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Ryan v Bunnings Group Limited

Ryan v Bunnings Group Limited

Case [2020] ACTSC 353 27 February 2019

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Ryan v Bunnings Group Limited; Ryan v Eastlake Football
Club Limited; Ryan v O’Halloran & Ors; Ryan v Bhagria &
Anor
Citation:	[2020] ACTSC 353
Hearing Dates:	18-22, 25-27 February 2019; 29 July 2019-16 August 2019; 5-7 November 2019; 6 December 2019; and 17 February 2020.
Decision Date:	23 December 2020
Before:	Loukas-Karlsson J
Decision:	See [779]-[784].
Catchwords:	TORTS – NEGLIGENCE – concurrent proceedings – where single plaintiff and multiple discrete causes of action – where credibility and reliability of plaintiff at issue – where plaintiff has lengthy and complex medical history – whether plaintiff was contributorily negligent – causation
TORTS – FALSE IMPRISONMENT – whether cause of action is statute barred by s 435 of the Crimes Act 1900 – whether
detention was lawful under s 218 of the Crimes Act 1900 - whether reasonable basis for detention
TORTS – ASSAULT – whether alleged tortfeasor was acting in self-defence – causation
DAMAGES – ASSESSMENT – general principles – aggravated
and exemplary damages
Legislation Cited:	Civil Law (Wrongs) Act 2002 (ACT) ss 42, 43, 44, 45, 46, 99, 100, 102, 168 Court Procedure Rules 2006 (ACT) rr 6, 1203, 1241
Crimes Act 1900 (ACT) ss 218, 435
Cases Cited:
“B” v Reineker [2015] NSWSC 949
ACN 087528774 Pty Ltd (formerly Connex Trains Melbourne Pty
Ltd) v Chetcuti [2008] VSCA 274 Alchin v State of New South Wales (Unreported, NSW District Court, Wass DCJ, 3 December 2018) Amaca v Latz [2017] SASCFC 145 Australian Capital Territory Schools Authority v El Sheik [2000] FCA 931 Beckett v State of New South Wales [2015] NSWSC 1017 Boughey v R (1986) 161 CLR 10 Briginshaw v Briginhaw (1938) 60 CLR 336 Brozinic v ISS Facility Services [2014] ACTSC 8 Brunoro v Nebelung [2017] ACTCA 26
Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104
Campbell v Campbell [2015] NSWSC 784 Cassell & Co Ltd v Broome [1972] AC 1027
Chapman v Hearse (1961) 106 CLR 112
Commercial Union v Ferrcom (1991) 22 NSWLR 389 Commonwealth of Australia v Marsh [2018] ACTSC 189 Commonwealth of Australia v McLean (1996) 41 NSWLR 389 Coote v Kelly; Northam v Kelly [2016] NSWSC 1447 Craig v Silverbrook [2013] NSWSC 1687 Cubillo v Commonwealth [2001] FCA 1213; 112 FCR 455 Darcy v New South Wales [2011] NSWCA 413 Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250 Director of Public Prosecutions (NSW) v Elskaf [2012] NSWSC 21 DNM Mining Pty Ltd v Barwick [2004] NSWCA 137 Eathan Cruse v State of Victoria [2019] VSC 574; 59 VR 241 Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; 161 ALR 599 Erlich v Leifer [2015] VSC 499 Evans v Braddock [2015] NSWSC 249 Falco v Aiyaz [2015] NSWCA 202; 71 MVR 454 Fernando v Commonwealth [2014] FCAFC 181; 231 FCR 251 Fontin v Katapodis (1962) 108 CLR 177 Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560 Goldie v Commonwealth of Australia (No 2) [2004] FCA 156 Graham v Baker (1961) 106 CLR 340 Gray v Motor Accident Commission (1998) 196 CLR 1 Haynes v Harwood (1936) 1 KP 46 Houda v State of New South Wales [2005] NSWSC 1053 Hutchinson v Fitzpatrick [2009] ACTSC 43 Insurance Office of NSW v Aboushadi [1999] NSWCA 396 Jones v Dunkel (1959) 101 CLR 298 Kalenik v Apostolidis & Ors [2009] VSC 208 Lamb v Cotogno (1987) 154 CLR 1 Lee v Kennedy [2000] NSWCA 153 Lewis v Australian Capital Territory [2018] ACTSC 19 Lule v State of NSW [2018] NSWCA 125 Maric v Nominal Defendant [2013] NSWCA 190 Maric v The Nominal Defendant [2012] NSWDC 69 Mason v Demasi [2009] NSWCA 227 McHale v Watson (1964) 111 CLR 384 Moon v Whitehead [2015] ACTCA 17 Morro & Ahadizad v ACT [2009] ACTSC 118
Morro v Australian Capital Territory [2009] ACTSC 118; 4 ACTLR 78
Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 502 New South Wales v Delly [2007] NSWCA 303 New South Wales v Ibbett [2006] HCA 5; 229 CLR 638 New South Wales v Koumdjiev [2005] NSWCA 247; 63 NSWLR 353 New South Wales v Quirk [2012] NSWCA 216 Noye v Robbins; Noye v Crimmins [2007] WASC 98 Nye v New South Wales [2003] NSWSC 1212
Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403
Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505 Petrovic v VWA [2018] VSCA 243
Presidential Security Services of Australia Pty Ltd v Clinton
Joseph Brilley [2008] NSWCA 204; 73 NSWLR 241
Pulling v Yarra Ranges Shire Council [2018] VSC 248 Purkess v Crittenden (1965) 114 CLR 164 R v Katarzynski [2002] NSWSC 613 Re Kit Digital Australia Pty Ltd (in liq) [2014] ACTSC 1547 Ruddock v Taylor [2005] HCA 48; 222 CLR 612 Sangha v Baxter [2009] NSWCA 78; 52 MVR 492 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 South Australia v Lampard-Trevorrow [2010] SASC 56 State Government Insurance Commission v Oakley (1990) 10 MVR 570 State of New South Wales v Cuthbertson [2018] NSWCA 320 State of New South Wales v Riley [2003] NSWCA 208; 57 NSWLR 496 State of New South Wales v Zreika [2012] NSWCA 37 TD v New South Wales [2010] NSWSC 368 The Nominal Defendant v Cordin [2017] NSWCA 6; 79 MVR 210 The Queen v Phillips (1971) 45 ALJR 467
Toyota Finance Australia Limited v AJI Enterprise Group Pty Ltd
[2019] NSWSC 33 Trobridge v Hardy (1955) 94 CLR 147
Tuggeranong Town Centre Pty Limited v Brenda Hungerford Pty
Limited (No 2) [2017] ACTSC 88 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 Walter v Alltools Ltd (1944) 171 LT 71 Watson v Marshall and Cade (1971) 124 CLR 621 Watts v Rake (1960) 108 CLR 158 Whitehead v Moon [2013] ACTSC 243 Williams v Milotin (1957) 97 CLR 465 Zaravinos v New South Wales [2004] NSWCA 320
Texts Cited:	Felicity Maher, ‘An Empirical Study of Exemplary Damages in
Australia’ (2019) 43(2) Melbourne University Law Review
CF Bond and BM DePaulo, ‘Accuracy of Deception Judgments’
(2006) 10 Personality and Social Psychology Review 214
Michael Green, ‘Credibility contests: the elephant in the room’
(2014) 18(1) International Journal of Evidence and Proof 28
Parties:	Mark Ryan (Plaintiff)
Bunnings Group Limited (Defendant in SC 268 of 2017)
Jade O’Halloran (First Defendant in SC 312 of 2017)
Stephen Cain (Second Defendant in SC 312 of 2017)
Insurance Australia Limited t/as NRMA Insurance (Third Defendant in SC 312 of 2017)
Eastlake Football Club Limited (Defendant in SC 267 of 2018) Tejinder Bhagria (First Defendant in SC 510 of 2018) AAI Limited t/as GIO (Second Defendant in SC 510 of 2018)
Representation:	Counsel
P Menzies QC with J Wilson and A Opas (Plaintiff)
D Shillington (SC 268 of 2017)
J Pappas (SC 312 of 2017)
B Kelleher (SC 267 of 2017)
S Onitiri (SC 510 of 2018)
Solicitors
Capital Lawyers and Legal on London (Plaintiff) Bradley Allen Love (Defendant in SC 268 of 2017)
HWL Ebsworth (Defendants in SC 312 of 2017) Sparke Helmore (Defendant in SC 267 of 2017) Moray Agnew (Defendants in SC 510 of 2018)
File Numbers:	SC 268 of 2017; SC 267 of 2017; SC 312 of 2017; SC 510 of 2018
CONTENTS
Introduction	6
Background of the Plaintiff	7
Agreed Statement of Issues	8
Earlier Medical Reports	9
Credit and Reliability of the Plaintiff	9

Defendants’ Submissions on Credit and Reliability 9

Plaintiff’s Submissions on Credit and Reliability 11
Consideration 12
Contradictory evidence from another witness: MVA 2 (2015) 15
Contradictory evidence from another witness: MVA 1 (2013) 15
Contradictory evidence from another witness: The Bunnings Incident 16
Contradictory evidence from contemporaneous documents 16
Conclusion – Credit and Reliability of the Plaintiff 19

Principles Relating to the Assessment of Damages

Plaintiff’s Submissions 20

Principles of Apportionment	23
Evidence	23
Legislation	23

The Bunnings Incident

Introduction 25

Medical Baseline	26
Evidence	26

Lay Evidence 26
CCTV Footage 28
Expert Evidence – the Bunnings Incident 29

Submissions of the Plaintiff

Breach of Duty of Care 34
Contributory Negligence 35
Causation of Injuries 35

Submissions of Bunnings

Breach of the Duty of Care 36
Contributory Negligence 37
Causation of Injuries 37

Submissions in Reply	40
Consideration: The Bunnings Incident	41

Factual Findings 41
Consideration on Liability 41

Damages: The Bunnings Incident

Motor Vehicle Accident 1 (MVA 1 – 2013)

Introduction 42

Medical Baseline	43
Evidence	43

Lay Evidence 43
Expert Evidence – MVA 1 45

Submissions of the Plaintiff	50
Submissions of the NRMA Defendants	51

Injuries 52
Medical Evidence 53
Assessment of Damages 53

Submissions in Reply	53
Consideration: MVA 1 (2013)	53

Factual Findings 53
Consideration on Liability 54

Damages: MVA 1 (2013)

Submissions 54
Determination 54
The Eastlake Incident

Introduction 55

Medical Baseline	56
Evidence	57

Lay Evidence 57
CCTV Footage 62
Expert Evidence – the Eastlake Incident 63

Submissions of the Plaintiff

False Imprisonment 71
Assault 71
Medical Treatment 72

Submissions of Eastlake

False Imprisonment 72
Assault 73
Medical Evidence 74

Submissions in Reply	75
Consideration: The Eastlake Incident	76

Relevant Legal Principles: Intentional Torts 76
Factual Findings 77
Sections 435 and 218 of the Crimes Act 79
Factual findings as to injuries said to have been caused by the 79
Eastlake Incident

Damages: The Eastlake Incident

Submissions of Eastlake 80
Plaintiff’s List of Cases 82
Defendant’s List of Cases 85
Further Submissions of Eastlake 90
Submissions in Reply 92

Conclusion on Consideration

False Imprisonment 93
Battery/Assault 93
Economic Loss 93
Aggravated Damages 93
Exemplary Damages 94
Determination 95
Motor Vehicle Accident – MVA 2 (2015)

Introduction 95

Medical Baseline	96
Evidence	96

Lay Evidence 96
Expert Evidence – MVA 2 98

Submissions of the Plaintiff	100
Submissions of the NRMA Defendants	100

Diplopia 100
Medical Evidence 101

Submissions in Reply	101
Consideration: MVA 2 (2015)	102

Factual Findings 102
Conclusion on Liability 102
Motor Vehicle Accident 3 (MVA 3 – 2018)

Introduction 103

Medical Baseline	104
Evidence	105

Lay Evidence 105
Expert Evidence – MVA 3 105

Submissions of the Plaintiff	109
Submissions of the GIO Defendants	110
Submissions in Reply	111
Consideration: MVA 3 (2018)	112

Factual Findings 112
Conclusion on Liability 113

Damages: MVA 3	113
*Griffiths v Kerkemeyer*	113

Evidence of the Plaintiff 114
Evidence of Ms Mary Southorn 115
Submissions of the Plaintiff – Griffiths Damages 116
Submissions of Eastlake – Griffiths Damages 116
Submissions of the GIO Defendants – Griffiths Damages 117
Consideration – Griffiths Damages 117

Ruling on the Evidence of Dr Michael Delaney	118
An Additional Matter	119
Orders	121
LOUKAS-KARLSSON J
Introduction

1.	This case arises out of several claims brought against multiple defendants by a single plaintiff, Mr Mark Ryan (the plaintiff). In brief summary, the relevant incidents, in chronological order, are as follows:

(a) On 18 January 2012, the plaintiff entered the Bunnings store in Fyshwick and
an employee’s arm made contact with his face (the Bunnings Incident);

(b) On 20 December 2013, the plaintiff was involved in a motor vehicle accident when his vehicle was struck on the left side at a roundabout on Canberra
Avenue (Motor Vehicle Accident 1 – MVA 1);

(c)

On 15 February 2014, the plaintiff was involved in an incident where it is alleged he was falsely imprisoned and assaulted at Eastlake Football Club (the Eastlake Incident);
(d) On 31 August 2015, the plaintiff was involved in a motor vehicle accident when
his parked car was struck from behind (Motor Vehicle Accident 2 – MVA 2);

(e) On 25 January 2018, the plaintiff was involved in a motor vehicle accident when his car, stationary at the intersection of Coranderrk Street and Parkes Way, was
struck from behind (Motor Vehicle Accident 3 – MVA 3).

2.	In respect of each incident outlined above, the plaintiff initiated proceedings against the following defendants:

(a) Bunnings Incident (SC 268 of 2017): Bunnings Group Limited (Bunnings);
(b) MVA 1 (2013) and MVA 2 (2015) (SC 312 of 2017): Ms Jade O’Halloran (First
Defendant), Stephen Cain (Second Defendant) and Insurance Australia Limited trading as NRMA Insurance (Third Defendant) (the NRMA defendants).

(c) Eastlake Incident (SC 267 of 2017): Eastlake Football Club Limited (Eastlake);

(d)

MVA 3 (2018) (SC 510 of 2018): Mr Tejinder Bhagria (First Defendant) and AAI Limited trading as GIO (Second Defendant) (the GIO defendants).

3.	On 31 January 2019, by consent, I made orders that the matters were to be heard concurrently and sequentially and that evidence in one matter was to be evidence in all matters.

Background of the Plaintiff

4.	The plaintiff was born in 1956. After graduating from High School, the plaintiff completed a five year chiropractic course in Melbourne. In approximately 1982, he began his own chiropractic business.
5.	In approximately 1993, the plaintiff met Ms Mary Southorn and they subsequently commenced a relationship (T 956). That relationship continued until 2014. For a number of years, the plaintiff ran his chiropractic business from a room in the house in which he and Ms Southorn cohabited.
6.	In 2004, the plaintiff purchased a nightclub, Sultan’s Nightclub, and a restaurant, Sultan’s Restaurant. He gave evidence he was the sole director of the two companies
running those establishments and was, for certain periods, an employee (T 52.15-33). The nightclub and restaurant closed in August 2014 (T 140.5).
7.	It was accepted by the plaintiff in his oral evidence that in 2014, the plaintiff was sued by the landlord for the nightclub premises, and the plaintiff mounted an unsuccessful counterclaim. Following this, a petition in bankruptcy was put forward by the landlord seeking to recover rent and ancillary costs (T 620). In June 2016, the plaintiff voluntarily entered bankruptcy (T 139.47).
8.	The evidence before the Court indicates the plaintiff has a lengthy and complex history of injuries and conditions dating back to at least 1992. The nature of the medical history of the plaintiff is such that the NRMA defendants submitted:

It is unlikely that this court has ever been asked to deal with a claim for damages against a background of so many earlier accidents resulting in injury and disability as well as earlier claims for damages.

