give evidence which would assist the plaintiff’s case.

17 I should at this stage state that I was not impressed by the plaintiff as a credible witness. In particular, her description of the escalation of her symptoms and her responses to the challenged mounted in cross-examination to that escalation were unconvincing.

18 The plaintiff’s case received support principally from a general surgeon, a Dr Max Ellis, and a Dr Richard Evans, a physician. Neither of these doctors of course treated the plaintiff. Also the plaintiff relied upon the evidence of a psychiatrist, Dr Roxanas.

19 Dr Ellis who had received a history consistent with the account I have detailed above, concluded that the plaintiff was suffering from an internal disc disruption at the T11/12 disc, a small right paracentral disc protrusion at this level causing thecal sac indentation. Furthermore that at the L4/5 level she had a posterio central disc protrusion and annual tear at the L5/S1 level there were changes consistent with a right paracentral annual tear with evidence of injury to the facet joints on each side at this level and evidence of compression injury to the right S1 nerve root. These disabilities have made her unfit for any form of heavy work. In coming to his conclusion, Dr Ellis relied not only upon his clinical observations but also upon an MRI examination of her spine performed at Westmead Hospital on 8 December 1999 by radiologists Drs Singh and Dwyer.

20 In evidence Dr Ellis maintained his position. In cross-examination it would put to him that in fact the radiological evidence did not indicate the problems at either the L5/S1 or T11/12 level as revealed in the Westmead Hospital MRI examination. He maintained his position despite a searching cross-examination by counsel for the defendant.

21 Dr Evans whose views were not dissimilar to those of Dr Ellis, also maintained those views in oral evidence. However, he conceded that in his view the plaintiff was exaggerating her disabilities. That concession came as a consequence of his clinical observation of the plaintiff when he examined her. However, Dr Evans maintained that leg wasting which he found on examination was indicative that the plaintiff was still incapacitated to a degree as a consequence of her work injury.

22 Dr Roxanas deposed that the plaintiff was suffering from a depressive illness consequent upon the pain and disability she was suffering as a result of her physical injuries. In essence it was Dr Roxanas’ view that so long as the plaintiff was suffering from pain and disability from her physical injuries so consequently her depressive illness would continue. When questioned about the amount of prescriptive drugs that the plaintiff was ingesting, Dr Roxanas was of the view that whatever the plaintiff’s condition required it was reasonable that drugs would be prescribed by those treating her.

23 Dr Donaldson who had seen her earlier in the piece stated in his reports that at that time he thought the plaintiff was suffering from a lumber sacral strain.

24 Dr Earl’s reports were descriptive of the plaintiff’s visits to her and the complaints she had made on those occasions. Positionally as a consequence of those spinal injuries she suffers from a depressive condition which would account for the myriad of other symptoms which the plaintiff claims she suffers. If the plaintiff’s case were accepted at its highest, then the plaintiff would be entitled to compensation on the basis of total incapacity from the date when she ceased working in July of 1999 to date and continuing. Furthermore her claim for past and future care would also succeed.

25 What then is the defendant’s case?

26 The case was entirely dependant upon medical evidence.

27 Essentially the defendant’s case was that the plaintiff did not suffer disc damage at either T11 or L4/5 as a consequence of the incident of 15 February 1998 nor her subsequent work. While there was no issue raised that the plaintiff had suffered an injury on 15 February 1998 and that it was not a significant injury, the defendant’s case was that the effects of that injury had in all probability subsided well before the trial. The most significant difference between the medical evidence called by the plaintiff and that relied upon by the defendant involved an interpretation of the MRI scan of 8 December 1999.

28 Dr Innes-Brown, an orthopaedic surgeon, opined on 8 September 2000 that the MRI scan findings were indicative of early spondylitis in the thoracolumber spine. He stated in a report of that date:-

“The MRI scan findings are degenerative in nature and I do not consider that there is any causal relationship between this mild early pathology in her spine and the work she was doing in February 1998. To the extent that her claimed ongoing symptoms are significant, they would attributable to the slowly progressive age-related degenerative processes in her thoracic and lumbar spine.”

