Monty v Elmawey
[2007] SADC 19
•2 March 2007
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
MONTY v ELMAWEY & ANOR
[2007] SADC 19
Judgment of His Honour Judge Muecke
2 March 2007
LIMITATION OF ACTIONS - CONTRACTS, TORTS AND PERSONAL ACTIONS - THE PERIOD OF LIMITATION - PERSONAL INJURY CASES
TORTS
After dinner on 19 July 1992 at the first defendant's house the plaintiff and the second defendant were involved in a physical altercation in the front yard of the house - they fell to the ground together - the plaintiff was rendered a quadriplegic - action instituted out of time against the defendants for damages alleging various causes of action - extension of time refused - no cause of action established - action dismissed against both defendants.
Limitation of Actions Act 1936 s36, 48, referred to.
Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628; Modbury Triangle Shopping Centre Pty Ltd v Anzil & anor (2000) 205 CLR 254, considered.
MONTY v ELMAWEY & ANOR
[2007] SADC 19Introduction
In the middle of July 1992 the first defendant Abdul Elmawey (“Mr Elmawey”) and his then wife Amani Elmawey (“Mrs Elmawey”) owned and lived at residential premises at 17 Oceanview Road, Maslins Beach. At that time the plaintiff Pierre Monty (“Mr Monty”) was also living at the Elmawey’s house. A day or two before Sunday 19 July 1992 it was decided to invite some friends and acquaintances to share an evening meal. Arrangements were made. Present at the Elmawey’s house that afternoon and evening was Mr & Mrs Elmawey, Mr Monty, a female friend that he had invited, Ms Lana Lanco (“Ms Lanco”) and the second defendant Ali Wais (“Mr Wais”). These five people were friends or acquaintances of each other. Mr Monty and Mr Wais had known each other for many years. Mr Monty had known Mr Elmawey for a number of years, but not as long as he had known Mr Wais. Mr Elmawey and Mr Wais were friends who had known each other for some years. Mr Monty and Mr Wais had not known Mrs Elmawey for as long as they had known her husband. Mrs Elmawey had only been living in Australia for about eight months at that time. She was unable to speak English very well at that time. Mrs Elmawey and Ms Lanco were not well known to each other.
By all accounts there was pre-dinner socialising between the five people who gathered at the Elmawey’s home at Maslins Beach. There were some pre‑dinner drinks. The evening started pleasantly. The five people ate dinner at a rectangular shaped dining table. Mr Elmawey was seated at one end of the table. Mrs Elmawey and Ms Lanco were seated on each side of the table closest to Mr Elmawey. Mr Monty and Mr Wais were seated on each side of the table furthest from Mr Elmawey. When they started dinner there was pleasant conversation between them as they ate.
During the course of the dinner Mr Monty and Mr Wais discussed certain aspects of each of their lives and the lives of each other. They had known each other off and on for several years, both in Sydney and in Adelaide. Their conversation moved from initially being good natured to each of them saying things that were critical of the other and were critical of certain aspects of the lives of the other. Both men had drunk and were drinking alcohol before and during dinner. There was evidence that over what might have been as long as an hour Mr Monty’s and Mr Wais’ statements to each other were becoming more and more aggressive, loud, insulting, and pointed.
The other three people at the dinner table were aware of what was initially good-natured banter between the two men at the end of the table, but which gradually became something more than that. Those three people had various recollections of what was being said between Mr Monty and Mr Wais and the manner in which it was said. Ms Lanco said that she was not taking that much notice of what the two men at the end of the table were talking about and she could not remember much about what was said between them. The recollections of Mr and Mrs Elmawey were not clear. The fact that none of those three people had a clear memory of what was being discussed between Mr Monty and Mr Wais is hardly surprising because they were, at trial, attempting to give evidence of events that had occurred more than thirteen years before. Mr Monty himself was unable to recall or describe accurately what the argument had been all about and what he and Mr Wais may have said to each other. There was wine and/or some spirit drunk by each of the five people during dinner.
At what was probably about 9 pm Mr Elmawey suggested that the five people go to another room in the house to watch a video. He said that he made that suggestion because he thought it might “cool down the mood” that had been created by Mr Monty and Mr Wais. I find that Mr Elmawey made that suggestion for that reason.
The five people then got up from the table. The two women went to the lounge room but Mr Monty, Mr Elmawey and Mr Wais went out the front door of the house into the front yard of the house. How they came to go outside to the front of the house and what happened when they were there was the subject of conflicting evidence. What does appear clear, however, is that Mr Monty and Mr Wais again spoke to each other and there was a physical altercation between the two men. It appears to be undisputed that this occurred within minutes of the three men going out into the front garden. At some point Mr Monty and Mr Wais were facing each other, they had their arms around each other and were grappling with each other. The two men fell by or into a garden bed adjacent to a concrete driveway at the front of the house. Mr Wais got up, but Mr Monty did not. He said to the other two men that he could not get up as he could not move. Mr Monty’s evidence was that Mr Elmawey and Mr Wais lifted him up and started to walk with him towards the front door of the house. After they had taken a number of steps he told them to stop and put him down. They put him down with part of his body still in the garden bed and part on the concrete driveway.
Mr Elmawey then called an ambulance. An ambulance came and took Mr Monty to hospital. It is alleged that Mr Monty sustained a fracture dislocation of his C4 and C5 vertebrae with major retropulsion of bone fragments into the spinal canal thereby rendering him a quadriplegic. For the purposes of this judgment I accept that Mr Monty sustained such a fracture and was thereby rendered a quadriplegic.
Mr Monty first saw a lawyer regarding the incident at Mr and Mrs Elmawey’s house whilst he was in hospital. He saw three solicitors before 19 July 1995. That is the date by which any action in which the damages claimed consist of or include damages in respect of personal injuries shall be commenced (s36, Limitation of Actions Act 1936).
There were attempts by Mr Monty, either directly or through solicitors, to encourage the police to charge Mr Wais with the crime of assault. I find that those attempts were made, at least partially, to assist in a claim Mr Monty wished to be made on his behalf for criminal injuries compensation. I find that his first three solicitors probably advised Mr Monty that his prospects of obtaining compensation under the Criminal Injuries Compensation Act 1978 would be assisted if the police prosecuted Mr Wais for assault. I also find that Mr Monty received some advice concerning his right to seek damages in a civil claim against Mr Elmawey and/or Mr Wais. I find that he was told by at least one of his first three solicitors that a civil claim against Mr Elmawey and/or Mr Wais would have its difficulties, not the least of which would be the cost of doing so. I find that Mr Monty was advised at least by his third solicitor Mr Kane that any civil proceedings against Mr Elmawey and/or Mr Wais had to be commenced within three years of the incident out of which his quadriplegia arose.
I find that Mr Monty did not instruct any of the three solicitors who acted for him prior to August 1995 to institute civil proceedings against Mr Elmawey and/or Mr Wais. No such proceedings were instituted within the three years next after the alleged cause of action accrued.
A Summons was filed in this court on Mr Monty’s behalf on 15 January 1999. At that time Mr Matthew Selley (“Mr Selley”) was acting for Mr Monty. I find that Mr Selley drafted the Statement of Claim on behalf of Mr Monty. By this action Mr Monty sought damages against both Mr Elmawey and/or Mr Wais.
The plaintiff’s claim
In his Statement of Claim Mr Monty alleged that Mr Elmawey was the owner and occupier of his house at Maslins Beach. That was admitted by Mr Elmawey in a Defence filed by solicitors on his behalf. Mr Monty alleged that Mr Elmawey was at all material times a qualified nurse. That was denied by Mr Elmawey.
It was alleged by Mr Monty that there was an agreement between he and Mr Elmawey as to the terms upon which he could reside at Mr Elmawey’s house. It was alleged that an implied term of that agreement was that for so long as Mr Monty resided in the house, Mr Elmawey would exercise reasonable care and diligence so as to ensure Mr Monty’s safety. It was alleged by Mr Monty, and agreed by Mr Elmawey, that Mr Monty stayed at Mr Elmawey’s home for a time, but Mr Elmawey denied that there was any implied term of any agreement that Mr Elmawey would exercise reasonable care and diligence so as to ensure Mr Monty’s safety whenever he was there. It was agreed between Mr Monty and Mr Elmawey that whilst Mr Monty was at Mr Elmawey’s home he undertook some maintenance to Mr Elmawey’s house.
It was alleged by Mr Monty that further, or in the alternative, Mr Elmawey invited Mr Monty and a guest of his choosing to attend a dinner party at the Elmawey house on the evening of 19 July 1992. (That invitation was on or about 18 July 1992.) It was alleged to be an oral invitation by Mr Elmawey to Mr Monty. Mr Elmawey did not plead to that allegation but Mr Wais did in a handwritten Defence dated 1 June 2004 and filed 7 June 2004. Mr Wais alleged that his belief was that Mr Monty was not invited to the dinner party. In an undated Reply to this Defence filed by Mr Monty, who at that time was acting on his own behalf, said that he (Mr Monty) “was residing at the premises and had cooked the meal for the dinner party and did not need an invitation”.
Mr Monty alleged against Mr Elmawey that by Mr Elmawey’s invitation to him to attend the dinner party he, Mr Elmawey, warranted to Mr Monty that he would take all reasonable steps to ensure Mr Monty’s safety at the house and would take all reasonable steps necessary to prevent or limit the risk of injury to him. It was alleged that Mr Monty accepted the invitation relying on that warranty. Mr Elmawey denied there was any such warranty.
Mr Monty alleged, and Mr Elmawey admitted, that Mr Monty and his friend Ms Lana Lanco attended at the house for dinner and Mr Wais also attended having been invited by the first defendant to do so.
Mr Monty alleged that at approximately 9 pm on 19 July 1992 and during the course of the dinner party Mr Wais assaulted and battered him causing him to sustain significant personal injuries. Mr Monty particularised that pleading. He alleged that immediately prior to the assault and battery he and Mr Wais were involved in a heated discussion in the front garden of Mr Elmawey’s house. Mr Wais threw a punch at him which he blocked and he pushed Mr Wais away from him. He told Mr Wais that he did not wish to fight with him and proceeded to walk towards the house. Whilst he was returning to the house Mr Wais threw his body against Mr Monty’s body, causing Mr Monty to lose balance and fall. That act was alleged to be the assault and battery. Mr Monty alleged that the force of the battery was such that he fell backwards heavily landing on his head, neck and shoulders. He alleged that Mr Wais’ momentum caused Mr Wais to fall along with him landing on his chest. That was alleged to be the fall. It was alleged by Mr Monty that the force of the battery was such that his fall was rapid and his impact with the ground represented such a violent cessation to his momentum that it caused him to sustain a fractured dislocation of his C4 and C5 vertebrae.
These allegations were denied by both Mr Elmawey and Mr Wais. Mr Elmawey alleged that at approximately 9 pm on the night of the incident Mr Wais was in the process of leaving the dinner party and walking to his motor vehicle parked in the driveway of the house. He alleged that Mr Monty approached Mr Wais as Mr Wais was attempting to leave. Mr Monty and Mr Wais grappled with each other. Mr Elmawey told Mr Monty to cease his conduct. Mr Monty and Mr Wais appeared to be wrestling, as a result of which Mr Monty fell backwards onto the ground with Mr Wais falling on top of him. Mr Wais stood up following their fall at which time Mr Monty complained that he was unable to stand up and that he could not feel his legs. Mr Elmawey alleged that from his observations of both Mr Monty and Mr Wais, Mr Monty was at all times the aggressor.
Mr Wais alleged in his Defence that Mr Monty punched him without provocation and when he was holding Mr Monty to stop him from hitting him further, Mr Monty slipped on wet grass.
Mr Monty alleged that the assault and battery was activated by malevolence towards him on the part of Mr Wais and was intended by Mr Wais to cause him to apprehend a likelihood of injury to Mr Monty and caused injury to him. Mr Elmawey and Mr Wais denied these allegations.
Mr Monty alleged, in the alternative, that the actions of Mr Wais were negligent in that a reasonable person in his circumstances would have foreseen that he could sustain injury as a consequence of Mr Wais’ actions. Mr Elmawey (unnecessarily) denied that allegation and said that Mr Monty was the author of his own misfortune and from his observation Mr Wais was undertaking defensive action to ward off the attacking Mr Monty.