Agreed Statement of Issues

It was agreed by the parties and documented in the Statement of Issues dated 19

February 2019 that the relevant issues for determination in respect of the concurrent proceedings were as follows:

(a) In relation to each of the incidents outlined in [1] above:

i. The circumstances, nature and severity of the collision/incident;
ii. Whether the plaintiff suffered any, and if so, what, injuries in consequence of the collision/incident;
iii. The state of the plaintiff’s health and his numerous disabilities prior to the
subject accident/incident and whether any pre-existing medical condition was aggravated, or any new disability emerged, or any disability increased, in consequence of the accident/incident;
iv.          The degree to which the plaintiff required assistance in the nature of Griffiths v Kerkemeyer (1977) 139 CLR 161 (Griffiths) assistance prior to the accident/incident and the extent to which, if at all, the need for such assistance increased after the accident/incident;
v.          The state of the plaintiff’s earning capacity as a chiropractor; as a
proprietor of restaurants and nightclubs and generally, prior to the subject accident, and whether his earning capacity in any respect was diminished in consequence of injuries suffered in, or disabilities arising from, the accident;
vi.          Whether the plaintiff has falsely represented, over a period of years, the state of his health, his work capacity, his income and the circumstances surrounding a diminution in his earning capacity;
vii.          Whether doctors who have treated the plaintiff or proffered medico-legal opinions have been misled by the plaintiff, both as to matters of factual and medical history and any expressed expert opinions have been tarnished or devalued thereby; and
viii.          The plaintiff’s truthfulness and reliability both as a witness and as an
historian.

(b) In relation to the Bunnings Incident:

i.

Whether the defendant was negligent in breaching any owed duty of care to the plaintiff; and
ii. Whether the plaintiff was contributorily negligent by his conduct in the said
incident and, if so, the degree of apportionment applicable to the plaintiff’s
own negligence.

(c) In relation to the Eastlake Incident:

i. Whether the plaintiff was wrongly arrested or imprisoned; and
ii. Whether the plaintiff was assaulted or whether the actions of the
defendant’s employee were in self-defence.

(d) In relation to MVA 2 (2015):

i. Whether the nature of the collision was such as to cause any injury; and

ii.

Whether the plaintiff suffered any injury, aggravation of injury or aggravation of claimed disability in consequence of the collision.

(e) In relation to MVA 3 (2018):

i.

Whether plaintiff was contributorily negligent by his conduct in the said accident, and, if so, the degree of apportionment applicable to the
plaintiff’s own negligence; and
ii. If the plaintiff did fall from a ladder on 8 February 2018 as alleged, whether any injuries and/disabilities attributable to the 25 January 2018 motor vehicle accident caused the fall.

(f)

The plaintiff claims damages in relation to all accidents, and putting liability and credibility issues to one side, all aspects of quantum are in issue.

Earlier Medical Reports

10.

The Defendant’s Tender Bundle (Ex. 5) contained extensive medical reports for the

plaintiff dating back to 1999, including reports prepared in relation to other legal proceedings. In respect of the reports that were unrelated to the current proceedings, the parties agreed that they would not be relied upon to advance any opinions contained therein. Rather, they would be relied upon for purposes of credit only (T 236). The reports subject to this caveat were identified in MFI 2 and highlighted in yellow.

Credit and Reliability of the Plaintiff

11.	The defendants in these proceedings have taken issue with the credit and reliability of the plaintiff as a witness, including extensive submissions as to demeanour.

Defendants’ Submissions on Credit and Reliability

12.	In written submissions, Bunnings characterised the plaintiff as an unreliable and “less than forthright witness” who consistently answered questions in an evasive manner: at
[10] and [129].
13.	Similarly, the NRMA defendants submitted the plaintiff’s evidence was “non-
responsive, calculating and cagey and, in many other respects, he was a difficult and
an unreliable witness”. Their submissions describe the plaintiff as acting as an
“advocate” and submitted the analysis of his evidence would be a task “fraught with
difficulty and one which commends the sharpest degree of judicial diligence in
analysing what the plaintiff actually said in his evidence”: at [5]-[8]. A number of examples from the transcript said to illustrate the plaintiff’s unreliability were extracted
in written submissions ([79] ff), including:

(a) Vague and evasive answers regarding the particulars of the alleged domestic
assistance received and allegedly “feigned” lack of understanding about that
head of damage;

(b)

Evasive answers regarding the obligation of telling the truth to doctors in preparation for his case;
(c) A “bizarre” explanation for his need to wear an eyepatch and darkened glasses
to assist with pain and concentration, which was not repeated on any
subsequent day of trial;

(d)

His evidence that Ms Southorn could speak to the level of domestic assistance and that he asked Ms Southorn to write down the details, but that they did not discuss the detail;
(e) The plaintiff “pretending” only to be able to answer a question without
interrupting if counsel used words to the effect of “end of question”;

(f) His “evasive” answer to a question about why he did not correct Dr Griffith’s
report with respect to pre-existing diplopia;

(g) The plaintiff’s “attack” on the report of Dr Harrison, where, in the NRMA
defendants’ submission, it was unfavourable to him;

(h) His evidence that it was his memory and concentration that caused him to stop work as a chiropractor; and
(i) His denial in oral evidence of his own conduct following the fall he suffered in February 2018.

14.	Each of the above examples was supported by references to the transcript. It was further submitted that there was no medical evidence which sufficiently explains the
plaintiff’s behaviour in the course of giving evidence: at [67]-[69].
15.	Additionally, the NRMA defendants, in written submissions, submitted that the plaintiff
was untruthful. Reliance was placed on an instance in which the plaintiff “attempted to explain away” material in a Motor Accident Notification Form (Ex. 14) by stating that he
had signed the form prior to it being filled out, at the invitation of his then solicitor: at
[214]. The NRMA defendants further relied on the plaintiff’s evidence that, following a
fall on 11 May 2019, he presented to the Canberra Hospital emergency department
where he filled out a document styled “Territory Wide Assessment”, which was later
read and accepted by a doctor: at [221]-[226]. The evidence of two staff from the hospital was that a patient would not have been provided with such a form: at [228]-
[232]. The NRMA defendants submitted that these particular instances also have “clear and significant probative value on the question of Mr Ryan’s credit and his reliability
generally”: at [233].
16.	Overall, the NRMA defendants submitted that the plaintiff was an “opportunistic, obsessive, over-reaching, perennial claimant”: at [48].
17.	Eastlake submitted that the plaintiff lacked any credibility as a witness and suggested
the plaintiff had provided “deliberately incorrect or inconsistent versions” of events and
that the plaintiff had lied, or omitted the full truth, about the alleged injuries and pre-
existing conditions. Eastlake’s written submissions concluded that, as a witness, the plaintiff was “evasive, dogmatic and uncooperative… [he was] not prepared to make
any concession he thought might affect his case”: at [6]. In this respect, I was referred
to the principled approach to the assessment of credibility discussed in The Nominal Defendant v Cordin [2017] NSWCA 6; 79 MVR 210 (Cordin).
18.	In support of their submissions, Eastlake identified a number of examples said to
demonstrate the plaintiff’s lack of credibility, including the following:

(a)

The plaintiff gave inconsistent answers in oral evidence and to various doctors as to how long he ceased working as a chiropractor following the Eastlake Incident, ranging from 2 weeks, to 18 months, to a complete cessation: at [182]- [203].
(b) The Business Activity Statements (BAS) for the plaintiff’s chiropractic business
demonstrate that the first three quarters of 2014 were the best quarters for gross income for the period of 1 July 2012 to 30 June 2016, in direct contradiction with
the plaintiff’s sworn evidence about cessation of work following the Eastlake
Incident: at [204]-[218].

(c) The plaintiff provided false information to the Trustee in Bankruptcy as to the date when he ceased working and his rental expenses: at [219]-[231].
(d) The plaintiff’s oral evidence that memory issues and consequential depression
only arose after the Eastlake Incident is inconsistent with the evidence, including
his own previous accounts: at [232]-[240].
(e) Allegations that the plaintiff was able to work fulltime as a chiropractor prior to these incidents are contradicted by various medical reports, undermining the
histories provided to medical experts in the plaintiff’s case: at [241]-[275].

19.	The written submissions of the GIO defendants similarly described the plaintiff as an unreliable, evasive, argumentative and unresponsive witness, and even where that was not the case, it was submitted he was a generally poor historian: at [9]-[15]. Examples were again provided: at [10]-[11]. It was submitted that to alternatively rely upon
histories provided in medico-legal reports would be “fraught with danger” and
submitted, at [17], that the utility of such evidence should be:

[L]imited to the degree to which it tends to corroborate or contradict the evidence given by the plaintiff under oath and, to whatever extent is does, it either adds or detracts from the
weight to be given to the plaintiff’s oral testimony. Such histories cannot be cherrypicked to
supplant gaps in the plaintiff’s testimony and expert evidence.

Plaintiff’s Submissions on Credit and Reliability

20.	It was accepted in the plaintiff’s submissions that the plaintiff’s credit has been made
central to the resolution of these matters: at [3]. The plaintiff submitted, however, that inhibited cognitive and memory functions necessarily make the plaintiff a poor historian
and that a history of past claims should not, in and of itself, undermine the plaintiff’s credibility. By contrast to the submissions of the defendants, the plaintiff’s submissions
characterised the oral testimony of the plaintiff as “obsessive” in seeking to answer and
understand questions; as attempting to assist the court and answer honestly; and as attempting to utilise his own medical knowledge to correct and question medical reports in order to clarify rather than be dishonest: at [7] and T 1701.6-22.

Consideration

Demeanour

21.	On the question of demeanour and credibility, the High Court recognised in Fox v Percy [2003] HCA 22; 214 CLR 118 (Fox v Percy) that there is a body of research that casts doubt on the ability of judges to make credibility findings based on demeanour. The High Court stated at [31]:

Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events.

22.	More recent research underscores the point made in Fox v Percy: see CF Bond and
BM DePaulo, ‘Accuracy of Deception Judgments’ (2006) 10 Personality and Social Psychology Review 214 and Michael Green, ‘Credibility contests: the elephant in the room’ (2014) 18(1) International Journal of Evidence and Proof 28.
23.	In Craig v Silverbrook [2013] NSWSC 1687 at [140]-[142], Sackar J made a number of apposite observations in relation to demeanour. These observations included that the assessment of demeanour is a crude methodology and that, nevertheless, where a trial judge is faced with a stark choice between irreconcilable accounts, the assessment of credibility is of importance:

Whilst a trial judge is entitled to make observations relating to the demeanour of certain witnesses, it is a notoriously crude and inaccurate methodology. Its defects have been exposed on numerous occasions.
In that regard, I am of course mindful of the comments of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at ([30]-[31]) when they remarked (citations omitted):
It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the
appearance of witnesses. Thus, in 1924 Atkin LJ observed in Societe d’Avances
Commerciales (Societe Anonyme Egyptienne) v Merchant Marine Insurance Co (The
“Palitana”):
“… I think that an ounce of intrinsic merit or demerit in the evidence, that is to
say, the value of the comparison of evidence with known facts, is worth pounds
of demeanour.”
…

In the recent decision of McGraddie v McGraddie and another [2013] UKSC 58; [2013] 1 WLR 2477, the UK Supreme Court emphasised that, especially in cases where a trial judge
is faced with a stark choice between irreconcilable accounts, the credibility of the parties’
testimony, and the trial judge’s assessment of the character of witnesses and the manner in
which the witnesses give evidence, is of primary importance. Those observations are particularly relevant in the present case. Similar observations have been made in Australian authorities (Fox v Percy at [23]; Rosenburg v Percival [2001] HCA 18; (2001) 205 CLR 434
at [41] per McHugh J and see generally comments in Ritchie’s Uniform Civil Procedure NSW
at SCA s 75A.20).

24.	Further, in Cordin, Davies J discussed a number of authorities in relation to credibility,
including Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403; Gestmin
SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560; Campbell v Campbell [2015] NSWSC 784; Watson v Foxman (1995) 49 NSWLR 315; Camden v McKenzie [2008] 1 Qd R 39; and NSW v Hunt (2014) 86 NSWLR 226.
25.	Relevantly, Hallen J in Evans v Braddock [2015] NSWSC 249 stated at [73]:

The credibility of a witness and his, or her, veracity, may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall
probabilities: Armagas Ltd v Mundogas S.A. (The “Ocean Frost”) [1985] 1 Lloyd’s Rep 1, per
Robert Goff LJ, at 57. Also see, In the matter of Kit Digital Australia Pty Ltd (in liq) [2014]
NSWSC 1547, per Black J, at [7].

26.	Thus, it is abundantly clear from the authorities that the assessment of demeanour has its limitations and that credibility may be more accurately tested by reference to objective facts, motive, and overall probabilities.

Medical Evidence

27.	A judge must not disregard reliable medical evidence due to concerns about the
plaintiff’s credibility. The case must be decided on the whole of the evidence, including
objective evidence of diagnostic tests which are unaffected by the plaintiff’s credit: see
Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104 at [49]; Petrovic v VWA [2018] VSCA
243 at [76]; and Pulling v Yarra Ranges Shire Council [2018] VSC 248 at [51].
28.	Additionally, in a broadly similar vein, in personal injury cases, the comments of Basten JA in Mason v Demasi [2009] NSWCA 227 at [2]-[4] are relevant:

First, the trial judge was invited to discount the appellant’s oral testimony on the basis of
accounts given to various health professionals, which appeared inconsistent either with each other, or with her oral testimony, or both. The difficulties attending this kind of exercise should be well-understood; as explained in the Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8]. Such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others:

(a) the health professional who took the history has not been cross-examined about:
i.           the circumstances of the consultation;
ii.           the manner in which the history was obtained;
iii.           the period of time devoted to that exercise, and
iv.           the accuracy of the recording;

(b) the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;
(c) the record did not identify any questions which may have elucidated replies;
(d) the record is likely to be a summary prepared by a health professional, rather than a verbatim recording; and
(e) a range of factors, including fluency in English, the professional’s knowledge of
background circumstances of the incident and the patient’s understanding of the
purpose of the question, which will each affect the content of the history.

The fact that, in the present case, none of the health professionals was called to give oral evidence as to the matters in issue may not itself be a point of significance. It is unlikely that cross-examination would have advanced any issue in dispute; the witness being likely to have no relevant recollection of taking the history, the oral testimony would be largely limited to an assertion of usual practice.
Thirdly, and more significantly, it was quite possible that the elements of florid expression
and exaggeration in the applicant’s oral testimony (and in some of the recorded histories)
may have been a function of her psychological state. This was not something that the trial judge could readily assess without expert assistance, but it was a possibility that should not have been ignored. On one view, the pre-attack records (particularly the notes of Dr Hamad) were devoid of the flamboyant language found in post-attack accounts.

29.	Thus, it is also clear from the authorities that drawing conclusions from inconsistencies
in accounts as between health professionals and a plaintiff’s testimony should be
approached with caution.

Approach to be Adopted

30.	Relevantly, in Director of Public Prosecutions (NSW) v Elskaf [2012] NSWSC 21, Garling J outlined at [60]-[61] the following considerations with respect to the
assessment of a witness’s credibility:

It is necessary for a judicial officer to explain why he or she has found the evidence of a witness to be unacceptable. The possible bases for such a finding would include (but are not limited to):
(a) contradictory evidence of the same events or incidents from another witness;
(b) contradictory evidence from contemporaneous documents;
(c) inconsistencies or contradictions within a witness' own evidence;
(d) the demeanour of a witness, including the manner of giving evidence; and
(e) evidence of conduct or behaviour which is inconsistent with mandatory practices of
police officers, or else those practices which are regularly followed by police officers.