29 Dr Anthony Christie who described himself as an occupational physician was of the view that the plaintiff had suffered a chronic low lumbar sprain. Indeed he felt that that sprain was related particularly to the work she carried out in August of 1999, that is, work after 15 February of that year. He found slight wasting in her right leg when he first saw her on 10 September 2001 and that together with the history received from her of pain radiating down her right leg indicated to him that the nerve was being compressed at the facet joint. However he did not on his reading of the radiological evidence including the MRI scan of 8 December 1999 cause him to diagnose that there was not a disc injury present. The spread of her condition to the thoracolumbar junction he believed was due in all probability to her using a waterbed and perhaps to her smoking. He concluded:-

“I do not believe that there is any clinical evidence that Ms Wiki has suffered a permanent injury to her lower back although the fact that low back pain has been present for more than three years makes a prognosis for a full recovery rather doubtful.”

30 Dr Christie saw the plaintiff again on 20 August 2002 and having carried an examination opined as follows:-

“I remain of the opinion that I expressed in September 2001 that she may well have suffered a chronic low lumbar sprain in August of 1999. It is possible that she does have some nerve root involvement to the right leg although the wasting of her right calf seems to have recovered.”

31 He concluded:-

“I am unable to explain Ms Wiki’s continuing pain and particularly the marked deterioration in her condition since I last examined her.

32 The key witness on the plaintiff’s physical condition called by the defendant was Dr Noel Dan. Dr Dan who is a neurosurgeon is the Clinical Associate Professor or Surgery within the University of Sydney. I do not believe that I am doing a disservice to the other medical practitioners involved in the matter when I describe Dr Dan as being the most eminent of them. In a report dated 14 February 2003 Dr Dan expressed the following view:-

“Ms Wiki presents with a history which commenced in 1998 with symptoms of back pain. These were suggestive of a back strain. Subsequently she has reported a cascade of symptoms which chronologically could not be related to the incident on 15.2.98. Whilst people do experience discomfort in other parts of the spine when there is an injury in one part. The chronology and the association with symptoms in the upper limbs does not fit that pattern. Additionally, the report of right hemianaesthesia is not explainable with a spinal injury even in the cervical region. If a cerebral scan has not been performed it would be helpful to exclude an intracranial lesion but the most likely explanation of the symptoms is psychological rather than physical. She has seen Dr Roxanos and she said that she saw him for depression. I suspect that there is either an hysterical conversion or significant psychopathology present or a deliberate magnification of her symptoms.

33 Dr Dan was called. When in chief his attention was turned to the radiological evidence in the matter, he gave evidence as follows:-

“Q. You refer to the MRI of 8 December 1999 showing a bulge at L4/L5?
A. Yes, I’m sorry about the bad grammar. The bulge of L4/L5 is really within the limits of normal.

Q. You had a bundle of radiological, CAT scan x-rays and the like?
A. I did.

Q. Did any of them suggest any significant abnormality?
A. No, there were features in some of them which were not strictly normal in the sense of radiology but in the sense of being significant changes, I didn’t think they showed any. The plain x-rays showed some straightening of the lumbar lordotic curve and this is very common and not necessarily abnormal appearance. There was a minor central disc protrusion in the lower thoracic region at T11/12 and that wasn’t really something which would cause any compression on any neural structures and an appearance such as that is a very frequent finding and wouldn’t be one that I would expect to cause any symptoms.

Q. They are the only abnormalities that you found in looking at the radiology, is that correct?
A. Yes.

Q. It would appear that on 10 May 2000 the plaintiff underwent myelography of the lumbar spine at Concord Hospital and extracted from the clinical notes is a copy of the report (shown). I think you worked at Concord from time to time, or at least you did in the past?
A. Still and for about the last 30-odd years.