Mr Monty alleged, further, that Mr Elmawey promoted the assault and battery and/or failed to take such steps as were open to him to take, and which a reasonable person in the circumstances would have taken, to avert or prevent the assault. Mr Monty alleged that thereby Mr Elmawey was in breach of the agreement earlier alleged as to the circumstances in which Mr Monty was living at the Elmawey house, he was negligent and in breach of his duty of care to Mr Monty owed as a consequence of the relationship between he and Mr Monty as invitor and invitee, and he was in breach of the pleaded warranty that Mr Elmawey would take all reasonable steps to ensure Mr Monty’s safety at his house. These allegations were denied by Mr Elmawey.
Mr Monty particularised his allegation that Mr Elmawey had promoted the assault and battery and/or failed to take steps to avert or prevent it. He alleged that immediately prior to the assault and battery Mr Elmawey had witnessed the altercation between Mr Monty and Mr Wais in the front garden of Mr Elmawey’s house. He alleged that Mr Elmawey overheard Mr Monty say to Mr Wais that he did not wish to fight with him. He alleged that Mr Elmawey knew, or ought to have been aware, that Mr Monty was returning to the house for the purpose of extricating himself from a hostile situation in which Mr Wais was desirous of battering Mr Monty. He alleged that Mr Elmawey encouraged Mr Wais to assault and batter him and that Mr Elmawey promoted and aided and abetted in the assault and battery by uttering provocative words to the effect “Go on, hit him”, and “You are not going to take that”, after the altercation of the heated discussion in the front garden and when Mr Wais had thrown a punch at Mr Monty which Mr Monty had blocked and pushed Mr Wais away from him. Mr Monty alleged that Mr Elmawey was aware that Mr Wais was intoxicated, that Mr Wais had a propensity to violence, that Mr Wais had been acting in a hostile manner towards Mr Monty from the moment that Mr Monty arrived at the house and was desirous of assaulting and battering Mr Monty. He alleged that Mr Elmawey was aware Mr Wais was intoxicated because he had been in his presence throughout the dinner party and had observed Mr Wais consuming a combination of beer, wine and spirits.
Mr Monty alleged that in order to assault and batter him Mr Wais walked towards and past Mr Elmawey in such proximity to him that he, or a reasonable person in his position, could have blocked the path of Mr Wais and, with sufficient force or with convincing words, could have averted the assault and battery or could have at least lessened the force of the assault and battery. Mr Elmawey denied these allegations. He denied that Mr Wais assaulted or battered Mr Monty as alleged. He denied that Mr Monty said to Mr Wais that he did not wish to fight him as alleged. He denied that he knew that Mr Monty was returning to the house to avoid being assaulted by Mr Wais in a situation where Mr Wais wanted to batter him; and he said that Mr Monty actively sought out Mr Wais and assaulted Mr Wais by punching him to the side of the face. He denied that he had encouraged Mr Wais to assault Mr Monty. He denied uttering the provocative words pleaded and he said that he attempted to calm the plaintiff down and told him not to fight Mr Wais. He denied the allegation that he was aware that Mr Wais was intoxicated, that Mr Wais had a propensity to violence and that Mr Wais was hostile to Mr Monty from the time Mr Monty arrived at the house. He said that Mr Wais appeared sober and that he had not at any time observed Mr Wais acting in a hostile manner towards Mr Monty. Mr Elmawey said that his recollection was that Mr Wais had consumed a small quantity of wine throughout the course of the evening.
Mr Elmawey alleged that he saw Mr Monty attack Mr Wais and that he, Mr Elmawey, attempted to prevent the other two men from fighting but he was pushed aside by Mr Monty and that when he pleaded with Mr Monty to cease fighting Mr Wais he was ignored.
Mr Monty alleged that a reasonable person in Mr Elmawey’s circumstances outside the house would not have uttered words of encouragement to Mr Wais and would not have uttered any words which were likely to provoke or encourage an assault and battery by Mr Wais upon Mr Monty. He alleged that a reasonable person would have uttered words to Mr Wais in an attempt to convince Mr Wais that he ought to refrain from assaulting and battering the plaintiff. He alleged that a reasonable person would have intervened in the altercation so as to diffuse the hostility between the other two men. He alleged that a reasonable person would have attempted to prevent Mr Wais from passing a person such as Mr Elmawey when it was foreseeable that Mr Wais was doing so with the intent of assaulting and battering Mr Monty. He alleged that a reasonable person would have placed himself between the other two men to minimise the risk of Mr Wais battering Mr Monty and to protect Mr Monty from foreseeable injury. Mr Elmawey denied these allegations.
Mr Monty alleged that as a consequence of the assault and battery by Mr Wais, or alternatively as a consequence of the negligence of Mr Wais and/or the negligence, breach of contract, breach of duty and breach of warranty of Mr Elmawey, he sustained a fractured dislocation of his C4 and C5 vertebrae with major retropulsion to bone fragments into the spinal canal thereby rendering him a quadriplegic. These allegations were denied by both Mr Elmawey and Mr Wais.
Mr Monty pleaded “in the alternative” to the pleading just referred to, that he was rendered a quadriplegic, not as a consequence of the matters pleaded as to the alleged assault and battery, but as a consequence of Mr Elmawey and Mr Wais lifting and moving him from the position in which he lay after the fall without his consent, when they knew or ought to have known that he had sustained a spinal injury in the fall. He alleged that his being moved by Mr Elmawey and Mr Wais was negligent, particularly having regard to Mr Elmawey’s nursing qualifications, in that a reasonable person in the circumstances would have foreseen that moving a victim of a suspected spinal injury could lead to damage or further damage to the victim’s spinal cord and hence permanent paralysis. Mr Elmawey denied that either he or any other person lifted or moved Mr Monty from the position in which he lay after the fall as alleged by Mr Monty. Mr Wais denied these allegations.
As previously indicated Mr Monty’s Summons was not filed within the time provided in the Limitation of Actions Act 1936. It was about three and a half years out of time. Mr Monty could not, under s36 of the Act, commence any action in which he claimed damages in respect of personal injury after 19 July 1995. The Limitation of Actions Act 1936 empowers a court to extend the three year time limit if it is satisfied that facts material to a plaintiff’s case were not ascertained by him until some point of time occurring after the expiration of that period and that the action was instituted within twelve months after the ascertainment of those facts by that plaintiff. Alternatively, a court is empowered to extend a limitation of time where it is satisfied that a plaintiff’s failure to institute the action within the period of the limitation resulted from representations or conduct of a defendant, and was reasonable in view of those representations or that conduct and any other relevant circumstances. If a court is satisfied of either of the above the court may extend the limitation of time where it is also satisfied that in all the circumstances of the case it is just to grant the extension of time (s48, Limitation of Actions Act 1936).
In his Statement of Claim Mr Monty sought an extension of time to commence this action, pursuant to s48(3) of the Limitation of Actions Act 1936. He alleged that he had discovered two facts material to his case “of which he was not previously aware less than 12 months prior to the issue of the Summons in this action”. He particularised those two facts.
He alleged first that on or about 15 January 1998 he obtained a copy of a transcript of a video-taped interview of Mr Wais conducted by South Australian police on 26 July 1992 regarding the assault and battery. He alleged that he had not previously had the opportunity to consider that transcript which revealed to him that there were significant factual inconsistencies between the accounts of Mr Elmawey and Mr Wais, being the only eye witnesses to the circumstances surrounding the assault and battery. He alleged that those inconsistencies were such as to demonstrate that the accounts of Mr Elmawey and Mr Wais to the police were patently not credible and that, accordingly, the prospects for the successful prosecution of a claim of the type which was the subject of this action, which would principally turn on the credibility of he and the other two men, were much stronger than he had previously had cause to believe. At the trial Mr Monty told me that the inconsistency revealed by the transcript related to whether or not he had fallen on his back or on his front in the fall with Mr Wais. Mr Monty said that he had alleged that he had fallen backwards, on his back, whilst Mr Elmawey and Mr Wais were claiming that he had fallen on his front.
Mr Monty’s second material fact was alleged to have been learnt by him on or about 15 January 1999 when he received a medical report from Mr Brian Cohen. He alleged that that report revealed to him that Mr Wais’ account to the police during the video taped interview of the circumstances of the assault and battery, in particular Mr Wais’ assertion that Mr Monty fell forwards hitting his head on a concrete path, was inconsistent with Mr Monty’s injuries, which were most likely to have been caused by a violent backwards fall. Mr Monty alleged that it thereby became further apparent to him that Mr Wais’ account of the fall, and Mr Elmawey’s account, in which he asserted that Mr Monty had not been moved after the fall, were untrue.
Mr Monty alleged that he did not commence his action prior to 15 January 1999 because he was advised by previous solicitors of three matters. He set out those three matters. First, he was advised that in order for such an action as this to stand reasonable prospects of success he would first need to successfully prosecute a claim under the Criminal Injuries Compensation Act 1978. Secondly, he was advised that a claim under the Criminal Injuries Compensation Act 1978 would have little prospect of success in the absence of a successful prosecution by the police of Mr Wais for assault. Thirdly, he was advised that he could bring a civil claim at any time but that he first ought to concentrate on encouraging the police to re-open their investigations into the incident, which he did.
In the alternative to his pleadings upon which he relied on two material facts (s48(3)(b)(i), Limitation of Actions Act 1936), Mr Monty sought an extension of time on the basis that his failure to institute the action within time resulted from conduct of Mr Elmawey and Mr Wais, and that his failure to do so was reasonable in view of that conduct (s48(3)(b)(ii), Limitation of Actions Act 1936). He gave particulars in support of those allegations.
He alleged that Mr Elmawey gave accounts to the South Australian police in statements taken by them on 12 August 1992 and on or about 13 October 1993 in which he made assertions that were not true. Such assertions were that Mr Monty was the aggressor, that Mr Elmawey attempted to intervene in the altercation to avoid the risk of injury to either Mr Monty or Mr Wais, that Mr Monty’s fall was not caused by any violent act on the part of Mr Wais, and that neither Mr Elmawey nor Mr Wais moved the plaintiff after he fell. Mr Monty also alleged that Mr Wais gave an account to the police in a video taped interview on 26 July 1992 in terms consistent with those of Mr Elmawey just referred to, which account by Mr Wais was untrue. I note here that this pleading refers to a video taped interview of Mr Wais by the police which Mr Monty had earlier alleged had not been obtained by him until on or about 15 January 1998. That was one of the facts material upon which he relied earlier in his Statement of Claim. Accordingly, that conduct by Mr Wais could not have contributed to Mr Monty’s failure to institute the action within three years after 19 July 1992 and, further, his failure to do so based on such conduct could not be said to have been reasonable.
Mr Monty made further allegations of the conduct of Mr Elmawey and Mr Wais which he said reasonably contributed to his failure to institute the action within time. They were that the untruthful accounts of Mr Elmaway and Mr Wais to police, to which he had earlier referred, resulted in the police discontinuing their investigations into the assault and battery. He further alleged that he did not have an opportunity to consider Mr Wais’ account to the police contained in the video taped statement of 26 July 1992 until 15 January 1998, at which time it became apparent to him that, whilst the accounts of Mr Elmawey and Mr Wais corroborated each other, the inconsistencies in their accounts were such as to reveal that the accounts were concocted to mislead the police into believing that neither Mr Elmawey nor Mr Wais were responsible for his injuries. He further alleged that the extent to which the accounts of Mr Elmawey and Mr Wais were untrue became further apparent to him when he received the report of Mr Cohen on 15 January 1999. Insofar as all of these allegations rely on a police record of interview of Mr Wais that Mr Monty did not have until about 15 January 1998 and a medical report he did not have until 15 January 1999 they are not allegations which could be relied upon to explain his failure to institute an action before 19 July 1995.
Finally, Mr Monty alleged that in all the circumstances of the case it is just for the court to grant an extension of time.
As to Mr Monty’s application for the court to extend time in which to institute this action, Mr Elmawey denied that Mr Monty was entitled to an extension of time. Mr Elmawey alleged that the length of the delay was, in the circumstances, excessive, taking into account that Mr Monty had access to earlier legal advice. He further alleged that an extension should not be granted because Mr Monty had failed to provide any or any adequate explanation for the delay in bringing his action. He further alleged that he would be prejudiced in his defence of the action if it was allowed to proceed due to the inability of Mr Monty to serve Mr Wais with the proceedings thereby disabling the court of direct and/or corroborative evidence of the incident and Mr Elmawey’s evidence. Further prejudice would result because of the difficulty for witnesses to accurately recall the incident due to the lapse of time.