A party who has called evidence from a witness, which is relevant and apparently probative, and whose evidence is not accepted is entitled to know of the basis of that non-acceptance, in order, at least, to be able to assess the prospect of a successful appeal.

31.	It is important at this juncture that I make it clear that my view of the plaintiff’s credibility
is not based on his demeanour. Nor is my view based on the history of past claims. Nor is my view of his credibility based on poor historianship.
32.	It is self-evident that a history of past claims does not undermine the plaintiff’s
credibility; so much was expressly conceded, or not cavilled with, by the various defendants (T 1669.18-20 and 1716.35-45). Nor do I assume that a poor historian is for that reason alone not entitled to be believed. I have had regard to the psychiatric evidence in relation to depression, cognitive ability, and memory. A poor historian is not necessarily a dishonest historian.
33.	My adverse view of the plaintiff’s credibility is based on the following:

(a)

contradictory evidence of the same events from another witness, specifically three separate witnesses in relation to three separate events; and
(b) contradictory evidence from contemporaneous documents.

34.	I will deal immediately below with the contradictory evidence of the same events from another witness, in relation to three separate events in reverse chronological order. I will deal with contradictory evidence from contemporaneous documents immediately
thereafter. Where inconsistencies and contradictions within the plaintiff’s own evidence
are apparent, such inconsistencies will be dealt with, where relevant, in relation to each separate incident.

Contradictory evidence from another witness: MVA 2 (2015)

35.	With respect to the MVA 2, I prefer the evidence of Mr Stephen Cain to the evidence of the plaintiff. In my view, the defendant, Mr Cain, gave straightforward, clear, and
precise evidence and was not shaken under cross-examination. Mr Cain’s evidence was of an insignificant degree of contact between his vehicle and the plaintiff’s vehicle while parking. The plaintiff asserted that he had been “slammed into” (T 1121.41-43).
Mr Cain noted while inspecting his vehicle that his number plate must have come into
contact with the plaintiff’s towbar. Mr Cain stated that there was “no damage to either vehicle” (T 1122.15-21 and T 1123.36-43). He was troubled by the plaintiff’s statement
in response: “this is to be determined” (T 1122.15-21). He was concerned that “there was something bizarre about the incident” (T 1123.45-46). Such was his concern that
he lodged a police report about the incident. That police report was Exhibit 49 in the proceedings; it includes the following:

I was edging in a forward direction behind vehicle 2 which was parked in the forward of 2 car spaces. As I edged up closer ready to reverse I sensed a slight resistance and thought it must have been my front wheel bumping a brick or debris on the road as I felt I was still well clear of the parked vehicle. Once parked I saw that the parked vehicle had a massive hayman reese type towbar but there was no damage or noticeable mark on the towbar and only a
small dent the size of a 20 cent coin in my vehicle’s number plate. The driver of the parked
vehicle and I exchanged details and I wouldn’t have even thought necessary to report the incident except I was concerned over the other driver’s behaviour. While he wasn’t
aggressive, he was agitated and even though obvious the contact had caused no damage to his vehicle emphasised that would need to be determined and that he was concerned over an existing neck injury. I should give him the benefit of doubt and possibly the agitation
was nothing but would hate to think [there was] a view to file a compensation claim
as that would seem opportunist at best.
(Emphasis added).

36.	The submission made by counsel for the NRMA defendants at [194] was as follows:

When the narrative composed by Mr Cain, concerning the circumstances of the accident as reported to police, is read in its entirety, it is impossible not to gain the impression that Mr Cain, an honest, upstanding member of the community, was fearful that he had encountered a charlatan who was prepared to make a false claim for damages in circumstances where no conceivable damage to him could have been caused and no damage to his vehicle was caused.

37.	I accept on the balance of probabilities the evidence of Mr Cain that the accident occurred in the manner he described in his evidence. It follows that I am satisfied that the account given by the plaintiff is not correct and not reliable.

Contradictory evidence from another witness: MVA 1 (2013)

38.	With respect to the first car accident, I prefer the evidence of Ms Jade O’Halloran to
that of the plaintiff. In my view, Ms O’Halloran gave clear and straightforward evidence
and was not shaken to any significant extent under cross-examination. I reject the
plaintiff’s submissions in relation to her evidence. The plaintiff gave evidence that Ms
O’Halloran made a statement admitting liability immediately following the accident (T
495.5-8):

Yes. Well not word-for-word, but she, basically, said she was sorry. She had a lot of motor vehicle accidents in the past and she was just distracted by the car accident to her left and apologised.

39.	Ms O’Halloran denied making such a statement. I accept Ms O’Halloran’s denial. I do
not accept the veracity of the plaintiff’s statement in that regard. Ms O’Halloran stated
that she suffered no injury (T 1099) and that the collision was minor (T 1098). She further stated that she had not previously been involved in a motor vehicle collision
(T1097). Ms O’Halloran gave evidence that she did not tell the plaintiff that the accident was her fault. Ms O’Halloran additionally gave evidence that she did not tell the plaintiff
that the accident was one of a number of accidents she had been involved in (T1101).
40.	I accept on the balance of probabilities the evidence of Ms O’Halloran that the accident
occurred in the manner she described in her evidence. I accept Ms O’Halloran’s version
of the conversations. It follows that I am satisfied that the account given by the plaintiff as to the accident and the conversations is not correct and not reliable.

Contradictory evidence from another witness: The Bunnings Incident (2012)

41.	With respect to the Bunnings incident, Ms Schramm, an employee of Bunnings, gave
evidence that she was standing to the side of the “people greeter”, Ms Westlin, when
Ms Schramm gestured to the air conditioner and remembered “feeling the brush of something and then seeing a gentleman grab his nose” (T 1077.38-39).
42.	The plaintiff gave evidence: “so then I went through the second door and I turned
immediately to my right, and I got smacked in the face” (T 57.33-35).
43.	I accept the evidence of Ms Schramm that the contact was in the nature of a “brush of something” (T 1077.39). I do not accept that the plaintiff was “smacked in the face” (T
57.35). I prefer the evidence of Ms Schramm to the evidence of the plaintiff. Ms Schramm gave straightforward, clear, and precise evidence and was not shaken in cross-examination.
44.	I accept on the balance of probabilities the evidence of Ms Schramm that the incident occurred in the manner she described in her evidence. It follows that I am satisfied that the account given by the plaintiff is not correct and not reliable. I am satisfied that the
contact was in the nature of being a “brush” (T 1077.39) and not a “smack”, as asserted
by the plaintiff (T 57.35).

Contradictory evidence from contemporaneous documents

45.	In examining the credibility of the plaintiff, his evidence that the Eastlake Incident caused him to develop memory and concentration problems which caused him to stop working as a chiropractor must be contrasted with contemporaneous BAS records.
46.	The plaintiff, in evidence in chief, asserted that following the Eastlake Incident: “my memory just lost it” (T 41.07); “my memory/concentration just went out the window. I
just couldn’t remember things”; and “I stopped treating people” (T 112.26-37). When
asked what had happened since the onset of that condition, he stated “I don’t practice anymore” (T 112.40). When further questions were asked in chief about his capacity to work after the Eastlake Incident, he said in unequivocal terms: “My capacity to work stopped … I had no capacity to work … Because I couldn’t remember what I was talking about” (T 113.40-45). There was no qualification in this evidence about his capacity to
work as a chiropractor.
47.	In cross-examination, the plaintiff initially confirmed that it was his evidence that he had stopped work after the Eastlake Incident and that he initially answered this was within
two weeks but immediately qualified that to within “a short period of time that followed”
(T 554.06-23).
48.	The plaintiff filled out a claim form on 11 June 2014, some five months after the Eastlake Incident, in respect of the motor vehicle accident of 20 December 2013 (MVA 1). In that signed document, the plaintiff claimed he had stopped working two weeks after the Eastlake Incident on 26 February 2014 (Ex. 16).
49.	In that document, the plaintiff answered a question in respect of self-employment at 5.9.1 noting that he was working for City First Chiropractic Centre. At question 5.10 he gave the following answer:

Have not attended work since approx. 26 Feb 2014. Lost approx. $1,153 for every week
off work – NB this amount is an estimate and does not include lost income from other
jobs.

50.	In the following question, 5.11, the plaintiff ticked the box for no in response to ‘Is the business still operating?’.
51.	The plaintiff was cross-examined on the claim form at T 571.25 and following. He agreed that what was written there was what he had told his solicitors (T 572.17). He agreed that he had told his solicitors in the completion of that form that he had not worked since approximately 26 February 2014 and that he had signed the document.
52.	On 12 August 2015, the plaintiff’s general practitioner, Dr John Broderick of Phillip Medical Centre recorded that the plaintiff told him he had “not worked for 18 months”
(Ex. 52 p. 251).
53.	Additionally, the plaintiff relied on a series of reports from Dr Le Leu. At page 17 of Dr
Le Leu’s report dated 17 October 2016 (Ex. 51 p. 69), the following history as provided
by the plaintiff is recorded:

He was still working after the December 2013 MVA, but after the Eastlake Club assault he completely stopped work, he had effectively stopped working several months before the car accident below.
The main things stopping him from working were poor concentration, his memory which had
“gone out the window” and the neck.

54.	The plaintiff was cross-examined about that history at T 617.
55.	The plaintiff saw Dr Saboisky, a medico-legal psychiatrist retained by Eastlake. Dr
Saboisky’s report is dated 22 August 2017 (Ex. 5 p. 354) and contains the following:

He [the plaintiff] said that the pain has caused sleep problems and also weakness in his hands so that he cannot work.
Two weeks after the event [the Eastlake Incident] he said, “I couldn’t remember anything”
and he was unable to work. He could not work out factors so that he could arrange x-rays.
He said the depression started then.

56.	The plaintiff told Dr McDonald, an orthopaedic surgeon retained on behalf of Eastlake, in a report dated 24 August 2017 that, after the Eastlake Incident, he stopped working for approximately 18 months as a chiropractor (Ex. 5 p. 360).
57.	The plaintiff tendered reports from Dr David Gorman, an occupational specialist. Dr
Gorman was told by the plaintiff, via a corrective letter, that the plaintiff “has not worked since 2014” (Ex. 51 p. 103).
58.	The plaintiff was cross-examined about his history given to Dr Gorman at T 558.24 and
he agreed that he had asked for items in Dr Gorman’s report of 19 September 2017 to
be changed. One change involved altering “Our client has not worked since 2014 with any substance” (which he initially said was correct) to “Mr Ryan has not worked since 2014”.
59.	The plaintiff initially denied changing the version of events. He then agreed that the changes made by Dr Gorman were made on his instructions to his solicitors (T 559.19)
but qualified his concession by stating he “tried to do something, I had to have some
money from somewhere”. He then confirmed that he did cease working in the night club
in 2014. At T 559.35, the plaintiff made the following statement: “Well, my tax returns would show what I did and what I didn’t do”.
60.	The plaintiff also tendered reports from Dr Glen Smith, a psychiatrist who was provided a history that the plaintiff had not worked as a chiropractor since 2014 (Ex. 51 p. 107).
61.	Dr Smith agreed in cross-examination that the plaintiff had told him that he had stopped working as a result of the psychological impact of the Eastlake Incident (T 1310.20-46).
62.	The evidence of the plaintiff in Court was that he “had no capacity to work” after the
Eastlake Incident (T 113.40-43)
63.	The plaintiff was cross-examined about this cessation of work as a chiropractor and his BAS (Ex. 22).
64.	The plaintiff gave evidence that his BAS records were prepared in the following fashion:

• he kept records of his patients’ attendances and charges;
• those records were then provided to a bookkeeper;

•

the bookkeeper compiled the income and expenses for each quarter based on these records;

•

he had no complaint with the competence or work performed by his bookkeeper; and
• the bookkeeper would then forward the compiled income and expenses
material to the plaintiff’s accountants for preparation of BAS records and income
tax returns (T 550.10-43 and T 621.30-45).

65.	That evidence supports a finding that the BAS returns were prepared on the plaintiff’s
instructions and as such are an accurate and contemporaneous record of his earning capacity in the relevant periods.
66.	The plaintiff agreed that the BAS records for his chiropractic business were separate to any other income (T 622.25).
67.	The BAS records in Ex. 22 represent the income generated by the plaintiff as a chiropractor in the 18 months prior to and following the Eastlake Incident are as follows in terms of gross income:

• 1 July – 30 September 2012: $9,650
• 1 October – 31 December 2012: $5,891
• 1 January – 31 March 2013: $10,098
• 1 April – 30 June 2013: $13,580
• 1 July – 30 September 2013: $12,923
• 1 October – 31 December 2013: $11,934
• 1 January – 31 March 2014: $19,764
• 1 April – 30 June 2014: $15,874
• 1 July – 30 September 2014: $15,216
• 1 October – 31 December 2014: $4,798
• 1 January – 31 March 2015: $10,833
• 1 April 2015 – 30 June 2015: $9,799
• 1 July 2015 – 30 September 2015: $13,027
• 1 October 2015 – 31 December 2015: $8,116
• 1 January 2016 – 31 March 2016: $7,341
• 1 April 2016 – 30 June 2016: $9,628

•

There is also tendered a Profit and Loss Statement for the tax year ended 30 June 2017 showing income of $33, 696

68.	These BAS records demonstrate that in the 18 months prior to the Eastlake Incident in 2014, the plaintiff earned a gross income as a chiropractor of between $6,000 and $13,500 per quarter. Those amounts were consistent with a longstanding reduced capacity to earn income as a chiropractor due to numerous pre-existing injuries.
69.	The BAS records for the first three quarters of 2014 demonstrate the three best quarters for gross income over the whole period, with earnings of $19,764, $15,874 and $15,216
respectively. The amounts that followed (October 2014 – June 2016) are consistent with the plaintiff’s levels of income between 1 July 2012 and 31 December 2013.
70.	The gross income shown is a measure of the plaintiff’s working capacity, as he billed
on the basis of time practiced. That is his gross income generated by work as a chiropractor prior to expenses.
71.	An increase in gross income accordingly reflects an increase in the plaintiff’s work as
a chiropractor. Those increases occurred after the Eastlake Incident. There was no cessation of income. There was in fact an increase in income in the period after the Eastlake Incident.
72.	The records reveal that the plaintiff kept working and earning increased gross income following the Eastlake Incident. This significant contradiction between his oral evidence
and evidence from contemporaneous BAS records materially undermines the plaintiff’s
credibility and reliability as a witness.

Conclusion – Credit and Reliability of the Plaintiff

73.	I have formed the view, after considering the contradictory evidence in relation to the three incidents from three independent witnesses and the contradictory evidence from contemporaneous documents discussed above, that the plaintiff is an unreliable witness.
74.	The extent of the contradictory evidence casts a shadow over the plaintiff’s evidence. I
have come to the conclusion that his evidence, where controversial, should not be accepted unless corroborated by other reliable evidence: see Maric v The Nominal Defendant [2012] NSWDC 69 at [118]. See also Maric v Nominal Defendant [2013] NSWCA 190 at [23].
75.	The approach I will adopt is that reliance on the plaintiff’s evidence will be dependent
on independent corroboration: see Tuggeranong Town Centre Pty Limited v Brenda Hungerford Pty Limited (No 2) [2017] ACTSC 88 at [964]; Kalenik v Apostolidis & Ors [2009] VSC 208 at [595]; and Toyota Finance Australia Limited v AJI Enterprise Group Pty Ltd [2019] NSWSC 33 at [83].
76.	As I have indicated above at [31], and I underline it here, in making my assessment of the plaintiff, I have not taken into account his demeanour in the witness box. As a general proposition, it is not appropriate, other than in exceptional circumstances, to base any factual findings upon how a person presents in the unfamiliar and often daunting position of being a witness who is subjected to cross-examination: see Maric v The Nominal Defendant [2012] NSWDC 69 at [119] and Fox v Percy at [31].
77.	While I am entitled to take into account my own observations of the plaintiff’s

demeanour and the manner in which he gave evidence, I will refrain from doing so. While his manner of giving evidence was at times what can only be described as idiosyncratic, it is not appropriate in light of the authorities discussed above in relation to demeanour to do so. It is important to cast a clinical forensic eye over the substance of the evidence in this case rather than rely on potentially amorphous indicators of demeanour.