Q. Are you familiar with the radiologist?
A. Yes, I am.

34 He then went on to give the following evidence:-

Q. I think you were talking about the bulging L4/5.
A. Yes. The term ‘bulge’ is used to describe a projection of the disc beyond the line of the posterior aspect of the vertebra but one which is not regarded as abnormal or pathological. The finding there is very much in keeping with my comments on the MRI which was performed five months before.

35 Dr Dan was subjected to the searching a detailed cross-examination by senior counsel for the plaintiff. As Mr Hall QC conceded in his address, Dr Dan maintained his position in cross-examination. I shall return to Dr Dan’s evidence later in these reasons.

36 Dr Revai, psychiatrist to whose evidence I have already made reference, expressed the view:-

“I wonder if there is more to Ms Wiki’s history than she admits to but I cannot satisfy myself today that she is disabled from working because of any psychological disturbance. Her prognosis is dependent on the resolution of her physical complaints and possibly these will not cease until she has had her day in court.”

37 He saw her again on 22 August 2002. On this occasion Dr Revai concluded as follows:-

“Mrs Mitzi Wiki is a thirty-six year old mother of three, who claims to have developed low back symptoms in the course of her duties at Atlantis Relocations Pty Limited in February 1998. Since that time, her symptoms have escalated, more so within the last seven months, which I find hard to understand. It is to be noted that there is a background history of a traumatic childhood, of being the child of violent alcoholic parents, having been disowned by her parents, of having been in a number of relationships with violent and alcoholic partners until the advent of her present partner. At present, Mrs Wiki is presenting with pain disorder. According to DSM-IV-TR, I believe that this would be diagnosed as a pain disorder associated with psychological factors and it is of a chronic nature. However, this does not discount the possibility that the symptoms could be consciously produced.

38 Associate Professor Jones, a rehabilitation specialist, came to this view:-

“I believe that Ms Wiki has the potential for independent in personal care in all activities of daily living of a domestic nature. If she becomes motivated and learns to control her perceptions of pain then she will be capable of returning to her previous employment or other occupations at her own will.”

39 I found Dr Dan’s evidence to be very persuasive. Not only was he the most eminent of the medical practitioners called (or whose reports were tendered) but he was in my view the most impressive witness whether lay or expert called in the case. Accepting as I do his evidence I find that the plaintiff has not established that she suffered the disc injuries at T11/12 and L5/S1 as claimed. Furthermore again based upon my acceptance of Dr Dan’s evidence, I do not find that the plaintiff has established that she has suffered the pain and disability of which she complains. As Dr Roxanas’ evidence that the plaintiff was suffering from depression was dependent upon an acceptance that she was suffering pain of the type she complained of because of her physical disabilities I also do not find that the plaintiff has established that she suffers from the depression which he diagnosed. It also follows that I do not accept the plaintiff’s case that she currently or at any time has required care or will in the future.

40 However, I do accept that the plaintiff did suffer a significant injury on 15 February 1998 and the effects of that injury were aggravated by her continuing to work as a packer. While, as I have said, I do not accept that the plaintiff suffered the disc injuries which she alleged, I do find that she suffered a back strain, the effects of which are still causing her some incapacity which probably prevent her carrying out manual work of the type she was performing when she suffered injury and that this incapacity is permanent. I come to this conclusion mainly because of Dr Evans’ finding of leg wasting.

41 In the light of the admission of incapacity evidenced by the continued payment of workers compensation to which I have referred earlier in these reasons, I find that the plaintiff is entitled to be awarded her past wage loss to the date of trial on the basis that she was totally incapacitated until that date. Thereafter, I find that while incapacitated for her pre-injury work she is fit to perform a wide range of activities which do not require the amount of physical effort demanded of her by her pre-injury employment. I quantify her future loss of economic incapacity in the sum of $100 per week.