Mr Elmawey pleaded that his conduct in the litigation had been exemplary. He further alleged that Mr Monty could have ascertained the facts material upon which he relied well within the three year statutory time limit but he had failed to do so. Mr Elmawey pleaded that it would, in all the circumstances, be unjust and inequitable for the court to grant an extension of time to Mr Monty.
The trial
Mr Elmawey’s allegation regarding prejudice he would suffer in the defence of the action due to the inability of the plaintiff to serve Mr Wais was made at a time when Mr Wais had not been served. Mr Wais was subsequently served and, as previously indicated, he filed a Defence on 7 June 2004. He gave his address as one in Vaucluse in New South Wales, with a landline telephone number and a mobile telephone number. The Defence was handwritten and was not filed by solicitors.
I was told by Mr Monty at various times during the trial of matters that concerned Mr Wais. I was told of difficulties encountered in serving Mr Wais with the Summons. I was told that at some time a Master of this court made telephone contact with Mr Wais during some pre-trial proceeding. I was told that Mr Wais had indicated that he had received no papers in relation to the matter. Mr Monty photocopied numerous papers and sent them to Mr Wais. It was not clear to me whether that occurred before or after June 2004 when Mr Wais filed a Defence. Mr Elmawey gave some evidence about Mr Wais’ movements after July 1992 and about his possible whereabouts as at the trial. He said that Mr Wais had moved back to Sydney after the incident (he thought in 1992 or 1993) and although he, Mr Elmawey, maintained contact with Mr Wais for some time after he had returned to Sydney he had not been able to contact Mr Wais since 2003. He had heard indirectly that Mr Wais may be in New York and be working there. He had left messages, on a phone number he was given, for Mr Wais to contact him, but he had never heard from him. Mr Wais did not attend at the trial of Mr Monty’s action.
The trial commenced before me on Monday 19 September 2005. Mr Monty represented himself and Mr Bell, of counsel, appeared for Mr Elmawey. I had read the Copy Documents (FDN 52). They were recorded as having been filed or transmitted on 30 March 2005. Within the Copy Documents was a “Certificate of Readiness for Trial on Liability Only”. The certificate was dated 6 December 2001 and it was said to have been settled by Frank Condon, solicitor for the plaintiff of Andersons Solicitors. The certificate was in the usual form except that the heading and paragraphs 13 and 14 referred to the hearing being “on liability only”. The estimated length of the trial was three days. Also in the Copy Documents was an “Order for Separate Trial on Liability” dated 31 July 2002 settled by Mr Condon. The court ordered on 29 August 2001 that “This action proceed to trial on the question of liability”.
I received some information at trial (but not by direct evidence) that the trial of the action which had been listed after the certificate and order just referred to had been signed and made did not proceed. That was due to the plaintiff not being ready to proceed. Costs had been ordered in favour of Mr Elmawey against Mr Monty.
Mr Monty was not represented by solicitors by the time of an attendance before a Master of this court on 31 January 2005. A Record of Outcome of that attendance was in the Copy Documents provided to me as the trial judge. The Master noted that Mr Wais had failed to attend on that day, had failed to notify the court of a telephone number where he could be contacted and had failed to either file or serve a contribution notice or a list of documents. The Master noted that as between Mr Monty and Mr Elmawey the pleadings were then closed. Upon questioning Mr Monty in relation to his discovery obligations the Master recorded that he was informed by Mr Monty that Mr Monty had no further documents to discover. The Master recorded that he “reiterated to the plaintiff the importance if possible of his having legal representation”. The Master recorded that Mr Monty informed him “he has endeavoured without success to obtain a lawyer to represent him and that he did not believe any further attempts will be successful”. The Master apparently advised him that even if he was unable to obtain legal representation he might be able to obtain legal advice as to his representation at trial. The Master provided Mr Monty with the telephone number of the Central Community Legal Service. The Master recorded that both Mr Monty and Mr Elmawey were anxious for the matter to proceed to trial as soon as possible. The Master was informed that Mr Elmawey submitted that the trial should proceed at first instance on liability only. Mr Monty did not oppose that course. Accordingly, the Master directed the matter proceed as a trial on liability only. He recorded that he had informed Mr Monty that when the trial commences he will need to be in a position to call evidence and arrange witnesses if these are needed to give evidence on his behalf, and to subpoena documents if these are required and also to have documents ready to tender if these are necessary as part of his case.
Before Mr Monty gave his evidence at the trial he indicated that he wished to call Mr Elmawey as his first witness. I discouraged him from doing so. Mr Monty then gave evidence. I assisted him in the evidence that he gave. He gave evidence from his wheelchair at the bar table. I asked him whether he had prepared himself to give evidence, in other words, whether he had thought about what he wanted to say to me by way of his evidence. He replied: “I guess I have been prepared for it for a number of years, in a way. As best I can I will do that now.” He then gave an account of the night at the Elmawey’s house and what happened both before the dinner, during it and after, when the three men were outside at the front of the Elmawey’s house.
When Mr Monty had finished describing the events of that night he said that he felt that he was on trial. When I asked him why he replied that he didn’t understand how someone injures someone in the way that he was injured and that another person who could have done a lot about it didn’t do anything about it. He felt like he had done something wrong. On other occasions during the trial Mr Monty expressed similar sentiments to me. I got the impression that he considered that the insurer of a person who was involved in an incident whereby he became a quadriplegic should pay compensation to him, just by virtue of the fact that he had gone to that person’s house one evening and had left it as a quadriplegic. Although Mr Monty seemed to have a better understanding of what the issues in the case were as the trial proceeded to its conclusion in June 2006, I am not confident that he understood more than superficially some of the more complex issues that arose during the trial as to evidence, and as to what he needed to prove to establish liability against Mr Elmawey and/or Mr Wais
As part of his case at trial Mr Monty called to give evidence Mr Matthew Selley, one of his earlier solicitors, and he called Ms Coral Coleman, another of his earlier solicitors. He called Ms Lanco. He also called two witnesses who had been spoken to by Mr Elmawey at the hospital after the incident.. Mr Bell called Mr Robert Kane, who was another of Mr Monty’s solicitors. Mr Bell opened Mr Elmawey’s case and he called Mr Elmawey and examined him in chief. His examination-in-chief concluded before lunch on Thursday 29 September 2005 (the 9th day of trial).
After Mr Bell had completed his examination-in-chief of Mr Elmawey, Mr Monty applied for an adjournment (transcript, page 433). He informed me that although he had tried on numerous occasions to try and find someone to represent him he had had no luck in doing so because he had no money. He told me he had spoken to a solicitor who was prepared to seek someone to act for him. He said he needed time. He said: “This is just too much. I thought I could do this but it’s proving to be very difficult and it’s affecting me not in a good way as far as my health. I wish to have a little time to be able to get some legal representation to help me in this situation”.
Upon hearing further submissions, and upon satisfying myself that Mr Monty had spoken to a solicitor who had given him some cause to believe that legal representation would be provided to him, and being influenced by the fact that I could not sit to continue to hear the trial past the following day, I granted Mr Monty’s application to adjourn the trial. I made some orders as to costs.
At a directions hearing on 21 October 2005 counsel appeared for Mr Monty on instructions from the solicitor to whom Mr Monty had earlier referred. (I was later told that that solicitor subsequently filed a Notice of Acting.) I was told that a subpoena had just been issued directing the Director of Public Prosecutions to produce documents. They were produced in two bundles. Each bundle was marked for identification. One was marked with a sticker indicating that the DPP claimed legal professional privilege over the documents in that bundle. I granted leave to both parties to examine the bundle of documents over which legal professional privilege was not claimed. After discussion with counsel I directed that the trial would resume on 11 January 2006, with three days set aside.
Between 21 October 2005 and 11 January 2006 I made some orders regarding the provision of transcript to both parties and the waiving of copying fees.
Just before 11 January 2006 I was advised that Mr Monty’s counsel had fallen ill. He could not appear for Mr Monty at the resumption of the trial. I was also informed that Mr Elmawey’s solicitors would not oppose the dates for the resumption of trial being vacated and for new dates to be fixed. I fixed a directions hearing for 18 January 2006.
On 18 January 2006 another counsel appeared for Mr Monty. He informed me that he had only received instructions the previous night. He had not yet seen any papers at all. He only had brief details of the matter. There was a discussion about counsels’ and the court’s availability. I directed that the trial would resume on Monday 5 June 2006, with three days set aside. I reserved the question of costs of the adjournment.
By the resumption of the trial on Monday 5 June 2006 I had heard nothing directly from either party although I had been informed that Mr Monty had filed at court a notice that he was acting for himself in person. The solicitor who had acted for him since the trial was adjourned the previous September had filed a notice that he had ceased to act. He had assisted Mr Monty in filing a notice that he acted for himself in person. Mr Monty told me that he thought that he had filed that notice about four weeks prior to 5 June 2006.
Upon resumption Mr Monty told me he appeared and he was “looking at having the matter adjourned again, if possible”. He said that he had been in touch with the counsel to whom he had referred on 29 September 2005 and who had become ill in January 2006. He told me that that counsel had informed him that he would be ready to take his matter on again. That counsel had informed Mr Monty that he would be back at work at the end of June, early July, that he was quite prepared to take on the matter and that the solicitor who had acted for him was also prepared to act as his solicitor. He told me that he found out that information on Friday 2 June 2006.
When I questioned Mr Monty about the other counsel who had appeared before me when the date to resume the trial was fixed, he told me that he was not very confident with the advice that he had been given by that counsel. As a result he was then going to do the matter himself and then the earlier counsel has come back and informed him that he could do it. That was the previous Friday, 2 June 2006.
I asked Mr Monty what he had done since 3 May 2006 in preparation for the resumption of trial. This was the date I was told that Mr Monty had filed a notice that he was acting for himself. He said he had read the transcripts a numbers of times and had prepared some sort of questions, but he needed another barrister to act for him or to get someone to act for him.
Mr Monty informed me, when questioned, that he had made no contact with Mr Bell or Mr Bell’s instructing solicitor before that day, Monday 5 June 2006, informing them of the application he would be making to adjourn the trial again.
Mr Bell, on behalf of Mr Elmawey, opposed Mr Monty’s application. Mr Bell informed me that on 4 May 2006 he had spoken to the solicitor who had filed a Notice of Acting after the trial had been earlier adjourned. Mr Bell had been told that he was no longer acting in the proceedings and that Mr Monty was going it alone again. Mr Bell informed me that he had prepared the case to resume the trial, and that witnesses were arranged for that week for the conclusion of the trial. He submitted that I might infer from what Mr Monty had said to me that the counsel who had replaced the one who had fallen ill in January 2006 had given Mr Monty advice that he didn’t like. He submitted that the only remaining matters for the completion of the trial were Mr Elmawey’s cross-examination, evidence from Mrs Elmawey and short evidence from a police officer. Mr Bell informed me that his instructing solicitor had just spoken to the solicitor who had acted for Mr Monty for a time since the trial had been adjourned. That solicitor had advised Mr Bell’s instructor that that solicitor had given no undertaking that he will act for Mr Monty. Apparently the counsel who had fallen ill, who Mr Monty had indicated he had again spoken to, had indicated that he would get back to the solicitor. That had not occurred by that day, 5 June 2006.
I refused Mr Monty’s application for a further adjournment. I considered that by 3 May 2006 Mr Monty had determined that he would conduct the rest of the trial himself. He had prepared to do so. It was not until the last business day before the date set for the trial to resume that he decided that he would not conduct the remainder of the trial himself, but would try and get legal representation to do so. As a result of that delay neither solicitor nor counsel was able to appear to resume the trial on 5 June 2006. Mr Elmawey’s advisers had no notice of the application to further adjourn and had prepared themselves for the trial to resume and to conclude in the week beginning 5 June 2006. I was not satisfied at the time I refused Mr Monty’s application that, had it been granted, I could have any confidence that he would be represented at a time at which the trial was set to resume. I considered that it was likely that we would be in the position as we then were, regarding legal representation for Mr Monty, had I adjourned the trial again.
The trial resumed.