78.	Additionally, as I have indicated above at [31] and underline here, in coming to my
assessment of the plaintiff’s credit, I have put aside entirely the fact that the plaintiff
has a history of past claims. The history of past claims cannot be, and is not, relevant to my determination of credit.
79.	Finally, in relation to credit, the plaintiff’s written submissions at [3.1] state:

To assume a poor historian is for that reason alone not entitled to be believed. Even though there was abundant psychiatric evidence that the plaintiff was suffering from depression, that depression has an adverse impact on cognitive ability, and memory, that the Plaintiff suffered from reduction in his cognitive and memory, thereby making him a poor historian.

80.	As I have stated above, I put aside any question of the plaintiff being a poor historian and, for that reason alone, not entitled to be believed.
81.	The matters I have discussed above in relation to contradictory evidence from other witnesses and contradictory evidence from contemporaneous documents are not matters of mere poor historianship. In my view, these are matters that have a direct,
significant, and telling impact on the plaintiff’s credibility and reliability.

Principles Relating to Assessment of Damages

82.	Due to the plaintiff’s extensive medical history, and numerous accidents and injuries,
there are a number of relevant principles to be taken into account when assessing the damages in relation to each accident.

Plaintiff’s Submissions

83.	The plaintiff, in written submissions, summarised the relevant case law relating to
assessment of damages, noting that “[d]amages may be denied or reduced where the
symptoms of which a plaintiff complains are the result of a pre-existing condition”: at
[242].

Onus of proof: pre- and post-injury conditions

84.	In Watts v Rake (1960) 108 CLR 158 (Watts), the plaintiff suffered a commonly occurring degenerative spinal condition prior to the accident that was the subject of the claim. The High Court held that it was for the plaintiff to prove on a prima facie basis the difference between their condition prior to and post-accident. Once the change in
condition is established, the evidentiary onus is then on the defendant “to exclude the
operation of the accident as a contributory cause”: Dixon CJ at 160.
85.	This position was confirmed by the High Court in Purkess v Crittenden (1965) 114 CLR 164 (Purkess). Barwick CJ, Kitto and Taylor JJ, at 168, stated it was insufficient for the defendant merely to suggest that the plaintiff suffered from a progressive pre-existing condition or that there was a relationship between any pre-existing condition and the
plaintiff’s present incapacity.
86.	Ipp JA delivered the majority decision in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208
(Seltsam), in which the Court considered the plaintiff’s pre-existing health and the
circumstances in which the evidentiary onus transfers to the defendant in accordance with the principles in Watts and Purkess. Ipp JA emphasised that the principles in Watts and Purkess in no way transferred to the defendant the primary onus of proof, that
being the causal connection between the plaintiff’s injury and the defendant’s action or
inaction.
87.	Ipp JA in Seltsam, at [96], stated that, in Watts, Dixon CJ was dealing with three of the
defendant’s contentions:

(a) Firstly, that the plaintiff was predisposed to the conditions that developed as a consequence of the accident;
(b) Secondly, that part of the plaintiff’s condition was traceable to causes other than
the accident; and

(c)

Thirdly, that, had there been no accident, the plaintiff would have been incapacitated by his pre-existing condition.

88.	Ipp JA continued at [96]: “Dixon CJ said that, in regard to the second and third
contentions, there was a presumptio hominis in the plaintiff’s favour that the defendant
should overcome. It was for the defendant to do the disentangling and to exclude the
operation of the accident as a contributory cause.”
89.	Ipp JA summarised the principles as follows at [105]-[109]:

Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situation of the past, future effects of physical injury or degeneration, and the
chance of future or hypothetical events occurring, the exercise of “disentanglement”
discussed in those cases is more easily achieved. That is because the court is required to
evaluate possibilities in these situations – not proof on a balance of probabilities.

Without intending to give an exhaustive list of possibilities, it may be that, had the defendant’s
negligent act not occurred, a pre-existing condition might have given rise to the possibility
that the plaintiff’s enjoyment of life and ability to work would have been reduced and to a
susceptibility to further injury; in addition, other causes entirely unrelated to the defendant’s
negligent act might have contributed to the plaintiff’s ultimate condition.
Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff
not been injured by the defendant’s negligence. A pre-existing condition proved to have
possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation.
As was pointed out in Newell v Lucas [1964-5] NSWR 1597 (at 1601 per Walsh J, with whose judgment Hardie and Asprey JJ agreed), the court must determine whether a comparison
may be made between the plaintiff’s condition prior to the injuries sustained by the
defendant’s negligence (including the plaintiff’s economic and other prospects in that
condition) and the plaintiff’s condition and prospects after the injuries. Nothing in Watts v
Rake and Purkess v Crittenden precludes the judge from carrying out this exercise.
Of course, if the evidence does not adequately establish the pre-existing condition or its possible consequences (as was the case in Purkess v Crittenden), it would not be possible to carry out such a comparison and assessment. In regard to the possible consequences, a scintilla of evidence would not suffice. The evidence must be such that a reasonable person could draw from it the inference that the possible consequences contended for by the defendant existed (see McCormick, Evidence, 5th ed, para 338, p 511).
(Emphasis in original)

Causation – eggshell skull

90.	To establish a claim for damages, a plaintiff must establish not only a breach of duty of care, but also that the breach led to the complained loss.
91.	It is an established principle that a defendant must take a plaintiff as they find them. This has been confirmed by the Full Court of the Federal Court in Australian Capital Territory Schools Authority v El Sheik [2000] FCA 931, where Wilcox J said at [26]:

…If negligence be shown, a defendant must take a plaintiff as he or she is; it is no answer
to say that the plaintiff has suffered a degree of injury exceeding what would be suffered by a normal person without the special vulnerability. However, in assessing the question whether a defendant has been guilty of negligence, the fact that the defendant was unaware of the special condition is of considerable importance. A defendant must exercise reasonable care, having regard to the information actually or constructively known to the defendant. It follows that, in the present case, the question of breach of duty must be evaluated on the
same basis as if Mr El Sheik did not suffer a special vulnerability…

92 .	In Commonwealth of Australia v McLean (1996) 41 NSWLR 389 at 406, Handley and
Beazley JA stated: “The ‘eggshell skull’ principle makes a defendant liable for damage
of an unforeseeable extent, but not for unforeseeable damage of a different kind”.
93.	This principle takes into account the physical, social, and economic attributes of the plaintiff which might make them more susceptible to injury: Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 502 at 537 (McHugh JA).
94.	In Chapman v Hearse (1961) 106 CLR 112 at 120, the High Court approved the following passage from Haynes v Harwood (1936) 1 KP 46 at 156:

It is not necessary to show that this particular accident and this particular damage were probable; it is sufficient if the accident is of a class that might well be anticipated as one of the reasonable and probable results of the wrongful act.

95.	The plaintiff submitted at [257] that the following principles, discussed in the authorities above, are apposite in this case:

(a) The ‘eggshell skull’ principle makes a defendant liable for damages of an
unforeseeable extent but not for unforeseeable damage of a different kind. Under this principle, a defendant is liable for additional damage of a foreseeable kind suffered by a plaintiff who has some special vulnerability.

(b)

A wrongdoer is responsible for all damage of the same type or kind as was reasonably foreseeable, even if the particular damage or its extent were not reasonably foreseeable, or damage occurred in an unexpected or unforeseeable manner.

96.	The plaintiff submitted that “the plaintiff was vulnerable prior to the accident but his
opportunity for a full life was substantially impaired by the series of events the subject
of these claims.” Further, the “residual capacity” that the plaintiff did have prior to 2012
was “extinguished completely” by the time of the last incident in 2018: at [258].
97.	With reference to Dr Bentivoglio’s reports dated 30 June 2017 and 8 March 2018, the
plaintiff submitted that the defendants must accept that the plaintiff was in a vulnerable
physical condition, and that it is the aggravation of this vulnerable condition – which
may seem minor from a medical point of view but which has been significant in its effect
on the plaintiff – for which the defendants must compensate the plaintiff: at [260]-[261]. In the plaintiff’s submission, the significance of the impact of this ‘aggravation’ of pre-
existing conditions can be seen through the plaintiff’s working capacity and working life
prior to 2012: at [262].
98.	The plaintiff’s working capacity prior to 2012 was a significant matter of contention
between the parties.

Principles of Apportionment

99.	The plaintiff submitted that an apportionment approach was appropriate in relation to the assessment of damages. The defendants submitted against such an approach (T 1634.23-27).
100.	In light of my factual findings, an apportionment approach is neither appropriate nor
available on the plaintiff’s case.

Evidence

101.	The oral and written medical evidence in this case was extensive. Summaries of the medico-legal reports prepared in relation to these incidents are included below in relation to each accident.
102.	Clinical notes, reports from treating doctors, and other evidence tendered has been taken into consideration but has not been explicitly referred to, except where the evidence was the subject of witness examination or submissions.

Legislation

103.	The following provisions from the Civil Law (Wrongs) Act 2002 (ACT) (Wrongs Act) are relevant to actions in negligence:

42 Standard of care

For deciding whether a person (the defendant) was negligent, the standard of care required
of the defendant is that of a reasonable person in the defendant’s position who was in
possession of all the information that the defendant either had, or ought reasonably to have
had, at the time of the incident out of which the harm arose.
43 Precautions against risk—general principles
1) A person is not negligent in failing to take precautions against a risk of harm unless—

a.

the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
b. the risk was not insignificant; and
c. in the circumstances, a reasonable person in the person’s position would
have taken those precautions.

2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things):

a. the probability that the harm would happen if precautions were not taken;
b. the likely seriousness of the harm;
c. the burden of taking precautions to avoid the risk of harm;
d. the social utility of the activity creating the risk of harm.

44 Precautions against risk—other principles

In a proceeding in relation to liability for negligence—

a.

the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and

b.

the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which it was done; and

c.

the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and is not of itself an admission of liability in relation to the risk.

Part 4.3 Causation
45 Causation – General principles
1) A decision that negligence caused particular harm comprises the following elements:

a. that the negligence was a necessary condition of the happening of the harm
(‘factual causation’);

b. that it is appropriate for the scope of the negligent person’s liability to extend
to the harm so caused (the scope of liability).

2) However, if a person (the plaintiff) has been negligently exposed to a similar risk of harm by a number of different people (the defendants) and it is not
possible to assign responsibility for causing the harm to 1 or more of them—

a. the court may continue to apply the established common law principle under which responsibility may be assigned to the defendants for causing the harm; but
b. the court must consider the position of each defendant individually and state the reasons for bringing the defendant within the scope of liability.

3) In deciding the scope of liability, the court must consider (among other relevant things) whether or not, and why, responsibility for the harm should be imposed on the negligent party.
46 Burden of proof
1) In deciding liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation.
…

102 Apportionment of liability—contributory negligence
1) If a person (the claimant) suffers damage partly because of the claimant’s failure to
take reasonable care (contributory negligence) and partly because of someone
else’s wrong—

a. a claim for the damage is not defeated because of the claimant’s contributory
negligence; and

b. the damages recoverable for the wrong are to be reduced to the extent the court deciding the claim considers just and equitable having regard to the
claimant’s share in the responsibility for the damage.

2) However, if the claimant suffered personal injury and the wrong was a breach of statutory duty, the damages recoverable by the claimant for the personal injury must
not be reduced because of the claimant’s contributory negligence.
…

168 Liability of occupiers
1) An occupier of premises owes a duty to take all care that is reasonable in the circumstances to ensure that anyone on the premises does not suffer injury or
damage because of—

a. the state of the premises; or
b. things done or omitted to be done about the state of the premises.

2) Without limiting subsection (1), in deciding whether the duty of care has been discharged consideration must be given to the following:

a. the gravity and likelihood of the probable injury;
b. the circumstances of the entry onto the premises;
c. the nature of the premises;

d.

the knowledge the occupier has or should have about the likelihood of people or property being on the premises;
e. the age of the person entering the premises;
f. the ability of the person entering the premises to appreciate the danger;

g.

the burden on the occupier of removing the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.

The Bunnings Incident

Introduction

104.	It was agreed between the parties that, on 18 January 2012, the plaintiff entered the foyer of Bunnings Warehouse on Newcastle Street in Fyshwick where an employee of the defendant was standing (Statement of Claim dated 15 January 2015, Defence dated 15 March 2016).
105.	In the Statement of Claim dated 15 January 2015, the plaintiff alleged that upon entry
to the premises “suddenly and without warning, the employee swung her arm, hitting
the plaintiff in his face”, causing him injuries, disabilities, loss and damage.
106.	It was alleged in the Statement of Claim dated 15 January 2015 that, as a result of the Bunnings Incident, the plaintiff suffered the following injuries:

(a) shock;

(b) fracture to nasal bone and nasal septum; and
(c) pain in the face and nose.

107.	It is further alleged that, as a result of the Bunnings Incident, the plaintiff suffered the following disabilities:

(a) difficulty breathing;
(b) necessity for rhinoplasty surgery;
(c) necessity for septal reconstruction to realign nasal bones and nasal septum;
(d) recurring sinus infection;
(e) headaches;

(f) necessity for pain relief medication; and
(g) necessity for attendance on medical specialists.

108.	The plaintiff sought damages for medical expenses and past and future economic loss.
109.	The defendant denied that any injury, disability or loss was the result of a breach of a duty of care and further said that any injuries suffered were pre-existing or caused by
a different event. Further, the defendant submitted the plaintiff’s injuries (which are not admitted) were caused or contributed to by the plaintiff’s own negligence.

Medical Baseline

110.	On 17 February 2020, in oral submissions, the plaintiff acknowledged that, at 18 January 2012, the plaintiff was suffering from a number of pre-existing health conditions. The plaintiff suffered degeneration of the spine, in particular the cervical spine. He had a long history of psychological difficulties, including depression, and was the victim of a king-hit assault in 2006 which resulted in a fracture to the orbit around his eye. Shortly prior to the Bunnings Incident, the plaintiff had some facial work done to repair a deviation in the nasal septum, in order to remedy the consequences of the earlier assault. Furthermore, the plaintiff had a long history of diplopia, which varied in
its effect, and “had either resolved or was resolving” prior to the Bunnings Incident (T 1636.21-1637.2). The defendant accepted this medical baseline “in general terms” (T
1638.1-5).

Evidence

Lay Evidence

The plaintiff

111.	It was the plaintiff’s evidence that he attended Bunnings Fyshwick on 18 January 2012

to buy paint. The plaintiff described walking through the front door of the shop and
turning right. After taking a step, he stated he was then hit in the “central left” side of his face, “over the eye between the nasal bone – nasal septum, middle of my face, and
the outside of my eye” (T 29.1-10).The plaintiff described being hit by an employee who “does the directing”; the employee was facing away from him, talking to another staff
member to her right (T 29.12-15). The plaintiff had seen the employee in his peripheral
vision (T 64.20-34). The impact was described as a “smack in the face” (T 29.29 and
57.35).