42 I then turn to the calculation of damages in accordance with the provisions of s 151 of the Workers Compensation Act (hereinafter referred to as the Act). Section 151H of the Act is in the following terms:

“ 151H(1) [Threshold of 15%] No damages may be awarded unless the injury results in the death of the worker or in a degree of permanent impairment of the injured worker that is at least 15%.

151H(2) [Assessment] In assessing whether the 15% threshold has been met (that is, whether the degree of permanent impairment resulting from an injury is at least 15%):

(a) impairment resulting from physical injury is to be assessed separately from impairment resulting from psychological injury, and
(b) in assessing impairment resulting from psychological injury, no regard is to be had to impairment that results from a secondary psychological injury, and
(c) the 15% threshold is not met unless the degree of permanent impairment resulting from physical injury is at least 15% or the degree of permanent impairment resulting from psychological injury is at least 15%.

151H(3) [No regard for psychological injury] In assessing the degree of permanent impairment that results from a physical injury, no regard is to be had to any impairment or symptoms resulting from a psychological injury.

151H(4) [Relevant legislation] The degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.

151H(5) [Definitions] in this section:

psychological injury

Secondary psychological injury

43 Having regard to the plaintiff’s age (she will turn thirty seven on 18 May next) and the degree of incapacity resulting from physical injury she has suffered and will suffer, I find that her degree of permanent impairment is 25%. Accordingly, the plaintiff is entitled to be awarded damages.

44 In accordance with the Act, I calculate her damages as follows:

45 Out-of-pocket Expenses - $15, 200.85 (as agreed)

46 Future out-of pocket Expenses

47 Gratuitous Care

48 Economic Loss to Date of Trial

49 Future Economic Loss

From the date of trial until the plaintiff turns sixty five a period of twenty eight years will elapse. Pursuant to S 151J(1) and (2) of the Act and my finding that the plaintiff will suffer a continuing loss of $100 per week from the date of trial until she turns sixty five, the following calculation emerges

100 x 796.6 x .85 = $67,711

50 Loss of Superannuation Benefits

51 Non-economic Loss

52 Fox v Wood Component

53 I calculate my findings as to damages as follows:

Past out-of-pocket expenses	$ 15,200.85
Future out-of-pocket expenses	$ 10,000.00
Past economic loss	$117,000.00
Future economic loss	$ 67,711.00
Loss of Superannuation benefits	$ 16,570.00
Non-economic loss	$ 56,562.50
Fox v Wood	$ 7,095.00
$290,139.35

54 I thus assess the damages in the sum of $290,139.35.

55 I shall reserve the question of the final judgment amount and costs until after the delivery of these reasons.

**********

Last Modified: 06/04/2003

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Mitzi Wiki v Atlantis Relocations (NSW) Pty Ltd [2003] NSWSC 481

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CITATION:	Mitzi Wiki v Atlantis Relocations (NSW) Pty Ltd [2003] NSWSC 481
HEARING DATE(S):	24/03/03 - 28/03/03
JUDGMENT DATE:	16 May 2003
JUDGMENT OF:	Newman AJ at 1
DECISION:	Damages assessed in the sum of $290,139.35; The question of the final judgment amount and costs reserved until delivery of these reasons.
CATCHWORDS:	Admission by conduct - assessment of damages - unreliability of testimony - exaggeration - failure to mitigate.
CASES CITED:	Heuston v Yore Contractors Pty Limited 9 March 1992 (Unreported) per Hunt CJ at CL
PARTIES :	Mitzi Wiki - Plaintiff Atlantis Relocations (NSW) Pty Ltd - Defendant
FILE NUMBER(S):	SC 20998/01
COUNSEL:	G. B. Hall QC / F Stevens - Plaintiff P. C. Sweeney - Defendant
SOLICITORS:	RTW & Associates - Plaintiff Goldbergs Lawyers - Defendant