I first allowed Mr Monty time to inspect one bundle of documents produced by the Director of Public Prosecutions, over which legal professional privilege was not claimed. That had not been done in the period since I gave leave to do so on 21 October 2005. Mr Monty then cross-examined Mr Elmawey.
On 6 June 2006 Mr Monty’s cross-examination of Mr Elmawey was interrupted so that I could hear submissions from counsel for the Director of Public Prosecutions regarding the claimed privilege for a bundle of documents produced by the DPP. I upheld the Director’s claim for legal professional privilege and directed that no-one inspect the documents within that bundle produced by the DPP (Exhibit C18MFI). Mr Monty concluded his cross-examination of Mr Elmawey. Mrs Elmawey was then called by Mr Bell and cross-examined.
On 7 June 2006 a police officer was called by Mr Bell and cross-examined. There was some further questioning of Mr Elmawey. The matter was adjourned to the following day to allow Mr Monty time to see if he could get in touch with another possible witness. He was unable to do so. I refused his application for a further adjournment so that he could make further enquiries as to that witness, of whose whereabouts he had no knowledge.
After some discussions about the basis upon which some documentary evidence was received as evidence, and after refusing a further application by Mr Monty to inspect the DPP’s privileged documents, the trial concluded with addresses. They finished at lunchtime on 9 June 2006.
The witnesses
All of the people that were at the Elmawey’s house for dinner on Sunday 19 July 1992, with the exception of Mr Wais, gave evidence at the trial. Mr Monty and Ms Lanco gave evidence of events that had occurred over thirteen years before they gave evidence. Mr Elmawey gave his evidence-in-chief in September 2005 and was cross-examined in June 2006. Mrs Elmawey gave her evidence in June 2006, almost fourteen years after the events about which she was called to give evidence.
I am convinced that the recollection of each of these four witnesses has been affected adversely by the passage of those years. All of these witnesses had difficulty recalling certain details about some of the events of that night and some of the events of the days that followed. I consider that each of the four witnesses have reconstructed some of the evidence they gave. I consider that both Mr Monty and Mr Elmawey were consciously reconstructing certain of their evidence. It is difficult for me sometimes to identify what is reconstruction and what is memory of the events about which they all gave evidence.
All the comments I have just made apply as much to Mr Monty as to the others. Mr Monty’s life changed catastrophically within minutes. None of the four witnesses said that the events that occurred outside the Elmawey’s house that evening took more than about three or four minutes. In that time Mr Monty changed from being a young, fit and vibrant man to a quadriplegic. Furthermore, since that night he has been pursuing what he described as “the truth”. He told me at one point of the trial that this action was commenced not for the money, but so that the truth may be known.
One might expect, in those circumstances, that Mr Monty might be in the best position to accurately and reliably recall the events of that evening. I do not consider that that applies in this case. There was much about the detail of the events of which Mr Monty gave evidence that he could not recall. For example, he appeared to have little clear recollection, before being prompted, of what were the topics he discussed with Mr Wais at the dinner table, which discussion was the genesis for what occurred. There were other features of Mr Monty’s evidence that caused me to wonder whether I could rely on some of the evidence that he gave on significant matters. That is not to say that I considered that Mr Monty was at any time intentionally wishing to mislead or deceive me as to the events he recounted. I say that notwithstanding the fact that on two occasions during the trial he said things to me which he knew to be untrue. At one point during his evidence he told me that he did not have a letter from a former Director of Public Prosecutions with which he received the transcript of Mr Wais’ record of interview with police on 26 July 1992. He told me that when he well knew that he did have such a letter. It was produced later in the trial. The other occasion was when he told me that he had been through all his documents and there was nothing contained within any of them on the extension of time point. He later told me that he had not been through all his documents. As to the first matter, I consider that Mr Monty told me something he knew to be untrue because he did not have a former Director of Public Prosecutions’ authority to release the letter to anyone, including to me at the trial. As to the second matter, I do not consider that, in the circumstances that surrounded it, to be indicative of Mr Monty’s lack of credibility generally.
Notwithstanding the above, there were some matters upon which I had doubts as to Mr Monty’s reliability. There is no doubt that the events that were the subject of the trial have gone over and over in Mr Monty’s mind for over thirteen years. I am satisfied that he has, in a number of respects, convinced himself of certain detail regarding the events. He asserted some matters with apparent authority and conviction. I accept that he believes the majority of which he told me. I do not consider, however, that all of it is now reliably recounted by him.
A good example of this is Mr Monty’s evidence about whether or not he asked Mr Elmawey and Mr Wais to pick him up off the ground after he and Mr Wais together fell to the ground. Mr Monty’s claim, in the alternative, was that he was rendered a quadriplegic as a consequence of Mr Elmawey and Mr Wais lifting and moving him from the position in which he lay after his fall with Mr Wais. It was pleaded that that had occurred without his consent when they knew or ought to have known that he had sustained a spinal injury in the fall. When he was cross‑examined by Mr Bell, Mr Monty was asked whether he had told police when he gave them a statement on 12 May 1994 that he had asked Mr Elmawey to pick him up after he had fallen and whether he had said to Mr Elmawey he would be all right. Mr Monty said that “maybe I didn’t say what I actually was meaning at the time”. He said that what he was thinking at the time was that Mr Elmawey had asked him to pick him up and he had agreed with that. When Mr Monty was asked to concentrate on what was being put to him, which was a suggestion that he had told police that he (Mr Monty) had asked Mr Elmawey to pick him up, Mr Monty replied “Yes, I guess I did.”. He was then asked why his Statement of Claim referred to Mr Elmawey picking him up without his consent. He replied “because it was mainly panic; I didn’t know what to do, you know, he suggested to lift me up and I went along with it”. Later in cross-examination Mr Monty maintained that that part of his purported statement to police was incorrect. He agreed that he never got back to the police at Christies Beach to seek to make a correction to that document. He said that instead he made a complaint to the Police Complaints Authority saying that the matter had not been investigated properly. It transpired that his complaint to that Authority was made after he had received and had read what purported to be his statement to police of 12 May 1994. I am satisfied, and find, that there is no reference in his complaint to the Authority regarding any errors in his statement to police of 12 May 1994. Mr Monty pointed out where in his statement it was that he complained but I reject his evidence as to that. I do not think that even Mr Monty thought that his evidence on that topic was accurate. I thought Mr Monty’s evidence on this topic was contrived. I consider that Mr Monty well understood what was being put to him and that he dissembled in his answers to avoid answering questions on this topic because he knew that it was not part of his complaint to the police about inaccuracies in statements they had taken from him. Mr Monty was later reminded of his earlier evidence that he had agreed that “he guessed” he had told police that he had asked Mr Elmawey to pick him up. He again dissembled, in reply. He said that he went along with Mr Elmawey and what he was suggesting. He agreed that what he had said earlier when he guessed he had told police what is recorded in his statement was inconsistent with evidence that he later gave on this topic.
There were other times during Mr Monty’s evidence that I considered that he was feigning misunderstanding of questions asked of him. One example is his answers to questions relating to a letter he received from Ms Coleman (Exhibit P3) at Transcript, pages 265 – 270). Mr Monty is an intelligent man. There were some times I was satisfied that he professed not to understand certain questions because he realised that true and direct answers to them would not assist his claim. That has caused me to have some doubt about Mr Monty’s reliability in some of the evidence that he gave at trial. However, I have not concluded that he was knowingly dishonest about any of his evidence. It is just that in some cases his belief as to the rightness of his cause would not allow him to make concessions which he knew were inconsistent with it.
Ms Lanco did her best to recall what she could. Understandably, she said that she could not recall a number of things. She said she wasn’t really taking much notice of what Mr Wais and Mr Monty were “having a go at each other about” during dinner. She just remembered the two men arguing and they became quite aggressive towards each other. She wasn’t interested and she tried to ignore what Mr Wais and Mr Monty were arguing about. She said she went outside when she heard Mr Monty call out that he could not feel his legs. That was when she was aware that the men were outside. Ms Lanco’s evidence was of some assistance to me in resolving issues of fact where I have been able to resolve them, but that is subject to her acceptance of the limits to her memory after so long.
Mr Elmawey gave evidence between thirteen and fourteen years after the events which were the subject of his evidence. There were some aspects of his evidence that I considered to be unreliable as a result of the effluxion of time and also because I considered that occasionally he was consciously trying to put his case in the best possible light. One example is his evidence about what everyone drank that night, including himself and Mr Wais. Mr Monty cross-examined him about a statement he had earlier given to police when he had said that neither he nor Mr Wais drink alcohol. Mr Elmawey did not deny that was what he told police. His explanation in his cross‑examination as to what he meant when he told police that was unconvincing. Apart from these few instances I did not come to the conclusion that Mr Elmawey was intentionally trying to deceive me in the evidence that he gave at the trial. I consider that Mr Elmawey’s evidence as to the events of that night are generally reliable, although I am not convinced that Mr Elmawey now has a clear memory of some of the details of those events.
Mrs Elmawey did her best to recall the events of that night. As I have previously indicated, her knowledge of English at that time was poor. She had not been in Australia that long when these events occurred. She did not see much of what happened outside her house that night. She said she looked through the blinds at one stage and saw a little bit of wrestling between Mr Monty and Mr Wais, but that was only for a few seconds. She said that she went outside briefly at one time and that the two men were probably on the ground at that stage. Her husband told her to go back inside. She said that when she went out again later Mr Wais was on his feet but Mr Monty said he couldn’t get up. She said that she then checked his legs and he had no feeling in them. She said she couldn’t remember giving a statement to police.
It is unnecessary here to refer to the other witnesses. They gave no direct evidence as to the events of that night.
The issues for decision
When the trial commenced on Monday 19 September 2005 I sought to identify and establish what issues were the subject of the “trial on liability only”. I wished to do that at the earliest time so that the parties and I had a common understanding as to what issues would be the subject of the trial before me. I was particularly concerned to identify whether the parties had a common view that the order for trial “on liability only” encompassed a decision on the matters raised by Mr Monty’s allegations in paragraphs 17, 18 and 19 of his Statement of Claim. These were issues that I referred to as questions relating to causation at various times during the trial. I was concerned at the commencement of the trial and during it that Mr Monty did not refer to any intention by him to call any expert medical opinion as to the cause of his quadriplegia, it having been pleaded as resulting either from his fall with Mr Wais in the front area of Mr Elmawey’s house, or alternatively from Mr Elmawey and Mr Wais lifting and moving him from the position in which he lay after the fall.
I identified the following issues that may be encompassed by the direction that the matter proceed as a trial on liability only. They were:
(1) whether Mr Monty is entitled to an order that I extend the time prescribed by the Limitation of Acts Act 1936 such as to allow Mr Monty to commence this action against either or both Mr Elmawey and Mr Wais.
(2) whether Mr Elmawey and/or Mr Wais are liable in damages to Mr Monty on any of the causes of action pleaded by Mr Monty against either or both of them.
(3) whether Mr Monty sustained injuries rendering him a quadriplegic in his fall with Mr Wais as a result of Mr Wais’ assault and battery of him or, alternatively, as a result of Mr Elmawey and Mr Wais lifting and moving him from the position in which he lay after the fall.
Mr Bell told me that his understanding was that the trial encompassed all of these three issues. Mr Monty told me that he thought he agreed that the third issue was a matter for determination by me. I indicated that I was most concerned to establish whether there was a common understanding between the parties that the third issue was to be determined by me on a trial on liability only.
I raised that issue with Mr Monty from time to time throughout the trial. I raised it at times when it became apparent to me that Mr Monty intended to call no medical evidence as to the question of whether his quadriplegia was caused by the fall or the lifting and moving of him after the fall. I informed Mr Monty from time to time that his failure to call any evidence on the causation issue might have serious consequences as to my ability to determine the issue of causation. At one stage I asked him whether or not he had an understanding as to what caused his quadriplegia, or what medical opinion on that topic would give him the best chance of obtaining a favourable judgment against either or both of Mr Elmawey or Mr Wais. Mr Monty told me that he thought that both the fall and the lifting and moving might have contributed to his quadriplegia. As to the second question he said that the “truth” would best serve his purposes at trial.