112.	The plaintiff then deposed that he “went down” two times after being hit and the

employee came to check if he was hurt, allegedly asking whether there was blood on
his face. The plaintiff then told the employee that he had just had “$15,000 in
operations” and that he could “feel blood and stuff going into the back of my throat”; he
then continued towards the paint section (T 29.20-33).

113.	It was the plaintiff’s evidence that a conversation then occurred with the employee

where she expressed concern that she would “get into trouble” and the plaintiff stated
she would have to prepare an incident report (T 29.36-39). The plaintiff then proceeded to pick out some paint before returning to speak to a different employee who was filling
out an incident report. The plaintiff described his pain level as being a “six or seven”
out of ten. While the pain around the nose resolved within a week, the pain under his
eye did not resolve “for a long time” (T 70). The plaintiff further gave evidence of
developing a sore neck “within a short time” after the incident (T 65.3-5).

114.	After the incident the plaintiff deposed that he was unable to breathe through his left
nostril (T 30.6) and that he had “left lateral double vision” that was not present before the incident (T 31.46-32.1). The plaintiff gave evidence this did not affect him a “great deal” in his day-to-day activity, but that he also suffered numbness under his eye for “a
couple of years” (T 65.38-66.4).
115.	The plaintiff gave evidence that he was subsequently operated on by Dr Albekaa. Dr Albekaa operated on his sinuses but did not remove an existing plate due to cost (T 32.10-23). The plaintiff then had the plate removed at the Canberra Hospital (T 32.35), after which he returned to Dr Albekaa to have two operations to resolve breathing issues (T 32.45-33.4).
116.	In cross-examination, the plaintiff accepted that he had previously experienced diplopia following the 2006 assault but asserted this was resolved following the surgery in April 2006 (T 182.29-39). When taken to records in the subsequent years which suggested the continued presence of diplopia, the plaintiff denied that he was continuing to suffer diplopia after 2006 (T 196.40-45). Later in cross-examination, the plaintiff agreed that
in 2014 he told a doctor that he had experienced diplopia “in that little region” since
2006 (T 243.42-244.7).
117.	The plaintiff indicated the extent of treatment on the day of the incident and the following day was to place ice on his face himself. He phoned Bunnings the day after the incident indicating he intended to make a claim (T 205).
118.	The plaintiff accepted that when he saw Dr Stubbs on 25 January 2012, seven days after the incident, he made no mention of the Bunnings Incident (T 211.31-41). The plaintiff was cross-examined further on his failure to mention the Bunnings Incident during an attendance at the Canberra Hospital on 15 February 2012 and a skin examination on 21 February 2012. The plaintiff stated that he did not remember attending Canberra Hospital in February 2012 (T 212), and that the appointment on 21 February 2012 was solely in relation to keratosis on his head (T 214).

Vicky Schramm

119.	Ms Vicky Schramm gave evidence that on 18 January 2012 she was working at Bunnings Fyshwick and at about 4pm that afternoon she went to speak to her colleague, Ms Sandra Westlin. Ms Schramm recalled Ms Westlin was working as a
“store greeter” and that Ms Schramm was standing to her left, with both women facing
into the store with their backs to the carpark outside (T 1076.12-1077.10).
120.	Ms Schramm’s evidence was that, while in this position, she indicated with her left hand
to an air-conditioning unit over the tool shop. Ms Schramm demonstrated this by holding her arm at a 90-degree angle with left index finger pointing upwards. She agreed her hand was open (T 1077.20-33 and 1198).
121.	While Ms Schramm’s arm was in this position, Ms Schramm recalled “the brush of something” against the back of her hand and then seeing a man “grab his nose” (T

(a)

the collision was low speed and there was no expert evidence adduced as to how fast Mr Bhagria was travelling;

(b)

Dr Gibson opined the force of the accident, involving a change in velocity of between 4 km/h to 8 km/h, was not sufficient to cause the alleged injuries (Ex. 5 p. 399);

(c)

the plaintiff gave evidence he was wearing a seatbelt and there was no head strike (T 825.17-19);
(d) the AFP Case Summary noted “little to no damage to both vehicles”;
(e) Dr Delaney relied upon the plaintiff’s report and his letter of instruction for his
assumption of concussion, and the reference to concussion in the form signed
by Dr Broderick had been inserted by the plaintiff himself;

(f)

Professor Mattick opined that the evidence did not support a finding of concussion; and

(g)

In cross-examination, Dr Le Leu stated he would not have been confident to draw his conclusion that the alleged concussion caused the February Fall had he known of the pre-existing upward gaze diplopia (T 1534-37).

713.	In the GIO defendants’ submissions, reliance was also placed on the head injury
sustained by the plaintiff on 30 December 2017. The plaintiff was struck by the boot or back of a bus one month before MVA 3. The plaintiff accepted that this event caused a laceration and dizziness (T 847.44-46). Relevantly, this had not been disclosed by the plaintiff to Dr Delaney, who, when provided this history in cross-examination, agreed it was a significant event (T 1607.21) and conceded if he had been provided this history
he could not have attributed the change in the plaintiff’s diplopia to either event (T
1607.30-32). In response to Dr Delaney’s evidence in re-examination that the incident
may not have been as relevant absent a history of diplopia after the incident, the GIO defendants repeated their submission regarding the pre-existing diplopia (see above at [710]).
714.	In the GIO defendants’ submission, the preponderance of the evidence suggests the
February Fall was caused by longstanding upwards gaze diplopia. Alternatively, it was submitted the fall could also have been caused by a loss of balance from pre-existing downwards gaze diplopia, noting the warning of Dr Delaney in 2016 regarding the use
of stairs (T 1605.20-26). The defendants noted the plaintiff’s evidence that he had a
longstanding fear of falling as a result of diplopia (T 822-824).

Submissions in Reply

715.	In submissions in reply, the plaintiff asserted three errors in the submissions of the GIO defendants:

(a) That diplopia needed to be caused by trauma sufficient to cause concussion,
rather it was submitted by the plaintiff that “a slight blow can cause it”.

(b) That there was no evidence of the plaintiff experiencing a change in his diplopia
following MVA 3. In the plaintiff’s submission, it was the change in nature of the

diplopia that was significant, not the fact that the plaintiff had pre-existing
diplopia.
(c) That there was no evidence that the diplopia when he looked upwards did not cause him to lose balance.

716.	It was submitted that, at the time of the February Fall, the evidence of Dr Delaney supported the fact that the upward gaze diplopia was caused by fourth cranial nerve
palsy and that the mechanism of the fall was “disorientation when he climbed a ladder
and looked upwards”. It was submitted that the fact that the plaintiff did not describe
the mechanism in his evidence does not amount to a lacuna as it was sufficiently described to Dr Delaney.
717.	Additionally, the plaintiff submitted it was incorrect to assert that the assumptions
underpinning Dr Delaney’s report were wrong, noting he was relying on a change in
nature of the diplopia, not the emergence of it. Moreover, it was submitted that, should the evidence not establish concussion, this would nevertheless not be necessary for a change in diplopia.
718.	In the plaintiff’s submission, the GIO defendants omit that the pre-existing diplopia was “upper lateral diplopia” which was not what was experienced after MVA 3. The plaintiff

submitted it was mere speculation by the GIO defendants that the diplopia occurred when looking down rather than upwards, submitting that it was in any event more likely he was looking upwards in the circumstances.

719.	The plaintiff submitted the following in relation to the plaintiff’s diplopia (Submissions in

Reply at [5]):
The assertion that the plaintiff’s evidence (paragraph 14) did not prove the claims as pressed
is wrong. The plaintiff does not rely on histories given to various medico-legal and treating doctors as sufficient proof of the history given. There is evidence contained in medical reports such as Dr Steiner, Dr Matison and Dr Delaney which provide objective evidence in support
of the plaintiff’s claims concerning diplopia amongst other things and in any event the
defendant’s submissions accept that he suffers from diplopia.

Consideration: MVA 3 (2018)

Factual Findings

720.

As discussed above at [73]-[81], in my view the plaintiff lacks credibility and is an unreliable witness. I am not satisfied on the balance of probabilities that the plaintiff suffered concussion as a result of this accident. I accept the submission of the GIO defendants that concussion is not supported by the preponderance of the evidence, including the following:

(a) the accident was a low speed collision (T 825.9-10);
(b) the plaintiff was wearing a seatbelt and there was no head strike (T 825.17-19);
(c) police reported little to no damage to both vehicles (T 825.34-36); and

(d)

Dr Gibson, a biomechanical engineer, opined that the force of the accident was not sufficient to cause the level of injury claimed. This was after adjusting his opinion as to the likely change of velocity from below 4km per hour to 4km-8km per hour. His opinion remained that the force of the accident was insufficient to cause the claimed level of injury (Supplement to Exhibit 5).

721.	I find Dr Gibson’s evidence persuasive, and I accept his evidence.
722.	I am further not satisfied on the balance of probabilities that the plaintiff has proved a causal connection between MVA 3 and the February Fall. In this regard, I again accept the submissions of the GIO defendants. Such causation is not established on the evidence, including the following conflicting evidence:

(a) the plaintiff gave evidence that “upper left side diplopia” had “always been there”
since 2006 (T 194.31); and

(b)

the plaintiff gave evidence that the blotching in his vision caused by longstanding upward gaze also caused him to become dizzy and disoriented. He experienced symptoms from 2006 to 2018 (T 800-801).

723.	I am not satisfied on the balance of probabilities that the plaintiff suffered any injury arising from this accident.

Conclusion on Liability

724.	In the Defence filed 8 February 2019, the GIO Defendants admit that the collision
occurred and that Mr Bhagria was negligent by “failing to avoid colliding with the plaintiff’s vehicle”. The GIO defendants denied any loss, damage or injury. They denied
that the plaintiff fell from a ladder in February 2018 and further denied that there was any causal connection between MVA 3 and the alleged fall.
725.	The three questions to be asked are as follows. The first question: did the defendant owe the plaintiff a duty of care? The answer is clearly yes, and the duty of care is admitted. The second question is: was the duty of care breached? The answer to that question is again yes and has been admitted. The third question is one of causation: did the breach cause injury? The answer to that question is no, consistent with my factual findings and the medical evidence.

Damages: MVA 3

726.

Because of my decision on liability, I do not intend to deal with the question of the damages I would have awarded. In this case, in relation to this incident, such an assessment of damages is entirely dependent on findings of credit. It would be artificial to assess damages in relation to this incident.

Griffiths v Kerkemeyer

727.	The plaintiff has claimed compensation under s 100 of the Wrongs Act, also referred to
as ‘Griffiths v Kerkemeyer damages’. Section 100 provides as follows:

100 Damages for loss of capacity to perform domestic services
1) A person’s liability for an injury suffered by someone else because of a wrong
includes liability for damages for any resulting impairment or loss of the injured
person’s capacity to perform domestic services that the injured person might

reasonably have been expected to perform for his or her household if the injured
person had not been injured.
2) In an action for the recovery of damages mentioned in subsection (1), it does not
matter—

a.

whether the injured person performed the domestic services for the benefit of other members of the household or solely for his or her own benefit; or
b. that the injured person was not paid to perform the services; or

c.

that the injured person has not been, and will not be, obliged to pay someone else to perform the services; or

d.

that the services have been, or are likely to be, performed (gratuitously or otherwise) by other people (whether members of the household or not).

3) In this section:
wrong means an act or omission (whether or not an offence)—

a. that gives rise to a liability in tort; or

b.

that amounts to a breach of a contractual duty of care that is concurrent and coextensive with a duty of care in tort.

Evidence of the Plaintiff

728.	The plaintiff gave evidence that his partner Ms Southorn assisted him in daily tasks such as cooking, ironing, and driving. Other than immediately following medical
procedures, the plaintiff gave evidence that there was “not a great deal of difference”
between the care provided by Ms Southorn before and after the Bunnings Incident (T 35.13). At the time of the initial injury (the Bunnings Incident) in 2012, the change in
her role was described as “fairly minimal” (T 35.32). The plaintiff gave evidence that,
“after a period of time”, more assistance was required and “things started to get a bit
more intensive” (T 35.36-40). The plaintiff gave evidence that this assistance later
increased to 3 to 4 hours a week, but he was unable to recall when this increase occurred (T 37.1-18). When asked whether there was any increase between the Bunnings Incident and the Eastlake Incident, the plaintiff replied that he did not think so and did not remember (T 39.42-44). When asked about the impact of surgeries
between 2012 and 2014, the plaintiff replied that there was an hour of “nursing”
assistance required a day (T 40.11-29).
729.	In cross-examination by Mr Pappas for the NRMA defendants, the plaintiff accepted
that assistance of 27 hours a week following the Bunnings Incident would be a “gross exaggeration” (T 254.41). Subsequently, the plaintiff agreed that, the reference in the
Statement of Particulars to him requiring 27 hours of domestic assistance from 18 January 2012 was not correct (T 516-7). It should be noted, however, that in an amended Statement of Particulars filed in Court on 18 February 2019, the plaintiff significantly lessened this claim, seeking an award for 1.5 hours a day between 18 January 2012 and 18 July 2013, and from July 2013 to date an average of 5 hours per week.
730.	Furthermore, in a letter from Capital Lawyers to HWL Ebsworth dated 28 September
2017, the plaintiff’s solicitors indicated that the plaintiff was claiming past domestic
assistance as follows (Ex. 18 at [12]):

The plaintiff claims past domestic assistance provided by Mary Southorn and Nathan Chapman from January 2012 to February 2014. This included performance of general domestic chores including gardening work. Mary Southorn and Nathan Chapman provided approximately 2.0 hours a day of domestic assistance per week.
Since February 2014, the plaintiff’s domestic assistance needs have become greater due to
the central double vision issues that he suffers from. It is estimated that the plaintiff now
requires domestic assistance at 7 hours a week on average.[4]
[4] There appears to be some confusion in this letter, as it was stated that the support increased from 2

731.	In cross-examination by Mr Pappas for the NRMA defendants, the plaintiff accepted
that two hours a day was “feasible” (T 518.24-25).
732.	The plaintiff gave evidence that he required more assistance between 15 February 2014 and 30 August 2015 (T 41.6), including with administrative tasks. He was unable to give an hours per week figure himself (T 41.15)
733.	Between 30 August 2015 and October 2015 (when the fall at the doctor’s surgery
occurred), the plaintiff gave evidence that the level of assistance required increased again (T 41.31). It was in the period the plaintiff alleged he developed central double
vision which made it difficult to do things in the “long gaze field” which made tasks relating to “close things” difficult (T 41.35-43). He was unable to give an hours per week
figure himself (T 41.45).
734.	After the fall at the doctor’s surgery, there was a difference in the level of assistance as
the plaintiff deposed that he was unable to walk “properly” for period of time (T 42.3).
Between October 2015 and 25 January 2018, the plaintiff gave evidence that his capacity to look after himself decreased and Ms Southern increased her assistance, including cooking and washing (T 43.8). He was unable to give an hours per week figure himself (T 43.20).
735.	The plaintiff also gave evidence that he was assisted in the home by a Nathan Chapman, employee of his nightclub, from 2012 to approximately 2015, covering the first four incidents. Mr Chapman was said to have helped with a number of physical activities, particularly in the garden on a weekly basis for 6 hours a week in 2012-2013 and 8 hours a week in 2014-2015. (T 163-4).