I was eventually satisfied that Mr Monty understood the issue as to causation because on Monday 26 September 2005 (in the second week of the trial) he sought an adjournment of the trial so that he could seek and obtain some medical evidence. I refused his application to adjourn on that basis because he could not tell me from whom it was he would try and obtain a medical opinion, when that opinion might be obtained and what it might disclose. In other words, I was satisfied that he wanted me to adjourn the trial indefinitely so that he could find some doctor who would express some opinion on the issue as to causation.
As it happened the trial adjourned for other reasons on Thursday 29 September 2005. I made orders soon after that date which had the effect of making a transcript available to Mr Monty and his legal advisors, including counsel, whom he had instructed by 21 October 2005. The trial did not ultimately resume again until Monday 5 June 2006. That was more than eight months after it had been adjourned in September the year before. No medical evidence was offered by Mr Monty when the trial resumed on 5 June 2006. I was not informed of any attempts by Mr Monty to obtain a medical opinion or opinions on the question of causation.
At the end of the trial no such evidence was before me. The only medical evidence that was before me related to the question as to whether a fall forwards or a fall backwards was more likely to have caused Mr Monty’s injuries leading to his quadriplegia. That evidence, however, was only before me on a limited basis. It was admitted only on the basis that it was relevant to the issue of whether the time in which Mr Monty could institute these proceedings should be extended. That evidence was not admitted as evidence of the doctors’ opinions, but only as evidence of what Mr Monty ascertained as to their opinions.
I now deal with each of the issues identified as being the issues for determination by me on this trial on liability only.
Extension of time
Any application to extend time in which to institute proceedings which are out of time is one whereby a plaintiff seeks an indulgence of the court. I do not consider that such an extension must be made, even where the parties consent to it being made. Consent will be relevant to the discretion. In this case Mr Elmawey opposed an order extending time to institute proceedings. Mr Wais denied one paragraph (paragraph 21) of Mr Monty’s Statement of Claim that relates to the extension of time. I consider that I must determine whether or not to extend time for Mr Monty to institute proceedings against both Mr Elmawey and Mr Wais.
I have already referred to Mr Monty’s pleadings by which he seeks an extension of time in which to institute this action. The two pleaded facts material to his case are that, on or about 15 January 1998 he obtained a copy of a transcript of a video-taped interview of Mr Wais conducted by police on 26 July 1992 which revealed certain things to him and that, on or about 15 January 1999 he received a medical report from Mr Brian Cohen which revealed certain things to him.
As to the transcript of the video-taped interview of Mr Wais, it is pleaded that that contained significant factual inconsistencies between the accounts of Mr Elmawey and Mr Wais such as to demonstrate their accounts to be not credible and that, accordingly, the prospects for a successful prosecution of this action were much stronger than Mr Monty had previously had cause to believe. It was, in my view, unnecessary for the pleader to refer to what was alleged to have been revealed to Mr Monty by the transcript. As it happens the evidence I heard was not such as to support this pleading. Mr Monty identified the “significant factual inconsistencies” as relating to whether he fell onto his back or onto his front. It was not established by evidence as to what Mr Elmawey’s account to police concerning that matter had been. Furthermore, Mr Monty did not give direct evidence that he considered, having read that transcript, that his chances of success were much stronger than he had previously believed. He gave a number of other different accounts, both in his pleadings and in his evidence, as to why he did not institute civil proceedings earlier than he did. In addition, the thrust of his evidence was that he always believed that Mr Elmawey and Mr Wais were responsible for his injuries and that his cause against them had always been justified.
Notwithstanding the above, I am satisfied that Mr Monty discovered “facts material” to his case, in the relevant sense, on probably 16 January 1998 when he obtained a copy of the transcript of Mr Wais’ record of interview with police on 26 July 1992. That transcript record of interview was itself relevant and admissible in a civil action against Mr Wais as it was material evidence which could be adduced by the plaintiff as evidence of what Mr Wais’ account of the events were, or as a potential document for questioning and tendering in cross-examination. It does not necessarily constitute evidence that Mr Monty would lead as part of his case against Mr Wais, but I am satisfied that the fact that Mr Wais made a statement in the terms recorded is a fact material in the sense that the authorities have construed those words (Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628). How relevant the record is or might have been is a matter which I may take into account when considering whether the granting of an extension of time would be just in all the circumstances. I note that my finding as to when Mr Monty received the transcript of that record of interview is based on Exhibit P11 which is a letter from the former Director of Public Prosecutions to Mr Monty dated 15 January 1998 said to enclose that transcript. Without that letter I would not have been satisfied that Mr Monty received the transcript within twelve months of the institution of these proceedings. It was this letter that Mr Monty had in his possession when he initially told me that he had received no correspondence from the former Director by which that transcript was enclosed. He had earlier told me that he did not know when he received that transcript. That was untrue and he knew it to be untrue when he told me that.
As to when Mr Monty received and read Mr Brian Cohen’s report (Exhibit P2) there was much evidence. Mr Monty’s evidence initially was that he could not remember when he saw it and read it for the first time. He then said that it would have been on or about 15 January 1999 because his solicitor would not have put that in a Statement of Claim if it was not true. His attention was drawn to a received stamp bearing the date 23 or 25 January 1999 which, it later appeared, was placed on the letter by Messrs Piper Alderman, Mr Monty’s solicitors as at that time. Mr Matthew Selley was the solicitor acting for Mr Monty at the time. Mr Selley told me that he was first consulted by Mr Monty in July or August 1997. His cause of action was then out of time. Mr Selley said to Mr Monty that he needed to get anything that Mr Elmawey or Mr Wais had said to police regarding the incident when Mr Monty was injured. He told me that Mr Monty had told him that he had obtained something on 15 January1998 from a former Director of Public of Prosecutions. It appeared to Mr Selley that one issue was whether Mr Monty had fallen forwards or backwards when he suffered his injury. Mr Selley told me that he had sought the opinion of two counsel both of whom had suggested that he obtain an opinion of a medical practitioner regarding the issue of what was more likely to have caused Mr Monty’s quadriplegia. He told me that he sought an opinion from a pathologist on the topic of which was more likely to have caused Mr Monty’s quadriplegia. The pathologist said he was not qualified to give an opinion on that topic. Mr Selley told me that he had then obtained an opinion from an orthopaedic surgeon on that issue. The orthopaedic surgeon said that he was unable to say one way or the other. He then sought an opinion from Mr Brian Cohen. Mr Selley told me that Mr Cohen had told him on the phone that it was more likely that Mr Monty fell backwards rather than forwards in suffering such an injury. Mr Selley said that he was anxious to get Mr Cohen’s views in writing because he intended to plead that opinion as a material fact upon which to rely in seeking an extension of time for Mr Monty. He was aware that he had to issue within twelve months of 15 January 1998 in order to use the police record of the interview with Mr Wais as a material fact. Mr Selley told me that he prepared in draft form a Statement of Claim incorporating Mr Cohen’s opinion as a material fact. He asked Mr Cohen on the phone to fax to him his written opinion. Mr Selley said that Mr Cohen confirmed his views in written form, and he immediately went to court to file the Statement of Claim. Evidence was to the effect that the received stamp of Messrs Piper Alderman was put on Mr Cohen’s letter subsequent to the filing of the Statement of Claim in court on 15 January 1999. Mr Selley did not refer in his evidence to Mr Monty having received and read Mr Cohen’s report dated 15 January 1999 before the Summons was issued.
The ascertainment by any plaintiff of a material fact must be the ascertainment by the plaintiff personally. It is not sufficient if a material fact is ascertained by someone else, including his legal representative.
There was, however, certain evidence that Mr Monty gave early in the trial the significance of which was not apparent at the time at which he gave it. Mr Monty told me that he must have read Mr Cohen’s letter before the form was lodged (presumably being the Statement of Claim) because he remembered Mr Selley giving him a “list” (read “lift”) from Piper Alderman to court. He said that after they had read it he lodged the form that day. He said that he remembered getting a lift to court and they got here before 4 o’clock in the afternoon and they lodged the form and they were in time. I am satisfied that Mr Selley was aware of the significance of dates and he knew the law regarding extensions of time. I am satisfied that Mr Selley would have done all that he could to ensure that both material facts pleaded were made known to Mr Monty personally within the relevant twelve months. I am satisfied that the fact that Mr Cohen had a particular opinion about the likely cause of Mr Monty’s quadriplegia insofar as it related to the mechanics or the facts of the fall, is a fact material to Mr Monty’s case in the relevant sense. It does not matter whether that view is consistent or inconsistent with the plaintiff’s injuries, or whether it is consistent or inconsistent with the versions of Mr Elmawey or of Mr Wais, or whether or not it is the view of other medical practitioners. Whilst those matters are or may be relevant to the discretion, it is sufficient that Mr Cohen’s opinion is a matter which could be led at Mr Monty’s trial and was relevant to an issue to be determined at trial. I consider that it was, and is, both.
Accordingly, I am satisfied that Mr Monty has proved that he instituted his proceedings within twelve months of two “facts material” to his case being ascertained by him, being the police transcript record of interview of Mr Wais of 26 July 1992 and the medical report of Mr Cohen dated 15 January 1999.
The next issue is whether Mr Monty has made out the alternative plea in respect of which he relies, being that his failure to institute the action within three years resulted from conduct of Mr Elmawey and Mr Wais and was reasonable in view of that conduct. I have already set out in detail the particulars upon which Mr Monty relies in this respect. I am not satisfied that any conduct of either Mr Elmawey or Mr Wais caused or contributed to Mr Monty not issuing these proceedings within three years of his cause of action accruing. Mr Monty did not tell me when he obtained the statements of Mr Elmawey that purported to have been taken on 12 August 1992 and on or about 13 October 1993. The evidence established that the latter statement was not taken by the police as pleaded. Mr Monty did not say that he delayed instituting proceedings because of what is in these alleged statements. As previously indicated other pleadings by Mr Monty rely on a video-taped record of interview of Mr Wais, which Mr Monty did not have until after time had expired. The same comment applies to his reliance on Mr Cohen’s opinion which was not obtained by him until a year after he obtained the transcript of the police record of interview of Mr Wais. Mr Monty has not proved or sought to prove that the “untruthful accounts” of Mr Elmawey and Mr Wais to the police resulted in the police discontinuing their investigations into the assault and battery. Mr Monty did establish, and I find, that the police told him on about 22 July 1994 that they would not be charging anyone in respect of the events at the Elmawey house on 19 July 1992. That was before time had expired. There is no evidence that the police told Mr Monty the reason why they were not charging anyone. In any event, Mr Monty was aware far earlier than even 22 July 1994 that the police were not going to charge anyone. That was why he was advised by his earlier solicitors to see if he could get the police to re-open their investigations, which led, at least in part, to Mr Monty being interviewed on 12 May 1994. It is not clear on the evidence who else was interviewed by police at that time. Mr Wais had been interviewed on 26 July 1992, about a week after the incident. Mr Elmawey’s statement (Exhibit P4) is unsigned and undated, as is Mrs Elmawey’s (Exhibit P19).
Finally, Mr Monty gave no evidence to the effect that he failed to institute the action within three years as a result of any conduct of Mr Elmawey and Mr Wais.
Accordingly, the grounds for an extension of time which are based on the pleaded conduct of Mr Elmawey and Mr Wais are not established by Mr Monty.
The final question as to the extension of time is whether Mr Monty has established that in all the circumstances of the case it is just to grant an extension of time.
Mr Monty pleaded in paragraph 20.3 of his Statement of Claim why he did not commence his action in time. He pleaded that it was because he was advised by previous solicitors that, in order for such an action to have reasonable prospects of success, he would first need to successfully prosecute a claim under the Criminal Injuries Compensation Act 1978; that a claim under that Act would have little prospect of success in the absence of a successful prosecution by police of Mr Wais for assault; and that he could bring a civil claim at any time but first ought to concentrate on encouraging the police to re-open their investigations into the incident, which he did. As well as giving some evidence as to these pleaded matters Mr Monty’s evidence went further. This was but one issue upon which Mr Monty did not wish to be confined to his pleadings. On a number of occasions during the trial he stated that a lawyer had written the pleadings. I am satisfied that Mr Selley drew these pleadings, and I am satisfied that he did so on the instructions that he had received from Mr Monty. If Mr Monty had instructed Mr Selley to particularise other reasons for not instituting proceedings in time, I am satisfied that Mr Selley would have included those instructions.
Mr Monty was asked to which of his previous solicitors these pleadings in paragraph 20.3 referred. He said that, in respect of the two particulars referring to the Criminal Injuries Compensation Act 1978, he was so advised by Ms Coral Coleman. As to the third particular, being that he could bring a civil claim at any time, Mr Monty said that Mr Selley gave him that advice. Mr Selley was the solicitor who acted for Mr Monty when he drafted the pleadings so that evidence is inconsistent with Mr Selley drawing a pleading referring to advice received by Mr Monty from his previous solicitors. That implies that they were solicitors Mr Monty had instructed before Mr Selley, and further implies, to me at least, that the advice referred to was given to Mr Monty prior to time expiring. In any event, I do not accept that Mr Selley gave or would have given Mr Monty advice that he could bring a civil claim at any time, but first ought to concentrate on encouraging the police to re-open their investigations into the incident. Mr Selley gave no evidence that he had given such advice. Furthermore, Mr Monty did get the police to re-open their investigations into the incident, but he did that before time expired.
The other two pleadings in respect of this aspect were to the effect that Mr Monty was advised by previous solicitors that a claim under the Criminal Injuries Compensation Act 1978 would have little prospect of success in the absence of a successful prosecution and that he would first need to successfully prosecute a claim under the Criminal Injuries Compensation Act 1978 to stand a reasonable prospect of success in a civil action.
I find that as at March 1995 Mr Monty had been advised by Ms Coral Coleman that she believed that it was not possible for him to obtain compensation under the Criminal Injuries Compensation Act 1978. That was the effect of a letter she wrote to him dated 10 March 1995 (Exhibit P3). I find Mr Monty understood from that letter that he had little prospect of obtaining criminal injuries compensation. I find that he was also aware from that letter and from advice he had previously received from other solicitors that the prospects of him being successful in a civil suit against either or both of Mr Elmawey and Mr Wais was low or non-existent.
At trial Mr Monty told me that Mr Kane advised him that there was a three year time limit in which to institute civil proceedings against either Mr Elmawey or Mr Wais or both. I find that that advice was given to Mr Monty, and was understood by him, well before 19 July 1995 when time expired. I find that legal advice had been given to Mr Monty that although the prospects of him obtaining compensation pursuant to the Criminal Injuries Compensation Act 1978 was greater than his prospects of obtaining civil damages, his prospects of obtaining criminal injuries compensation were minimal. Those prospects, however, would improve if there was a successful prosecution of Mr Wais.
Mr Monty told me in evidence that he had received advice from a number of solicitors that if time expired he would get an extension of time so long as it could be seen that he was doing something. He said that he was told that an extension of time would not be an issue, or a big issue, if it could be seen that he was doing something about the case. He said that both Mr Kane and Ms Coleman gave him advice to that effect. He repeated his evidence to that effect several times during the trial. There was evidence that he had written to Mr Selley to the effect that Mr Kane had told him that an extension of time for a civil claim could be easily achieved by someone in his position, being wheelchair bound and given the extent of his injuries. Furthermore, it would need to be shown that he was pursuing his case in one way or another. Mr Monty told me that the solicitors he had seen prior to time expiring had told him that a civil action would costs hundreds of thousands of dollars which he then did not have. He said that he had decided not to proceed with civil proceedings because he couldn’t afford to do so at a time before time expired. He said he was seeking to find a solicitor who would take on the matter for him for free, or at least for free until judgment. Mr Monty could not explain why the subject-matter of those two explanations were not pleaded in his Statement of Claim. I am not satisfied that either of these reasons were reasons why Mr Monty did not institute proceedings within three years of the cause of action accruing. I am satisfied and find that he was aware of that three year time limit. I find it probable that he was advised that his prospects of obtaining an extension of time in which to institute proceedings under the Criminal Injuries Compensation Act 1978 would be improved if he could subsequently establish that police were still investigating whether or not to prosecute anyone regarding the incident, and that whilst there was still some prospect that someone would be prosecuted to conviction, that would thus enhance his chances of successfully claiming criminal injuries compensation, and of extending time under the Criminal Injuries Compensation Act 1978, if this was ultimately necessary. I am satisfied that he was advised, at least by Ms Coleman if not by earlier solicitors, that his prospects of obtaining an ex-gratia criminal injuries compensation payment were not good, even on his own version of the incident whereby he had told Mr Wais that he was going outside, which might be construed as inviting Mr Wais to fight him. Ms Coleman also advised him that what he said of his own conduct, in wrestling Mr Wais to the ground prior to him being injured, would militate against his being awarded an ex-gratia payment under the criminal injuries compensation legislation.
I am satisfied and find that Mr Monty and Mr Wais were, by the end of dinner, excited and aggressive towards each other and that it was Mr Monty who suggested that they go outside to continue what had started and continued through dinner.
Ms Lanco gave evidence that Mr Elmawey’s girlfriend was cooking for a long time before dinner. She said everyone was drinking and everyone was in a reasonably good mood. She said that eventually they sat down to dinner. Everyone was enjoying themselves, except Mr Monty and Mr Wais who were arguing over the table. She said that she wasn’t really taking any notice of what the two men were “having a go at each other about”. She said that they kept arguing and drinking. She said that she did not remember Mr Monty saying any words to Mr Elmawey about Mr Elmawey stopping the argument at the dinner table. She said she had a bit of a recollection of Mr Elmawey wanting Mr Monty to stop drinking during dinner. She just remembered both of them arguing. She said that they were quite aggressive towards each other. She said that when they were aggressive they were both talking pretty loudly at the dinner table. She thought it may have been about women, but she wasn’t interested and tried to ignore it.
Ms Lanco said that when coffee was made everyone left the table. She went into the lounge room and sat down. She said the men disappeared somewhere, but she didn’t take much notice of where. She said that she was sitting in the lounge having her coffee when she heard Mr Monty call out that he couldn’t feel his legs. That was when she was aware that he was outside. She went outside then. She thought Mr Elmawey was trying to get control of the situation. It was pretty horrible. She thought that when she went outside Mr Monty was lying on the ground. She said that he was on his back as far as she could remember. She then said she could not be absolutely 100 per cent sure if he was on his back or on his stomach. Mr Monty asked her to refresh her memory from a statement, but she said that the statement did not refresh her memory.
Ms Lucie Janvrin was at the hospital after Mr Monty was taken there. Her evidence was that Mr Elmawey had said to her that Mr Monty and Mr Wais were having a wrestling match outside. They were fighting each other and that Mr Monty slipped on the path and fell backwards and hit his head on the stone. She said Mr Elmawey had said to her that when Mr Monty had called out they had tried to pick him up to lift him up to see if they could make him walk and he couldn’t walk. They then realised it was serious and Mr Elmawey called an ambulance. She later said that Mr Elmawey had told her that when he and Mr Wais helped Mr Monty up and found out that he wasn’t going to move, they called an ambulance.
Mr James Monty gave evidence that at the hospital Mr Elmawey had said that during a dinner party Mr Monty and a man named Ali had an argument and they went outside and had a fight and that Mr Monty had a fall and hit the back of his head. Mr Elmawey had said that it was an accident.
Mr Elmawey’s evidence was that he met Mr Monty through Mr Wais. Mr Monty had known Mr Wais for several years. Mr Elmawey saw Mr Monty from time to time as a friend. He said that as at 19 July 1992 Mr Monty was living at his place. He said that he wasn’t sure why Mr Monty was moving out of a place at which he was living, but that Mr Monty was short of money at the time and Mr Elmawey said that he was more than welcome to stay with him for a little while. He said he didn’t want any money as rent. He said there were a couple of things around the house that he wouldn’t mind Mr Monty helping him with. They discussed doing some painting and some sanding and he thought that Mr Monty helped him put some chicken wire somewhere. He said Mr Monty had been at his place for a week or a couple of weeks before the dinner party.
Mr Elmawey gave evidence about what he heard of the discussions between Mr Monty and Mr Wais at the other end of the table during dinner. He said that he interjected from time to time as the level or tone of the conversation was becoming quite heated. He said they would calm down for a second or two and then start up again. Mr Elmawey said that he suggested that they all watch a video. He said that was to sort of cool the mood down. Mr Elmawey said he thought the girls moved into the lounge room whilst Mr Monty said he wanted to go outside to urinate. Mr Elmawey said that Mr Wais then said to him that he was going home because he had had enough. Mr Wais left through the front door and he walked behind him.
Mr Elmawey said that down the driveway Mr Monty was urinating on the garden. Mr Wais walked past him about a metre or two away. Mr Monty then swung around and “continued to banter again”. At that time Mr Wais went up to him and they were close to each other. Mr Elmawey saw Mr Monty throw a punch. He couldn’t remember if it connected. He then saw Mr Wais grab Mr Monty around both arms. He said he thought Mr Monty’s arms were around Mr Wais and they grappled, in a twisting and turning sort of motion, up the driveway probably about two to three, maybe four metres. Then they stepped into the garden still grappling with each other. Mr Elmawey said he went up to the two men and said “come on fellows, stop”. He then went up to them and yelled at them to stop. They didn’t stop. Mr Elmawey said all this took about a matter of 15 or 20 seconds. Then, as they were grappling with each other in the garden they both fell down and Mr Wais landed on top of Mr Monty. Mr Elmawey remembered Mr Monty falling to his front. He said that the way they had fallen with Mr Wais being on top of Mr Monty he remembered Mr Monty being face down in the garden.
Mr Elmawey said he grabbed Mr Wais by the arm and lifted him up. He said that he was sort of half-way up already, not on his knees but in a crouching position as he was getting up. He grabbed Mr Wais’ arm and pulled him up and pulled him aside. He then said to Mr Monty “come on, mate, get up”. Mr Monty was sort of moaning on the ground for a few seconds. He again told Mr Monty to get up, and Mr Monty said “I can’t get up” or “I can’t move” or something. Mr Elmawey said he brushed Mr Monty’s hair away from his face and when he asked Mr Monty what was wrong with him Mr Monty replied “I can’t feel or move my legs”. Mr Elmawey said he pinched Mr Monty on the back of his calf and asked him whether he could feel that. Mr Monty replied that he couldn’t. Mr Elmawey said that he thought he also pinched Mr Monty on his arm or on his “bum” and Mr Monty said he couldn’t feel that either. Mr Elmawey said that he then panicked and yelled out to his wife to call an ambulance.
Mr Elmawey said that up until the time that an ambulance was called he did not move Mr Monty at all, nor did he observe anybody else moving him. Mr Elmawey said that it was he who ultimately rang the ambulance and he went inside to do that. When he got outside again Mr Monty was still laying in the same position as where he had fallen.
Mr Elmawey said that in January 1975 until about October the same year he had trained for six or seven, or eight months, at Concorde Repatriation Hospital in Sydney as a nurse. He did not complete the three or four year nursing course.
Mr Elmawey denied that there was any discussion about telling a story other than what had happened. Mr Elmawey’s evidence was that when he visited Mr Monty in hospital on a number of occasions it was Mr Monty who asked Mr Elmawey to say that something different to what had actually happened had occurred, because that would enable Mr Monty to get compensation. It was Mr Elmawey’s memory that Mr Monty had referred to about a million dollars, or something like that. Whenever he was asked to say something different had happened Mr Elmawey told Mr Monty that he was not going to change his version of what happened.
Mr Elmawey denied that he put a cushion under Mr Monty’s face. He denied that anyone had, to his knowledge, when Mr Monty was lying on the ground waiting for the ambulance.
Exhibit P4 is an undated, unsigned statement of Mr Elmawey. It was ultimately admitted on an unrestricted basis. In this statement Mr Elmawey is recorded as having reported that Mr Wais and Mr Monty were grappling with each other on the driveway in front of his house. It was then not violent and there were no punches thrown. He kept telling Mr Monty to “leave it”. When the two men got near to the front of the house they both fell over onto the ground. They were half on the concrete drive and half on the garden area. He did not think much of it and did not see anything to suggest that serious injury might have happened to either of them. Mr Wais got up and he, Mr Elmawey, told Mr Monty to get up and cool it. That was when Mr Monty said he could not get up, he could not feel his legs. Mr Elmawey pinched Mr Monty’s legs quite hard, as did his wife who had come outside by that time. He then realised that there was serious injury to Mr Monty. He went inside and rang for an ambulance. At the hospital Mr Monty asked him to change his story about what had happened. He said to Mr Elmawey that he could get about half a million dollars in a claim. He told Mr Monty that he would not get involved in that and he would relate his account of what had happened as it had happened.