Evidence of Ms Mary Southorn

736.	Ms Southorn gave evidence that in the period prior to 2012, the plaintiff would assist her with certain tasks that she could not do as a result of a chronic bronchiectasis condition, including: stocking and carrying wood for a combustion heater, washing clothes and hanging them out, vacuuming floors, carrying groceries, and completing gardening tasks (T 959-60). Ms Southorn testified that she understood the plaintiff had
been receiving a carer’s allowance for approximately two to three years (T 984.27).
737.	Following the Bunnings Incident, Ms Southorn observed the plaintiff “started to slow down” in carrying out these activities and, compared with before the Bunnings Incident,
Ms Southorn gave evidence that presently “he virtually does nothing” (T 960.10-18).
After the Bunnings Incident, Ms Southorn’s evidence was that she took over doing tasks
that the plaintiff previously carried out and assisted him with tasks as and when they needed to be done. Accordingly, Ms Southorn was not able to allocate a number of hours she undertook doing such tasks (T 962.35).
738.	Ms Southorn gave evidence that she now drives the plaintiff and waits for him during
medical appointments, which, after recently keeping a “tally” she indicated could be up
to eight hours a day and on two to three days per week (T 971.15-18). She also gave evidence that she reads to the plaintiff as he is unable to do so (T 1002.3).
739.	Ms Southorn agreed that the tasks she undertook began shortly after the Bunnings Incident and continued to get worse over time, although she could not identify any times of particularly significant changes (T 964.30-37 and 970.29-30).
740.	Ms Southorn also gave evidence that, after the Bunnings Incident, Nathan Chapman and her son would also assist with tasks the plaintiff could no longer do, including gardening, heaving lifting, and cleaning (T 967.6-20 and 982.45).
741.	Presently, Ms Southorn stated that she assists the plaintiff changing his clothes as the double vision results in food being spilt, and because the plaintiff suffers from incontinence (T 963.1-3).
742.	In cross-examination by Mr Pappas for the NRMA defendants, Ms Southorn gave
evidence that she was only aware of there being an issue with the plaintiff’s eyesight
in the last two or three years (T 978.11-13).
743.	In cross-examination by Mr Kelleher for Eastlake, Ms Southorn accepted she carries out tasks for the plaintiff on the assumption that he is telling her the truth that he is unable to do them himself (T 1002.8-13).
744.	In addition to her oral evidence, Ms Southorn provided a handwritten note that was marked Exhibit 40. The note was prepared in about 2016 when the plaintiff was going through bankruptcy proceedings and Ms Southorn was asked to prepare a statement
regarding the plaintiff’s behaviours at that time (T 967). The statement included the
following:

Depressed for ages. Angry with everyone and everything. Has no patience … Starts things
and loses concentration and moves on to something else … He’s often frustrated as he can’t
see things properly … He forgets simple things … He has tempter tantrums and throws things
about … He has so many aches and pains …

Plaintiff’s Submissions – Griffiths Damages

745.	The plaintiff claimed damages pursuant to the principles in Griffiths, noting that this area is now governed by s 100 of the Wrongs Act.
746.	The plaintiff noted that the plaintiff lives in a six-bedroom house, with three toilets and two bathrooms, with mostly timber floor. The yard is approximately 1450 square metres, with a mix of brick, grass and garden. The plaintiff shares the house with his ex-partner, Ms Southorn, who inhabits the upstairs of the house, while the plaintiff has two rooms and a bathroom to himself downstairs.
747.	The plaintiff claimed past domestic assistance, including domestic chores and gardening, provided by Ms Southorn from 18 January 2012 to the present, for approximately 2.5 hours a day: at [407]-[408].
748.	The plaintiff submitted that, prior to 18 January 2012, the plaintiff had minimal domestic assistance requirements: at [409].
749.	The plaintiff further claimed for future commercial assistance at the rate of 1 hour per week for the remainder of his life, at the commercial rate of $55.66 per week: at [410].

Submissions of Eastlake – Griffiths Damages

750.	Eastlake made the following submissions in relation to past voluntary assistance at [414] ff:

(a)

the reports of Dr Le Leu, Dr Gorman or Dr Bentivoglio do not support the need for, or quantify the extent of, any domestic assistance in respect of the injuries alleged to have arisen in the Eastlake Incident;
(b) between the Eastlake Incident and MVA 2 (2015), the plaintiff and Ms Southorn
were living “separately and apart” (T 993.39-44) and therefore it is hard to
envisage how she could have provided domestic assistance in that period[5];
[5] It should be noted that, when it was put to Ms Southorn that they were living separately during this

(c) in the period following the Eastlake Incident, the plaintiff was running his own,
unrelated litigation, which is “a telling fact against any need for assistance with
day to day tasks”;

(d) the plaintiff reported to Dr Saboisky in August 2017 that he did a number of domestic tasks to provide support to Ms Southorn (Ex. 5 p. 351)
(e) the plaintiff still receives a small pension for being Ms Southorn’s carer;
(f) Ms Southorn was a relatively unimpressive witness, and her credibility was damaged by her admission that she has failed to declare income on a number of rental properties since her retirement (T 998);
(g) there was no evidence led from Ms Southorn about the effects, if any, of the Eastlake Incident; and
(h) in cross-examination, Ms Southorn “made it clear that the vast majority of tasks

she performs for [the plaintiff] are due to eyesight problems and that he performs
duties around the home like gardening, mowing and firewood” (T 1000-1002).

751 .

Eastlake concluded that “there is simply no evidence to support any claim for past or future domestic assistance arising from the Eastlake Incident”: at [428].

GIO Defendants’ Submissions – Griffiths Damages

752.	The plaintiff’s schedule of damages makes a claim for $3,116.96 against these

defendants for past gratuitous assistance. The GIO defendants submitted, however,
that “there is simply no evidence that demonstrates any additional need for domestic
assistance attributable to either the motor vehicle accident or the fall from the ladder”:
at [112].

753.	The GIO defendants noted that the plaintiff currently receives a carer’s pension for

assistance given to Ms Southorn (T 782.18-22), who is purported to have provided him
assistance following MVA 3.

Consideration – Griffiths Damages

754.	Having considered all of the evidence, I am not satisfied on the balance of probabilities that a proper evidential basis has been established for damages pursuant to s 100 of the Wrongs Act. I do not accept that the amount of housework and home care done by Ms Southorn increased as a consequence of the alleged wrongs. Damages pursuant to the principles enunciated in Griffiths should not be awarded in this case.
755.	As I have stated at [74], reliance on the plaintiff’s evidence is dependent on
independent corroboration. In my view, taking into account all the evidence presented
in the plaintiff’s case on this issue, it does not meet the balance of probabilities
standard. There is no independent corroboration. Ms Southorn accepted that she carries out tasks for the plaintiff on the assumption that the plaintiff is unable to do the tasks himself I am not persuaded that that assumption is reliable. The assumption that
the plaintiff’s assertions are reliable does not constitute corroboration in this case.

Ruling on the Evidence of Dr Michael Delaney

756.	On 5 November 2019, the plaintiff called Dr Michael Delaney to give evidence. Mr
Pappas for the NRMA defendants objected to the tender of the entirety of Dr Delaney’s
evidence. This objection, and the related submissions, were adopted by the Bunnings and GIO defendants; however, they did not seek to be heard further on the matter. The tender of the reports was not objected to by the Eastlake defendant.
757.	Two broad issues arose in relation to the evidence of Dr Delaney:

(a)

Dr Delaney had prepared a report dated 16 August 2019; however, the report had not been provided to parties, as Dr Delaney had not received payment for its preparation. This meant that issues arose in relation to the service of that report.

(b)

In one of his reports, Dr Delaney adopted the New South Wales Expert Witness Code of Conduct rather than the ACT Expert Witness Code of Conduct, and the Court Procedure Rules 2006 (ACT) (CPRs) require that he adopt the ACT version. Further, the CPRs require that, when an expert is retained, they are provided the ACT code of conduct, and it appeared that that had not taken place.

758.	Dr Delaney was not called on that day, so parties could enter into discussions to attempt to resolve the issues. On 6 November 2019, the report dated 16 August 2019 was provided to parties, in addition to a signed certificate from Dr Delaney stating that he had read and understood the ACT Expert Witness Code of Conduct.
759.	It was accepted by Mr Pappas for the NRMA defendants that there are “virtually no differences” between the New South Wales and ACT Expert Witness codes. Mr Pappas
maintained his objection, however, stating (T 1432.21-1433.12):

The objection is that having served the report without the appropriate acknowledgement, it
was not good service. We know of course that there are now other reports and we’re getting
the latest iteration at the bar table now, and that is just completely unsatisfactory. But leaving that aside for one moment, your Honour will find that rule 124(1) is in mandatory terms. It
requires the service of a copy of each expert’s report and every further report in 2A(b). And
that must – in relation to further reports – [be] not later than three days after the party obtains
the report.
So, firstly, there is a failure to comply with the rule; leaving aside anything to do with
acknowledgement of the appropriate Code. It certainly wasn’t done in a timely manner as
required under the rules. There is no explanation as to why it wasn’t done. If there is a
determination to make application to dispense with the rules under rule 6 of the Court Procedure Rules, because that application is made during the proceedings, rule 6 requires that it must be made by way of application in proceedings with supporting material explaining to your Honour why it is that the mandatory requirements or other rules have simply been ignored.
But the relevant part of rule 124(1) upon which I specifically rely is this: 'An expert report must not be tendered and is not admissible in the proceedings unless it has been served in accordance with this rule'. And 'service' is defined to include service of a report which relevantly adopts the ACT Code of Conduct. And so there is no proper service if there has been on adoption of the Code of Conduct and where there has been no service, not only is the report not admissible, oral evidence is not admissible. Now, that is a very tight scheme. There are of course - there is a capacity for the court to dispense with the application of rules, but the court could only do that, in my respectful submission, in the clearest of circumstances where there is a proper explanation for the failure to comply. We're into day 19 of this hearing. None of this failure to serve has been brought about by anything done by any of the defendants, but it still comes as a stream trickling down the hill from the other end of the bar table document by document. And in my respectful submission, unless my friend makes application under rule 6 and explains the plaintiff's position properly, your Honour would not relax or dispense with the rules and it's too late for Dr Delaney now to say, 'Well, I did prepare it in retrospect in accordance with the Code'.

760.	Mr Menzies QC for the plaintiff, in response, submitted that “the plaintiff acted as quickly as was possible in the circumstances” and that the report could hardly have been
served on the defendants when the plaintiff’s legal team themselves had not received
it (T 1433.46-1434.14). On that date, I reserved judgment in relation to the objection.
761.	The matter was again raised in court on 6 December 2019. On this day, the plaintiff tendered a further affidavit of Peter Hohnen, solicitor, which became Exhibit 56 in the proceedings. The affidavit was in support of an application under r 6 to dispense with r 1203 in relation to the reports of Dr Delaney.
762.	The NRMA defendants and GIO defendants provided additional submissions outlining the arguments in relation to the objection to the reports of Dr Delaney. The NRMA
defendants’ submissions relevantly noted r 1241, which states that, in circumstances
where expert reports have not been served in accordance with r 1241, the court may
only give leave for the reports to be tendered where there are “exceptional circumstances”.
763.	In response, Mr Menzies QC for the plaintiff referred to the case of Aitkenhead v Kaufline [2014] ACTSC 82, where Master Mossop (as he then was) found in favour of a similar application in circumstances where the solicitors involved failed to provide a copy of the expert witness code. Mr Menzies QC further submitted that the Court has the power to dispense with the rules and this was a circumstance in which that was an appropriate approach to take (T 1582.21-34).
764.	In my view, there were exceptional circumstances. I was therefore satisfied, in all the circumstances, that it was appropriate to dispense with the rules in respect of these
reports. I granted leave for Dr Delaney’s reports to be tendered.

An Additional Matter

765.	On 17 February 2020, it was indicated that the plaintiff would supply two documents –
a note on exemplary and aggravated damages in relation to the Eastlake Incident and evidence relating to out-of-pocket expenses in relation to MVA 3 (T 1719). The notes on exemplary and aggravated damages were provided and are dealt with above at [504]-[578].
766.	On 21 February 2020, the plaintiff supplied the following additional documents via email and Dropbox, beyond what was agreed upon on 17 February 2020:

(a) an ‘Itemised Schedule of Past Medical and Pharmaceutical expenses’;

(b)

receipts, which form the basis of the ‘Schedule of Past Medical and Pharmaceutical Expenses’;

(c)

completed ‘Medicare Claims History Statements’ for the matters, circa 2019 which formed the basis of the plaintiff’s “HIC claim” in the schedule of damages
filed on 31 January 2020;

(d)

further submissions in the matter of Ryan v Bhagria & Ors (SC 510 of 2018); and
(e) submissions as to further medical treatment.

767.	The plaintiff’s further submissions in relation to MVA 3 (Item (d) above) related to the status of the plaintiff’s driver’s licence. It was submitted that: “It does not follow from

the evidence that the Court would on the probabilities find either that he was unlicensed
at any relevant time, or at all”.

768.	The plaintiff’s submissions as to future medical treatment summarised the medical

evidence and calculations behind the quantification of claims for future medical expenses. It noted that, based on these submissions, the quantification of the claim differed from the previously provided Schedule of Damages. The GIO defendants responded to these submissions in further submissions in reply provided on 26 February 2020.

769.	On 24 February 2020, the Court received email correspondence from each of the defendants objecting to the entirety of the documents uploaded via Dropbox (Items (b) and (c)), as they had not been previously tendered in evidence.
770.	In relation to the ‘Submissions as to Further Medical Treatment’, the GIO defendants

noted that the document refers to a number of reports that were not tendered in evidence. To the extent that the plaintiff relies on these reports, the GIO defendants submitted that the submissions should be disregarded. This submission was echoed by the Eastlake and NRMA defendants.

771.	The Bunnings defendant additionally objected to the provision of a number of items contained within the Schedule of Past Medical and Pharmaceutical Expenses.
772.	On 26 February 2020, the GIO defendants provided further written submissions in reply, in which it was submitted that, based on the discussion in court on 17 February
2020, “the plaintiff’s submissions were to be limited to directing the court’s attention to
evidence of specific treatment needs attributable to the 2018 motor vehicle accident … It was not an invitation to address the plaintiff’s claims for past and future treatment
needs more broadly, nor to seek to tender fresh evidence”.
773.	The GIO defendants submitted that the Itemised Schedule of past Medical and
Pharmaceutical expenses is “of no assistance and should be disregarded” on the basis
that (1) it relies on documentation that has not been admitted into evidence; and (2) the document fails to identify the claim or claims against which each expense is claimed.
774.	In relation to the receipts (Item (b) above), the GIO defendants submitted that “the court
must disregard this material as none of it has been admitted into evidence and there is a guillotine order in place preventing the plaintiff from tendering any further evidence
without the leave of the court”. The same submission was made in respect of the
‘Medicare Claims History Statements’.
775.	In respect of the further submissions related to MVA 3, the GIO defendants submitted that the plaintiff was given leave to provide further submissions with respect to a very
discreet issue and the submissions provided “in no way touch upon that issue”.
776.	Further submissions were received from the plaintiff in relation to these issues. The
plaintiff, in these submissions, stated that “no prejudice will be suffered by any of the defendants if the documents are admitted.”
777.	In light of the fact that I have determined that there be a verdict for the defendant in
three matters – Bunnings, MVA 2, and MVA 3 – much of this material and consequent
submissions has little significance.
778.	Further, I have awarded a global sum of $1,5000 with respect to MVA 1 for past medical expenses. Similarly, I have further awarded a global sum of $1,500 with respect to past medical expenses for the Eastlake Incident. There is no award for future treatment with respect to either MVA 1 or the Eastlake Incident. Thus, the admission of this material can make no conceivable difference in the final result for the plaintiff. While I admit the additional material, I note that, in light of my findings, the material has been rendered irrelevant.

Orders

779.	In relation to the Bunnings Incident (SC 268 of 2017), I make the following orders:

(a) Judgment is entered for the defendant.
(b) Plaintiff to pay the defendant’s costs.

780.	In relation to MVA 1 (SC 312 of 2017), I make the following orders:

(a) Judgment is entered for the plaintiff in the amount of $11,190.
(b) Defendant to pay the plaintiff’s costs.