Mrs Elmawey’s evidence as to the events outside her house was limited. She said that she did the cooking for the dinner party and that she cooked fish. She said that nobody helped her with the cooking. That was inconsistent with each of the other three witnesses who could speak on that topic. I do not consider that it matters, but I accept that Mr Monty assisted Mrs Elmawey in cooking the meal that night.
Mrs Elmawey said that everyone had a little something to drink before dinner. She said that Mr Monty drank Tequila which had a worm in the bottle. She said that Mr Monty and Mr Wais were arguing about the girls and their lifestyles.
As to the dinner itself, Mrs Elmawey said “it started happy maybe, but then turned a bit unhappy”. She said that Mr Monty and Mr Wais started teasing each other and became angry. She said that Mr Wais was upset and wanted to go home. He left the house and she thought her husband went to say goodbye and somehow Mr Monty followed. She said she looked through the blinds at one stage and saw a little bit of wrestling between Mr Monty and Mr Wais. She saw that only for a few seconds. She did go outside, or open the front door, and asked what was happening. Her husband said to go back inside. She said that they (Mr Monty and Mr Wais) were probably on the ground at that stage.
When she went back outside the house Mr Wais was standing up and Mr Monty said he couldn’t get up. She said that part of him was on the driveway and part of him was on the garden. He was lying on his back. She said that she checked his legs. She said that her husband got a towel and put that over him because it was cold.
Under cross-examination Mrs Elmawey said that she remembered very well that Mr Monty had “ingested” the worm in the Tequila bottle. She agreed that Mr Monty could have gone outside first, but her memory was that Mr Wais went outside first. Mrs Elmawey said that she saw the two men rolling on the ground, wrestling, and scuffling in the garden. She later said that she didn’t see any rolling, but later still said that she did. She said that when she saw Mr Monty and Mr Wais through the blind they were wrestling standing up.
Mrs Elmawey denied that she had put a pillow under Mr Monty’s head or face. She said it was only a large towel that was put over Mr Monty. She said that she would not have put a pillow under his face or head if he could not move his legs. Mrs Elmawey said that she could not ever remember speaking to the police about the incident. This evidence arose when Mr Monty put Exhibit P19 to her. It purports to be a statement she gave to police. I ultimately received it on that basis notwithstanding it is not signed or dated. There is nothing in it that I consider to be relevantly inconsistent with her evidence.
Exhibit P1 was ultimately tendered without reservation. That was the transcript of Mr Wais’ record of interview with police on 26 July 1992. In that record of interview Mr Wais said that he had been invited to dinner on that Sunday night. He said that everyone helped prepare the meal. He said he had taken some beers and Mr Monty drank some of those beers. He said Mr Monty was also drinking wine before dinner.
Mr Wais said in his interview that Mr Monty had got another bottle of wine to drink with dinner. He said that just before they finished dinner he and Mr Monty got into a discussion. He told Mr Monty that he shouldn’t drink excessively like he was. He told police that if Mr Monty drank he changed personality and sort of became aggressive. He said he had known Mr Monty for eight years. He told police that Mr Monty’s speech was “getting higher”. Mr Monty was getting a bit aggressive and Mr Elmawey told him to get himself together, to do something to get a job. Mr Wais said that they were just talking as friends. Then the two of them started talking about girlfriends.
Mr Wais told police that by the time they had finished dinner, Mr Monty had gone to the bar, had grabbed a bottle of Tequila and had poured himself a drink. Mr Wais took the bottle from Mr Monty and took it back to the bar. Mr Monty then got the bottle again and poured some for himself.
Mr Wais told police that Mr Monty was still sort of arguing with him about things and was getting aggressive with him. He told him that he had to stop. He said “Lets go and watch a film”. He told police that he had sat down in the lounge room and the other two men went outside. Mr Wais told police that he then realised he was supposed to pick up his girlfriend, and as Mr Monty was getting a bit aggressive he thought he would leave.
Mr Wais went outside. He was trying to tell Mr Elmawey that he might leave. Mr Monty was urinating on the lawn. Mr Monty turned around and said something to him and then Mr Monty said that he was going to “kick (Mr Wais’) arse”. Mr Wais told police that he had his keys in his hand and was just about to leave. He turned to talk to Mr Elmawey and all of a sudden Mr Monty hit him and cut his lip. He was stunned. Mr Wais thought he was going to be hit again so he tried to grab Mr Monty’s hand. Mr Monty “sort of went back so I couldn’t reach him and I slipped”. Mr Wais said that he fell down. Mr Elmawey pulled him up and then Mr Monty came close to him again. That scared Mr Wais. He grabbed Mr Monty’s right hand and grabbed his shirt. Mr Monty was grabbing at his necklace and was sort of pushing him back and he was pushing Mr Monty back. He said that Mr Monty was on top of the grass and he, Mr Wais, was on the concrete. Then Mr Monty suddenly slipped and he went down and pulled Mr Wais with him. Mr Monty had hold of Mr Wais’ necklace and when Mr Monty fell Mr Wais went with him. Mr Wais told police that Mr Monty fell face down. He said that when Mr Monty fell his feet were on the grass. He said “I think he went, his legs just went off from he slipped, from his back and went off and hit his head on the concrete”. He said that after the fall half of Mr Monty’s body was on the grass.
Mr Wais told police that he lost his keys when this occurred. He looked for them and found them. Mr Elmawey said to both of them to stop and then Mr Monty said he couldn’t feel anything. Mr Wais then told police “So I come over I say you alright man. I can’t feel anything. So we started holding his head, you know, and Abdul, I said to Abdul to ring the ambulance”. Mr Wais said that Mr Elmawey rang the ambulance and came back. Mr Wais told police “We just sort of holding him until the ambulance come”. Mr Wais said that Mr Monty was taken to the hospital and they followed.
Mr Wais told police that Mr Monty fell down face first. He said that Mr Monty’s head landed on the concrete. He said that Mr Monty’s legs were on the grass and the top half of his chest was on the concrete. Mr Wais told police that the whole incident took no more than a couple of minutes. They were just pushing backward and forward. Mr Monty was trying to push him and he was trying to hold Mr Monty and push him back. He told police that he could not really say if he heard Mr Monty’s head hit the concrete “because it went very quick and you know I was you know … I went down on my knees and get up and he was just laying there”.
It can be seen from the above summary of some of the evidence about the dinner party and the events subsequent to completing the meal outside the front of the Elmawey’s house, that there is considerable common ground as to some features of the events of that evening. It is hardly surprising that thirteen or fourteen years later there are discrepancies between the witnesses as to the detail of what exactly happened in only the few minutes that the three men were outside before Mr Monty was on the ground unable to move.
I have no doubt that during the evening meal Mr Monty and Mr Wais talked to each other about various aspects of their lives, and that their discussion as friends gradually turned into one where they became increasingly critical of each other and that they said things to each other which, had they remained sober, they may not have said. Their comments became more personal as each had more and more to drink. As that happened they each became more verbally aggressive towards each other.
I am satisfied and find that at that point Mr Elmawey suggested that the group leave the dining table to go and watch a video. I am satisfied that he suggested that, partly at least, to diffuse the situation that was growing between Mr Monty and Mr Wais. I am not satisfied and do not find that Mr Monty asked Mr Elmawey at the dinner table to take action to quieten Mr Wais, or to ask Mr Wais to leave.
I find, on Mr Monty’s evidence, that when the two men had risen from the table and after there was some physical contact between them, Mr Monty said to Mr Wais that he was going outside and if Mr Wais wished to continue their discussions they could continue them outside. I accept Mr Monty’s evidence that that was not intended by him to be an invitation to fight Mr Wais, but I find that it must have been in Mr Monty’s contemplation that that was a possibility because, as Mr Monty told me, he thought when he said that to Mr Wais that Mr Wais wanted to be more than verbally aggressive towards him and that he wanted to be physically aggressive. Whilst I find that that was Mr Monty’s state of mind, I do not find that that was Mr Wais’ intention or wish.
I find that Mr Monty then went outside and was urinating on the garden when Mr Wais came outside, followed by Mr Elmawey. I am not prepared to find, where I have not heard evidence from Mr Wais, what Mr Wais’ state of mind was at that time, and, in particular, whether he intended to get in his car and leave either because he had had enough of Mr Monty and/or because he had to pick up his girlfriend. I am not prepared to make findings as to that on the transcript of Mr Wais’ record of interview with police alone.
I find that as Mr Monty was urinating the two men recommenced insulting and abusing one another. I find that led to some grappling with each other wherein Mr Wais fell to the ground. I find that when Mr Wais got up he approached Mr Monty who struck him a blow to his face. I find that Mr Monty struck him in the mouth causing Mr Wais’ lip to bleed. I find that at that point the two men “embraced” each other such that they were wrestling or grappling together near the edge of the concrete driveway between the driveway and the garden. I find that during that wrestling or grappling one or other of the two men lost their footing either at the edge of the concrete driveway or in the garden bed. Because each had hold of the other that caused both men to fall to the ground together. I think that the probabilities are, and I find, that Mr Monty landed on his back with Mr Wais on top of him and facing him. Accordingly, the weight of Mr Wais’ body added to the force with which Mr Monty fell on his back to the ground. The evidence is not such that I am prepared to find whether or not Mr Monty’s head probably struck any part of the concrete path. Mr Monty said nothing on this topic in his evidence. I find that he told a police officer in May 1994 that when the two men hit the ground he felt and heard a deep crack and realised that his neck was broken and he could not move at all. I do not find that Mr Wais probably leapt forward onto Mr Monty and they then fell backwards. I do not find that Mr Wais at that time punched him in the face and I do not find that after he told Mr Wais that he couldn’t move, Mr Wais then grabbed him by the shirt, picked him up and slammed him on the ground. This account was not pleaded in Mr Monty’s Statement of Claim and was not pleaded as any part of the alleged assault and battery. Whilst I acknowledge that there was no need to necessarily plead those “assaults” if they were not relied on as causing or contributing to Mr Monty’s injuries, I consider that Mr Monty’s statement to police and his evidence at trial to this effect was an embellishment by him. Furthermore, I find that at no time before his fall outside the house did Mr Monty ask Mr Elmawey to get Mr Wais away from him or to get Mr Wais to leave.
As previously indicated, I find that when Mr Monty and Mr Wais fell together, Mr Monty fell on his back with Mr Wais on top of him. Mr Wais’ body weight would have aggravated the force of the fall to Mr Monty’s body. The evidence before me is such that I am not prepared to make a finding as to where exactly they fell together. I can only find that it was probably completely in the garden near the concrete path forming the driveway, or straddling the garden and the driveway. I heard no medical evidence of any examination of Mr Monty’s head or body at the hospital which may have thrown light on whether or not Mr Monty’s head struck any part of the concrete driveway. As indicated, Mr Monty did not describe doing so whilst Mr Wais told police Mr Monty’s head did strike the driveway. Had I been able to make a finding as to this matter it would have assisted me when considering the issue I next deal with.
I have considered whether there is sufficient reliable evidence upon which I can make a finding as to whether or not Mr Elmawey and Mr Wais moved Mr Monty after he had complained initially of not being able to move. I find that Mr Monty told police on 12 May 1994 that at that time he asked Mr Elmawey to pick him up and he said that he would be all right. I find that he told police that Mr Elmawey and Mr Wais then stood him up and walked him a few feet to the driveway where he then asked them to put him down as he wasn’t feeling well and because he was in pain. He said that he lay in that position until the ambulance arrived. Mr Monty gave evidence that was generally similar to this when he gave evidence at trial, except that he initially denied that he told police that he had asked Mr Elmawey to pick him up and said that he would be all right. I have earlier referred to Mr Monty’s evidence on this topic.