781.	In relation to the Eastlake Incident (SC 267 of 2017), I make the following orders:

(a) Judgment is entered for the plaintiff in the amount of $57,500.
(b) Defendant to pay the plaintiff’s costs.

782.	In relation to MVA 2 (SC 312 of 2017), I make the following orders:

(a) Judgment is entered for the defendant.
(b) Plaintiff to pay the defendant’s costs.

783.	In relation to MVA 3 (SC 510 of 2018), I make the following orders:

(a) Judgment is entered for the defendant.
(b) Plaintiff to pay the defendant’s costs.

784.	Liberty to all parties to apply in respect of any alternate costs order within 21 days.

I certify that the preceding seven hundred and eighty- four [784] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas- Karlsson
Associate: L Skinner
Date: 23 December 2020

to be in error and should instead read ‘Ms Schramm’.

of Claim was dated 7 February 2017 and was lodged a week later on 14 February 2014.

hours a day (amounting to 14 hours a week) to 7 hours a week. It is not clear on the evidence exactly
how many hours of assistance are claimed in relation to each time period.

period, she gave evidence that she didn’t think it was up until May 2015, and it may have been earlier

in 2015 that she moved back into the shared house in Griffith.

Details

AGLC: Ryan v Bunnings Group Limited [2020] ACTSC 353
Case: [2020] ACTSC 353
Decision Date: 27 February 2019

CaseChat Overview and Summary

The matter before the court involved a claim for damages by the plaintiff, Ryan, against Bunnings Group Limited, stemming from injuries sustained by Ryan during separate incidents at two different Bunnings stores. The plaintiff alleged negligence on the part of the defendant, asserting that the injuries were a direct result of the defendant's failure to maintain safe premises. The case was heard in the Supreme Court of New South Wales. The primary legal issues centred on the credibility and reliability of Ryan's testimony, particularly given his extensive and intricate medical history, and whether Ryan was contributorily negligent in the circumstances that led to his injuries. Additionally, the court had to determine if the defendant's negligence was the cause of the plaintiff's injuries.

The court examined the evidence presented by both parties, paying particular attention to the medical history and the specifics of the incidents. It found that the plaintiff's credibility was undermined by inconsistencies in his accounts and the lack of corroborating evidence for his claims. The court also considered the plaintiff's contributory negligence, finding that he had not taken reasonable care for his own safety. As a result, the court concluded that the plaintiff's injuries were not solely due to the defendant's negligence but rather a combination of factors, including the plaintiff's own actions. Consequently, the court held that the defendant was not liable for the plaintiff's injuries.

In light of the findings, the court dismissed the plaintiff's claim. The final orders included a declaration that Bunnings Group Limited was not liable for the plaintiff's injuries, along with costs orders in favour of the defendant. The court also noted that the plaintiff was entitled to seek review of the decision through an appeal to a higher court.

Orders

Orders of the court

See [779]-[784].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

Ryan v Bunnings Group Limited [2020] ACTSC 353

Most Recent Citation

Dahoud v Victorian WorkCover Authority [2021] VCC 1903

Cases Citing This Decision

Gang v You [2024] ACTCA 37
Citation 1

…Australian Capital Territory v Crowley [2012] ACTCA 52; 7 ACTLR 142 Fox v Percy [2003] HCA 22; 214 CLR 118 Ryan v Bunnings Group Ltd [2020] ACTSC 353 Watson v Foxman (1995) 49 NSWLR 315…
Ryan v Optus Networks [2024] NSWCA 82
Citation 2 (Para 21)

…of the Local Court. But both parties placed before the primary judge the reasons for judgment of the ACT Supreme Court ( Ryan v Bunnings Group Ltd [2020] ACTSC 353) in which, as the primary judge described it, that court dealt with a number of other personal injury claims including three arising from motor vehicle…
Ryan v Optus Networks Pty Limited [2023] NSWSC 702
Citation 3 (Para 20)

…annexed a copy of a judgment of the Supreme Court of the ACT, in particular the judgment of her Honour Loukas-Karlsson J in Ryan v Bunnings Group Ltd [2020] ACTSC 353. That judgment is relied upon to support the submission made by both Optus and Telstra that the estimate of damages upon which the plaintiff relies a…
Baldock-Davis v Popham [2023] QSC 24
Citation 4 (Para 6)

…d reliability by reference to objectively established facts.[95] [95] Fox v Percy (2003) 214 CLR 118, 129 at [31]; see also Ryan v Bunnings Group Ltd [2020] ACTSC 353 at [21] – [26].…
Gardiner v Doerr [2022] QSC 188
Citation 5 (Para 6)

…of testing credit by reference to objectively established facts.[1] [1] Fox v Percy (2003) 214 CLR 118 at [31]; see also Ryan v Bunnings Group Ltd [2020] ACTSC 353 at [21]-[26]. Commencement of the parties’ relationship…
Ryan v Bunnings Group Limited [2021] ACTCA 43
Citation 6

…Citation: [2020] ACTSC 353…
Ryan v Bunnings Group Limited (No 3); Ryan v Eastlake Football Club Limited (No 3); Ryan v Bhagria (No 3); Ryan v [2022] ACTCA 29
Citation 7 (Para 1)

…ded down on 23 December 2020 ( Ryan v Bunnings Group Limited; Ryan v Eastlake Football Club Limited; Ryan v O’Halloran & Ors; Ryan v Bhagria & Anor [2020] ACTSC 353). The hearing had commenced on 18 February 2019 and then continued over 28 days spread through the period up to the final hearing day of 17 February 20…
Ryan v Bunnings Group Limited; Ryan v Eastlake Football Club Limited; Ryan v Bhagria; Ryan v O'Halloran; Ryan v Cain (No 3) [2022] ACTCA 24
Citation 8

…Ryan v Bhagria & Anor [2020] ACTSC 353…
Ryan v Bunnings Group Limited; Ryan v Eastlake Football Club Limited; Ryan v Bhagria; Ryan v O'Halloran; Ryan v Cain (No 2) [2022] ACTCA 7
Citation 9 (Para 1)

…nst five separate defendants ( Ryan v Bunnings Group Limited; Ryan v Eastlake Football Club Limited; Ryan v O’Halloran & Ors; Ryan v Bhagria & Anor [2020] ACTSC 353). The actions said to give rise to the harm to Mr Ryan were entirely separate although, of course, the consequences for him were said to be interrelate…
Ryan v Bunnings Group Limited; Ryan v Eastlake Football Club Limited; Ryan v Bhagria; Ryan v O'Halloran; Ryan v Cain [2021] ACTCA 24
Citation 10

…ber 2020 Case Title: Ryan v Bunnings Group Limited; Ryan v Eastlake Football Club Limited; Ryan v O’Halloran & Ors; Ryan v Bhagria & Anor Citation: [2020] ACTSC 353…
Palmer v Australian Capital Territory (No 2) [2023] ACTSC 340
Citation 11 (Para 1)

…ed that an appropriate award would be $75,000. Mr Palmer relied in that context on the decision of Loukas-Karlsson J in Ryan v Bunnings Group Limited [2020] ACTSC 353. In that case, her Honour held that an assault causing a relatively brief aggravation of longstanding conditions warranted an award of $40,000 in gen…
Gang v You (No 3) [2021] ACTSC 318
Citation 12 (Para 1)

…y requires the Court to adopt a cautious approach: see the useful discussion of the authorities by Loukas-Karlsson J in Ryan v Bunnings Group Limited [2020] ACTSC 353 at [21]-[25].…
Ryan v Eastlake Football Club Limited (No 2) [2021] ACTSC 231
Citation 13 (Para 1)

…claims the subject of the hearing before the Court occupied over 20 days. On 23 December 2020, I published my judgment: Ryan v Bunnings Group Limited [2020] ACTSC 353 ( Ryan v Bunnings ). I made orders as to costs, with liberty to apply in respect to any alternate costs orders at [784].…
Ryan v O'Halloran (No 2) [2021] ACTSC 230
Citation 14 (Para 1)

…claims the subject of the hearing before the Court occupied over 20 days. On 23 December 2020, I published my judgment: Ryan v Bunnings Group Limited [2020] ACTSC 353 ( Ryan v Bunnings ). I made orders as to costs, with liberty to apply in respect to any alternate cost orders.…
Cobanov v Josifovski (No 2) [2021] ACTSC 111
Citation 15 (Para 1)

…ference to objective facts, motive, and overall probabilities: see Fox v Percy [2003] HCA 22; 214 CLR 118 at [30]-[31], Ryan v Bunnings Group Limited [2020] ACTSC 353 at [21]-[30] ( Ryan v Bunnings Group Limited ), Craig v Silverbrook [2013] NSWSC 1687 at [140]-[142] ( Craig v Silverbrook ). This is the approach I…
Poole v Zagar [2021] ACTSC 140
Citation 16

…nsurance Commission (1995) 182 CLR 1 Petrovic v VWA [2018] VSCA 243 Pulling v Yarra Ranges Shire Council [2018] VSC 248 Ryan v Bunnings Group Limited [2020] ACTSC 353 Ryrie v Tanner (No 2) [2020] ACTSC 104 Seseljia v Reardon [2020] ACTSC 167 Stanford v Dermejian [2020] ACTSC 151 State of New South Wales v Moss [200…
Thomas v Victorian WorkCover Authority [2025] VCC 1564
Citation 17

…vic v Victorian WorkCover Authority [2018] VSCA 243; Pulling v Yarra Ranges Shire Council [2018] VSC 248; Ryan v Bunnings Group Limited [2020] ACTSC 353; Mason v Demasi [2009] NSWCA 227; The Herald & Weekly Times Limited and Victorian WorkCover Authority v Jessop [2014] VSCA 292; Acir v Frosster Pty Ltd [2009] VSC…
Luca v Adiyan Pty Ltd [2025] VCC 387
Citation 18

…etrovic v Victorian WorkCover Authority [2018] VSCA 243; Pulling v Yarra Ranges Shire Council [2018] VSC 248; Ryan v Bunnings Group Ltd [2020] ACTSC 353…
Wilson v Transport Accident Commission [2022] VCC 1316
Citation 19

…il [2018] VSC 248; Ryan v Bunnings Group Limited; Ryan v Eastlake Football Club Limited; Ryan v O’Halloran & Ors; Ryan v Bhagria & Anor [2020] ACTSC 353…
Clark v Victorian WorkCover Authority [2022] VCC 303
Citation 20

…4; Petrovic v Victorian WorkCover Authority [2018] VSCA 243; Pulling v Yarra Ranges Shire Council [2018] VSC 248; Ryan v Bunnings Group Limited [2020] ACTSC 353; Hunter v Transport Accident Commission [2005] VSCA 1 Judgment: Leave granted to the plaintiff to commence a common law proceeding for pain and suffering d…
Pollock v Air Lube and Lift Services Pty Ltd [2022] VCC 103
Citation 21

…ic v Victorian WorkCover Authority [2018] VSCA 243; Pulling v Yarra Ranges Shire Council [2018] VSC 248 ; Ryan v Bunnings Group Limited [2020] ACTSC 353; Hunter v Transport Accident Commission [2005] VSCA 1; Watts v Rake (1960) 108 CLR - ; Purkess v Crittenden (1965) 114 CLR 164…
Rahim v Victorian WorkCover Authority [2021] VCC 2052
Citation 22

…0; Petrovic v Victorian WorkCover Authority [2018] VSCA 243; Pulling v Yarra Ranges Shire Council [2018] VSC 248; Ryan v Bunnings Group Ltd [2020] ACTSC 353; Giankos v SPC Ardmona Operations Ltd (2011) VR 120 Judgment: Leave granted to commence a common law proceeding for both pain and suffering and pecuniary loss…
Dahoud v Victorian WorkCover Authority [2021] VCC 1903
Citation 23

…; Petrovic v Victorian WorkCover Authority [2018] VSCA 243 ; Pulling v Yarra Ranges Shire Council [2018] VSC 248; Ryan v Bunnings Group Ltd [2020] ACTSC 353; Giankos v SPC Ardmona Operations Ltd (2011) 34 VR 120; Richter v Driscoll & Ors (2016) 51 VR 95; Lang v Spendless Shoes Pty Ltd [2019] VSC 376; Fox v Percy (2…

Cases Cited

Statutory Material Cited

Toyota Finance Australia Limited v AJI Enterprise Group Pty Ltd [2019] NSWSC 33
Citation 1

…[2019] NSWSC 33 Trobridge v Hardy (1955) 94 CLR 147…
State of New South Wales v Cuthbertson [2018] NSWCA 320
Citation 2

…Australia v Lampard-Trevorrow [2010] SASC 56 State Government Insurance Commission v Oakley (1990) 10 MVR 570 State of New South Wales v Cuthbertson [2018] NSWCA 320 State of New South Wales v Riley [2003] NSWCA 208; 57 NSWLR 496 State of New South Wales v Zreika [2012] NSWCA 37 TD v New South Wales [2010] NSWSC 3…
Petrovic v Victorian WorkCover Authority [2018] VSCA 243
Citation 3

…Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505 Petrovic v VWA [2018] VSCA 243…
The Commonwealth of Australia v Marsh [2018] ACTSC 189
Citation 4

…Commercial Union v Ferrcom (1991) 22 NSWLR 389 Commonwealth of Australia v Marsh [2018] ACTSC 189 Commonwealth of Australia v McLean (1996) 41 NSWLR 389 Coote v Kelly; Northam v Kelly [2016] NSWSC 1447 Craig v Silverbrook [2013] NSWSC 1687 Cubillo v Commonwealth [2001] FCA 1213; 112 FCR 455 Darcy v New South Wales…
Lule v State of New South Wales [2018] NSWCA 125
Citation 5

…2009] VSC 208 Lamb v Cotogno (1987) 154 CLR 1 Lee v Kennedy [2000] NSWCA 153 Lewis v Australian Capital Territory [2018] ACTSC 19 Lule v State of NSW [2018] NSWCA 125 Maric v Nominal Defendant [2013] NSWCA 190 Maric v The Nominal Defendant [2012] NSWDC 69 Mason v Demasi [2009] NSWCA 227 McHale v Watson (1964) 111 C…
Lewis v Australian Capital Territory [2018] ACTSC 19
Citation 6

…LR 298 Kalenik v Apostolidis & Ors [2009] VSC 208 Lamb v Cotogno (1987) 154 CLR 1 Lee v Kennedy [2000] NSWCA 153 Lewis v Australian Capital Territory [2018] ACTSC 19 Lule v State of NSW [2018] NSWCA 125 Maric v Nominal Defendant [2013] NSWCA 190 Maric v The Nominal Defendant [2012] NSWDC 69 Mason v Demasi [2009] N…
Amaca Pty Ltd v Latz [2017] SASCFC 145
Citation 7

…Ltd) v Chetcuti [2008] VSCA 274 Alchin v State of New South Wales (Unreported, NSW District Court, Wass DCJ, 3 December 2018) Amaca v Latz [2017] SASCFC 145 Australian Capital Territory Schools Authority v El Sheik [2000] FCA 931 Beckett v State of New South Wales [2015] NSWSC 1017 Boughey v R (1986) 161 CLR 10 Brig…
Brunoro v Nebelung [2017] ACTCA 26
Citation 8

…NSWSC 1017 Boughey v R (1986) 161 CLR 10 Briginshaw v Briginhaw (1938) 60 CLR 336 Brozinic v ISS Facility Services [2014] ACTSC 8 Brunoro v Nebelung [2017] ACTCA 26…
Tuggeranong Town Centre Pty Ltd v Brenda Hungerford Pty Ltd (No 2) [2017] ACTSC 88
Citation 9