I have ultimately concluded that there is just sufficient evidence upon which I can find that Mr Elmawey and Mr Wais, when Mr Monty asked Mr Elmawey to pick him up saying that he would be all right, thinking that Mr Monty would be all right, tried to move him onto, or further onto, the driveway. I find that Mr Elmawey and Mr Wais probably moved Mr Monty only a matter of one or two feet so that he was partly on the driveway with his feet probably hanging over the driveway onto the garden bed. It was in that position that he remained until Mrs Elmawey came out and pinched his legs and until the ambulance arrived. I find that he was probably on his back at that time. I do not find, consistent with Mr Monty’s evidence, that the other two men picked him up from under the arms and turned him around 180° and started walking him towards the house. I find that Mr and Mrs Elmawey together put a towel over Mr Monty for warmth, but I am unable to find that anyone put a pillow under his head. There was no evidence at trial, independent of Mr Monty and Mr and Mrs Elmawey, as to the position of Mr Monty in the front of the house when the ambulance attendants arrived at the Elmawey house. Nor was there any evidence from any independent source as to whether he was on his back or his front, and whether there was a pillow under his head.
I am unable, on the evidence before me, to make any findings regarding who said what to whom, and when, as to what would be said by them about the circumstances of Mr Monty’s fall outside the front of the Elmawey’s house.
I am not satisfied that Mr Monty has established any agreement between he and Mr Elmawey, or the terms of any agreement, regarding Mr Monty’s residing at the Elmawey house either on or preceding 19 July 1992. Mr Monty gave no evidence in his evidence-in-chief about the circumstances in which he came to be staying at Mr Elmawey’s house. I am satisfied and find that he came to be there in the way described by Mr Elmawey. Mr Elmawey knew that he had nowhere to stay and that he was short of money. He offered his own home. He asked and Mr Monty agreed to help him do some odd jobs around the house whilst he was there. I am satisfied that Mr Monty has not made out the agreement pleaded. Even if I were satisfied that there was some arrangement that could be construed as an agreement, I find there was no implied term that Mr Elmawey would exercise reasonable care and diligence so as to ensure the safety of Mr Monty whilst he was at the house.
Whilst Mr Monty was staying at the Elmawey house I find that on the day before the dinner party Mr Elmawey spoke with Mr Monty about having a dinner on the following day, being Sunday 19 July 1992. I find that Mr Elmawey suggested to Mr Monty that he might ask a friend of his to attend. I find that it was expected by each of the two men that Mr Monty would contribute to the preparation of the meal. I find that he did so. I find that someone decided to invite Mr Wais who was known to both Mr Monty and Mr Elmawey. That occurred. In my view none of these facts or circumstances gave rise to a warranty by Mr Elmawey to Mr Monty that Mr Elmawey would take all reasonable steps to ensure his safety at the house and that he would take all reasonable steps necessary to prevent or limit the risk of injury to Mr Monty, as pleaded by Mr Monty. The pleading refers to the alleged warranty operating whilst Mr Monty was at the house. There is a sense in which Mr Monty’s allegation, in his Reply to Mr Wais’ Defence, that he did not need an invitation to dinner because he was residing there and was to cook the meal for the dinner is accurate. I find that there was no warranty as alleged.
I now deal with Mr Monty’s allegations against both Mr Elmawey and Mr Wais for assault and battery.
In paragraph 12 of his Statement of Claim Mr Monty particularises the alleged assault and battery. Relevantly, Mr Monty alleges that he was returning to the house when Mr Wais, without his consent, forcibly threw his body against Mr Monty’s body causing Mr Monty to lose his balance and fall. That is the alleged assault and battery. In the findings I have made I have not found that Mr Monty’s fall was preceded by events as alleged by Mr Monty in his pleading and his evidence. I have found that Mr Monty struck Mr Wais and cut his lip. I have found that after that Mr Monty had approached Mr Wais and the two men had grappled with each other and each had wrestled with the other. It was during that time that Mr Monty fell taking Mr Wais with him. Accordingly, Mr Monty has not proved that Mr Wais forcibly threw his body against Mr Monty’s body causing Mr Monty to lose his balance and fall. I find that no conduct of Mr Wais was activated by malevolence towards Mr Monty and that Mr Wais did not intend to cause Mr Monty to apprehend a likelihood of injury to himself and that Mr Wais did not cause injury to Mr Monty.
I have concluded that Mr Monty has not established or proved any assault on him by Mr Wais or any battery on him by Mr Wais. Even if I am wrong in my conclusion that Mr Wais committed no act of assault or battery on Mr Monty I am satisfied that the actions of Mr Monty would constitute legal consent to any assault or battery.
Mr Monty alleged in his Statement of Claim that Mr Elmawey promoted the assault and battery. Particulars were given of that allegation. I am not satisfied that Mr Monty has established or proved any of those particulars. In particular, I find that it has not been established that Mr Elmawey had seen Mr Wais throw a punch at Mr Monty when they were in the front garden of the house and it has not been established that Mr Elmawey saw Mr Monty blocking that punch and pushing Mr Wais away from him. It has not been established that Mr Elmawey overheard Mr Monty say to Mr Wais that he did not wish to fight him. I do not find that Mr Monty said that to Mr Wais. It has not been established that Mr Elmawey knew or ought to have been aware that Mr Monty was returning to the house so as to extricate himself from the hostile situation in which Mr Wais was desirous of battering Mr Monty. I find that Mr Monty was not returning to the house for that purpose. It has not been established that Mr Elmawey encouraged Mr Wais to assault and batter Mr Monty, or that he aided and abetted in the assault and battery by uttering provocative words to the effect “Go on, hit him” and “You are not going to take that”. The words in italics were as they appear in the Statement of Claim. I infer that the pleader had been instructed by Mr Monty that Mr Elmawey had used those words, or words to their effect, outside his house that night. Mr Monty gave no evidence at trial of Mr Elmawey saying those words or words to their effect.
It has not been established or proved by Mr Monty that Mr Elmawey was aware that Mr Wais was intoxicated or that Mr Wais had a propensity to violence or that he had been acting in a hostile manner towards Mr Monty from the moment that he arrived at the house or that he was desirous of assaulting and battering Mr Monty. Mr Monty did not say in evidence that Mr Wais was intoxicated or that he had a propensity to violence, let alone that Mr Elmawey knew of those things. Furthermore, I do not find that Mr Wais had acted in a hostile manner towards Mr Monty from the moment he had arrived at the house so I do not find that Mr Elmawey was aware of that.
As to Mr Monty’s case in negligence against Mr Elmawey, it is alleged that Mr Elmawey owed Mr Monty a duty of care as between invitor and invitee and that Mr Elmawey failed to take such steps that were open to him to take and which a reasonable person in the circumstances would have taken to avert or prevent the assault.
Mr Monty relies on the same allegations in respect of the alleged negligence of Mr Elmawey as pleaded for the assault and battery. I have not found that Mr Monty was assault by Mr Wais. Mr Monty pleaded that, in order to assault and batter Mr Monty, Mr Wais had walked towards and past Mr Elmawey in such proximity to him such that he or a reasonable person in his position could have blocked the path of Mr Wais and with force or words averted the assault and battery. He alleged that a reasonable person in Mr Elmawey’s circumstances would not have uttered words of encouragement to Mr Wais, but instead would have uttered words to Mr Wais to attempt to convince him that he should not assault and batter Mr Monty; would have intervened in the altercation outside; would have attempted to prevent Mr Wais from passing him when it was foreseeable that Mr Wais was intending to assault Mr Monty; and would have placed himself between the other two men to minimise the risk of Mr Wais battering Mr Monty and to protect him from foreseeable injury. On my findings none of these allegations are made out. I find that Mr Elmawey uttered no words of encouragement to Mr Wais. I am satisfied and find that Mr Elmawey, so far as he could, was, by words attempting to get the other two men to stop their argument and to leave each other alone. I am satisfied that Mr Elmawey did what he could to avert or prevent what ultimately happened. I am satisfied that Mr Elmawey could do no more than he did in the circumstances.
In the circumstances as I have found them to be, I am not satisfied that Mr Monty has established that a special relationship existed as between himself and Mr Elmawey such that it involved a duty on Mr Elmawey to control the actions of another person, Mr Wais. It was not established that Mr Elmawey had any relevant control, or power to control, the actions of Mr Wais. Nor has it been established that Mr Elmawey had any relevant knowledge that Mr Wais had a propensity for acts of violence (even when intoxicated), or that Mr Elmawey was aware that Mr Wais had acted in a hostile manner towards Mr Monty, thus indicating a desire to assault and batter Mr Monty, such as to give rise to a duty of care for Mr Elmawey to prevent harm to Mr Monty by Mr Wais (see Modbury Triangle Shopping Centre Pty Ltd v Anzil & anor (2000) 205 CLR 254, paras 17, 19, 20, 21, 26, 28, 30, 34, 43, 117).
Even if Mr Elmawey had a legal duty to prevent foreseeable harm to another by a third person, which in these circumstances I do not so find, I would find that it has not been established that Mr Elmawey was in breach of such a duty to Mr Monty in the circumstances of this case.
As to Mr Monty’s case in negligence against Mr Wais, it is alleged that Mr Wais was negligent in that a reasonable person in his circumstances would have foreseen that Mr Monty could sustain injury as a consequence of his forcibly throwing his body against Mr Monty’s body, causing him to lose his balance and fall. I have not found that the fall occurred in this way. Accordingly, Mr Monty’s case in negligence against Mr Wais fails. I would not find Mr Wais negligent in the circumstances of the fall as I have found them to be.
Mr Monty alleged an alternative case in negligence against both Mr Elmawey and Mr Wais. He alleged that the moving of him by Mr Elmawey and Mr Wais was negligent, particularly having regard to Mr Elmawey’s nursing qualifications, in that a reasonable person in the circumstances would have foreseen that moving a victim of a suspected spinal injury could lead to damage or further damage to the victim’s spinal cord and hence permanent paralysis. This is an allegation against both Mr Elmawey and Mr Wais.
There is no doubt that Mr Monty pleaded that Mr Elmawey was at the time of the incident a qualified nurse to support this alternative allegation against Mr Elmawey. The evidence, which I accept, was that Mr Elmawey had about seven or eight months training as a nurse at a hospital in New South Wales. He did not complete the three or four year nursing course. There is no evidence that either Mr Elmawey or Mr Wais had any training as to how to treat people who complained of not being able to move their legs. Mr Elmawey had sufficient understanding to pinch Mr Monty’s legs to see if he could feel the pinch. I am here assuming that that is a proper medical test for such symptoms. Other than Mrs Elmawey’s evidence that she did something similar and that she was a trained nurse, I have no expert evidence upon which to base such an assumption. I am, however, prepared to make it.
Mr Monty’s account of things tended to suggest that he certainly had some symptoms of spinal damage before Mr Elmawey and Mr Wais attempted to move him. I have found that there was some attempt by the two other men to move Mr Monty. I have found that they did so because Mr Monty asked them to pick him up and said that he would be all right. I am not prepared to find that, by moving someone who has said that, especially at night in a garden when an altercation has occurred as I have found, either of the two men were in breach of any duty of care that they owed to Mr Monty when it occurred. I have rejected Mr Monty’s evidence that Mr Wais picked him up by the shirt and slammed him on the ground after Mr Monty complained that he could not move. I am satisfied and find that when Mr Elmawey and Mr Wais attempted to move Mr Monty they were attempting to assist him and were reassured by him that he would be all right.
Even if I had been satisfied that Mr Monty’s quadriplegia was caused by or contributed to by being moved by Mr Elmawey and Mr Wais I would not have found that there was sufficient evidence upon which to find that either of them were negligent in doing so.
Causation
I have earlier set out Mr Monty’s allegations regarding the cause of his quadriplegia. They are alleged in the alternative. It was primarily alleged that Mr Monty suffered a fractured dislocation of his C4 and C5 vertebrae which rendered him a quadriplegic as a consequence of the assault and battery, or the negligence of Mr Wais, and/or the negligence, breach of contract, breach of duty and breach of warranty of Mr Elmawey.
Alternatively, it was alleged that Mr Monty was rendered a quadriplegic, not as a consequence of the above matters, but as a consequence of Mr Elmawey and Mr Wais lifting and moving him.
As indicated earlier in these reasons, there was no medical evidence as to the cause of Mr Monty’s quadriplegia. Accordingly, I consider that the evidence is such that I am unable to make any findings as to the cause, or causes, of it.
Whilst the scuffle that I have found to have occurred outside the Elmawey’s house on the night of Sunday 19 July 1992 had catastrophic consequences for Mr Monty, I conclude that Mr Monty has not established that either Mr Elmawey or Mr Wais are liable to him in damages.
I would dismiss the plaintiff’s claim against both defendants.
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