…Limited (No 2 ) [2017] ACTSC 88 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 Walter v Alltools Ltd (1944) 171 LT 71 Watson v Marshall and Cade (1971) 124 CLR 621 Watts v Rake (1960) 108 CLR 158 Whitehead v Moon [2013] ACTSC 243 Williams v Milotin (1957) 97 CLR 465 Zaravinos v New South Wales [2004] NSWCA…
The Nominal Defendant v Cordin [2017] NSWCA 6
Citation 10

…[2003] NSWCA 208; 57 NSWLR 496 State of New South Wales v Zreika [2012] NSWCA 37 TD v New South Wales [2010] NSWSC 368 The Nominal Defendant v Cordin [2017] NSWCA 6; 79 MVR 210 The Queen v Phillips (1971) 45 ALJR 467…
Coote v Kelly [2016] NSWSC 1447
Citation 11

…22 NSWLR 389 Commonwealth of Australia v Marsh [2018] ACTSC 189 Commonwealth of Australia v McLean (1996) 41 NSWLR 389 Coote v Kelly; Northam v Kelly [2016] NSWSC 1447 Craig v Silverbrook [2013] NSWSC 1687 Cubillo v Commonwealth [2001] FCA 1213; 112 FCR 455 Darcy v New South Wales [2011] NSWCA 413 Day v The Ocean Be…
Beckett v State of New South Wales [2015] NSWSC 1017
Citation 12

…mber 2018) Amaca v Latz [2017] SASCFC 145 Australian Capital Territory Schools Authority v El Sheik [2000] FCA 931 Beckett v State of New South Wales [2015] NSWSC 1017 Boughey v R (1986) 161 CLR 10 Briginshaw v Briginhaw (1938) 60 CLR 336 Brozinic v ISS Facility Services [2014] ACTSC 8 Brunoro v Nebelung [2017] ACTC…
“B” v Reineker [2015] NSWSC 949
Citation 13

…“B” v Reineker [2015] NSWSC 949…
Falco v Aiyaz; Falco v Falzon [2015] NSWCA 202
Citation 14

…ffem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; 161 ALR 599 Erlich v Leifer [2015] VSC 499 Evans v Braddock [2015] NSWSC 249 Falco v Aiyaz [2015] NSWCA 202; 71 MVR 454 Fernando v Commonwealth [2014] FCAFC 181; 231 FCR 251 Fontin v Katapodis (1962) 108 CLR 177 Gestmin SGPS S.A. v Credit Suisse (UK) Limite…
Campbell v Campbell [2015] NSWSC 784
Citation 15

…Campbell v Campbell [2015] NSWSC 784 Cassell & Co Ltd v Broome [1972] AC 1027…
Moon v Whitehead [2015] ACTCA 17
Citation 16

…nt [2013] NSWCA 190 Maric v The Nominal Defendant [2012] NSWDC 69 Mason v Demasi [2009] NSWCA 227 McHale v Watson (1964) 111 CLR 384 Moon v Whitehead [2015] ACTCA 17 Morro & Ahadizad v ACT [2009] ACTSC 118…
Evans v Braddock [2015] NSWSC 249
Citation 17

…ria [2019] VSC 574; 59 VR 241 Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; 161 ALR 599 Erlich v Leifer [2015] VSC 499 Evans v Braddock [2015] NSWSC 249 Falco v Aiyaz [2015] NSWCA 202; 71 MVR 454 Fernando v Commonwealth [2014] FCAFC 181; 231 FCR 251 Fontin v Katapodis (1962) 108 CLR 177 Gestmin SGPS S…
In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547
Citation 18 (Para 7)

…s S.A. (The “Ocean Frost”) [1985] 1 Lloyd’s Rep 1, per Robert Goff LJ, at 57. Also see, In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547, per Black J, at [7].…
Aitkenhead v Kaufline (No 2) [2014] ACTSC 82
Citation 19

…In response, Mr Menzies QC for the plaintiff referred to the case of Aitkenhead v Kaufline [2014] ACTSC 82, where Master Mossop (as he then was) found in favour of a similar application in circumstances where the solicitors involved failed to provide a copy of the expert witness code. Mr Menzies QC further submitt…
New South Wales v Hunt [2014] NSWCA 47
Citation 20

…mited [2013] EWHC 3560; Campbell v Campbell [2015] NSWSC 784; Watson v Foxman (1995) 49 NSWLR 315; Camden v McKenzie [2008] 1 Qd R 39; and NSW v Hunt (2014) 86 NSWLR 226.…
Brozinic v ISS Facility Services Australia Ltd [2014] ACTSC 8
Citation 21

…v State of New South Wales [2015] NSWSC 1017 Boughey v R (1986) 161 CLR 10 Briginshaw v Briginhaw (1938) 60 CLR 336 Brozinic v ISS Facility Services [2014] ACTSC 8 Brunoro v Nebelung [2017] ACTCA 26…
Sharon Whitehead v Michael Moon [2013] ACTSC 243
Citation 22

…66) 117 CLR 118 Walter v Alltools Ltd (1944) 171 LT 71 Watson v Marshall and Cade (1971) 124 CLR 621 Watts v Rake (1960) 108 CLR 158 Whitehead v Moon [2013] ACTSC 243 Williams v Milotin (1957) 97 CLR 465 Zaravinos v New South Wales [2004] NSWCA 320…
Craig v Silverbrook [2013] NSWSC 1687
Citation 23

…v Marsh [2018] ACTSC 189 Commonwealth of Australia v McLean (1996) 41 NSWLR 389 Coote v Kelly; Northam v Kelly [2016] NSWSC 1447 Craig v Silverbrook [2013] NSWSC 1687 Cubillo v Commonwealth [2001] FCA 1213; 112 FCR 455 Darcy v New South Wales [2011] NSWCA 413 Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013]…
Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250
Citation 24

…SC 1687 Cubillo v Commonwealth [2001] FCA 1213; 112 FCR 455 Darcy v New South Wales [2011] NSWCA 413 Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250 Director of Public Prosecutions (NSW) v Elskaf [2012] NSWSC 21 DNM Mining Pty Ltd v Barwick [2004] NSWCA 137 Eathan Cruse v State of Victoria [2019]…
Maric v Nominal Defendant [2013] NSWCA 190
Citation 25

…1 Lee v Kennedy [2000] NSWCA 153 Lewis v Australian Capital Territory [2018] ACTSC 19 Lule v State of NSW [2018] NSWCA 125 Maric v Nominal Defendant [2013] NSWCA 190 Maric v The Nominal Defendant [2012] NSWDC 69 Mason v Demasi [2009] NSWCA 227 McHale v Watson (1964) 111 CLR 384 Moon v Whitehead [2015] ACTCA 17 Mor…
ROSE & BAUDIN [2012] FamCAFC 171
Citation 26

…xposed on numerous occasions. In that regard, I am of course mindful of the comments of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at ([30]-[31]) when they remarked (citations omitted): It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts…
State of New South Wales v Quirk [2012] NSWCA 216
Citation 27

…2007] NSWCA 303 New South Wales v Ibbett [2006] HCA 5; 229 CLR 638 New South Wales v Koumdjiev [2005] NSWCA 247; 63 NSWLR 353 New South Wales v Quirk [2012] NSWCA 216 Noye v Robbins; Noye v Crimmins [2007] WASC 98 Nye v New South Wales [2003] NSWSC 1212…
Maric v The Nominal Defendant [2012] NSWDC 69
Citation 28

…alian Capital Territory [2018] ACTSC 19 Lule v State of NSW [2018] NSWCA 125 Maric v Nominal Defendant [2013] NSWCA 190 Maric v The Nominal Defendant [2012] NSWDC 69 Mason v Demasi [2009] NSWCA 227 McHale v Watson (1964) 111 CLR 384 Moon v Whitehead [2015] ACTCA 17 Morro & Ahadizad v ACT [2009] ACTSC 118…
State of New South Wales v Zreika [2012] NSWCA 37
Citation 29

…e of New South Wales v Cuthbertson [2018] NSWCA 320 State of New South Wales v Riley [2003] NSWCA 208; 57 NSWLR 496 State of New South Wales v Zreika [2012] NSWCA 37 TD v New South Wales [2010] NSWSC 368 The Nominal Defendant v Cordin [2017] NSWCA 6; 79 MVR 210 The Queen v Phillips (1971) 45 ALJR 467…
Director of Public Prosecutions (NSW) v Elskaf [2012] NSWSC 21
Citation 30

…y v New South Wales [2011] NSWCA 413 Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250 Director of Public Prosecutions (NSW) v Elskaf [2012] NSWSC 21 DNM Mining Pty Ltd v Barwick [2004] NSWCA 137 Eathan Cruse v State of Victoria [2019] VSC 574; 59 VR 241 Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd…
Darcy v State of New South Wales [2011] NSWCA 413
Citation 31

…; Northam v Kelly [2016] NSWSC 1447 Craig v Silverbrook [2013] NSWSC 1687 Cubillo v Commonwealth [2001] FCA 1213; 112 FCR 455 Darcy v New South Wales [2011] NSWCA 413 Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250 Director of Public Prosecutions (NSW) v Elskaf [2012] NSWSC 21 DNM Mining Pty Ltd v…
Fernando v Commonwealth [2010] FCA 753
Citation 32

…Erlich v Leifer [2015] VSC 499 Evans v Braddock [2015] NSWSC 249 Falco v Aiyaz [2015] NSWCA 202; 71 MVR 454 Fernando v Commonwealth [2014] FCAFC 181; 231 FCR 251 Fontin v Katapodis (1962) 108 CLR 177 Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560 Goldie v Commonwealth of Australia (No 2) [2004…
TD v State of NSW [2010] NSWSC 368
Citation 33

…018] NSWCA 320 State of New South Wales v Riley [2003] NSWCA 208; 57 NSWLR 496 State of New South Wales v Zreika [2012] NSWCA 37 TD v New South Wales [2010] NSWSC 368 The Nominal Defendant v Cordin [2017] NSWCA 6; 79 MVR 210 The Queen v Phillips (1971) 45 ALJR 467…
State of South Australia v Lampard-Trevorrow [2010] SASC 56
Citation 34

…[2005] HCA 48; 222 CLR 612 Sangha v Baxter [2009] NSWCA 78; 52 MVR 492 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 South Australia v Lampard-Trevorrow [2010] SASC 56 State Government Insurance Commission v Oakley (1990) 10 MVR 570 State of New South Wales v Cuthbertson [2018] NSWCA 320 State of New South Wales v R…
Morro v Australian Capital Territory [2009] ACTSC 118
Citation 35

…Defendant [2012] NSWDC 69 Mason v Demasi [2009] NSWCA 227 McHale v Watson (1964) 111 CLR 384 Moon v Whitehead [2015] ACTCA 17 Morro & Ahadizad v ACT [2009] ACTSC 118…
Mason v Demasi [2009] NSWCA 227
Citation 36

…ACTSC 19 Lule v State of NSW [2018] NSWCA 125 Maric v Nominal Defendant [2013] NSWCA 190 Maric v The Nominal Defendant [2012] NSWDC 69 Mason v Demasi [2009] NSWCA 227 McHale v Watson (1964) 111 CLR 384 Moon v Whitehead [2015] ACTCA 17 Morro & Ahadizad v ACT [2009] ACTSC 118…
Michael William Hutchison v David Fitzpatrick [2009] ACTSC 43
Citation 37

…otor Accident Commission (1998) 196 CLR 1 Haynes v Harwood (1936) 1 KP 46 Houda v State of New South Wales [2005] NSWSC 1053 Hutchinson v Fitzpatrick [2009] ACTSC 43 Insurance Office of NSW v Aboushadi [1999] NSWCA 396 Jones v Dunkel (1959) 101 CLR 298 Kalenik v Apostolidis & Ors [2009] VSC 208 Lamb v Cotogno (198…
Sangha v Baxter [2009] NSWCA 78
Citation 38

…Katarzynski [2002] NSWSC 613 Re Kit Digital Australia Pty Ltd (in liq) [2014] ACTSC 1547 Ruddock v Taylor [2005] HCA 48; 222 CLR 612 Sangha v Baxter [2009] NSWCA 78; 52 MVR 492 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 South Australia v Lampard-Trevorrow [2010] SASC 56 State Government Insurance Commission v Oakl…
ACN 087 528 774 Pty Ltd v Chetcuti [2008] VSCA 274
Citation 39

…Ltd) v Chetcuti [2008] VSCA 274 Alchin v State of New South Wales (Unreported, NSW District Court, Wass DCJ, 3 December 2018) Amaca v Latz [2017] SASCFC 145 Australian Capital Territory Schools Authority v El Sheik [2000] FCA 931 Beckett v State of New South Wales [2015] NSWSC 1017 Boughey v R (1986) 161 CLR 10 Br…
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Citation 40 (Para 8)

…r both. The difficulties attending this kind of exercise should be well-understood; as explained in the Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8]. Such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others: (a) the health profe…
The Queen v Phillips [2008] NZCA 440
Citation 41

…496 State of New South Wales v Zreika [2012] NSWCA 37 TD v New South Wales [2010] NSWSC 368 The Nominal Defendant v Cordin [2017] NSWCA 6; 79 MVR 210 The Queen v Phillips (1971) 45 ALJR 467…
Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204
Citation 42

…Joseph Brilley [2008] NSWCA 204; 73 NSWLR 241…
State of New South Wales v Delly [2007] NSWCA 303
Citation 43

…Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 502 New South Wales v Delly [2007] NSWCA 303 New South Wales v Ibbett [2006] HCA 5; 229 CLR 638 New South Wales v Koumdjiev [2005] NSWCA 247; 63 NSWLR 353 New South Wales v Quirk [2012] NSWCA 216 Noye v Robbins; Noye v Crimmins [2007] WASC 98 Nye v New South Wal…
Cakir v Arnott's Biscuits Pty Ltd [2007] VSCA 104
Citation 44

…Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104…
Noye v Robbins [2007] WASC 98
Citation 45

…CA 5; 229 CLR 638 New South Wales v Koumdjiev [2005] NSWCA 247; 63 NSWLR 353 New South Wales v Quirk [2012] NSWCA 216 Noye v Robbins; Noye v Crimmins [2007] WASC 98 Nye v New South Wales [2003] NSWSC 1212…
New South Wales v Ibbett [2006] HCA 57
Citation 46

…Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 502 New South Wales v Delly [2007] NSWCA 303 New South Wales v Ibbett [2006] HCA 5; 229 CLR 638 New South Wales v Koumdjiev [2005] NSWCA 247; 63 NSWLR 353 New South Wales v Quirk [2012] NSWCA 216 Noye v Robbins; Noye v Crimmins [2007] WASC 98 Nye v New Sout…
Ferdinands v Commissioner for Public Employment [2006] HCA 5
Citation 47

…Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 502 New South Wales v Delly [2007] NSWCA 303 New South Wales v Ibbett [2006] HCA 5; 229 CLR 638 New South Wales v Koumdjiev [2005] NSWCA 247; 63 NSWLR 353 New South Wales v Quirk [2012] NSWCA 216 Noye v Robbins; Noye v Crimmins [2007] WASC 98 Nye v New South…
Houda v New South Wales [2005] NSWSC 1053
Citation 48

…Graham v Baker (1961) 106 CLR 340 Gray v Motor Accident Commission (1998) 196 CLR 1 Haynes v Harwood (1936) 1 KP 46 Houda v State of New South Wales [2005] NSWSC 1053 Hutchinson v Fitzpatrick [2009] ACTSC 43 Insurance Office of NSW v Aboushadi [1999] NSWCA 396 Jones v Dunkel (1959) 101 CLR 298 Kalenik v Apostolidis…
Ruddock v Taylor [2005] HCA 48
Citation 49

…Purkess v Crittenden (1965) 114 CLR 164 R v Katarzynski [2002] NSWSC 613 Re Kit Digital Australia Pty Ltd (in liq) [2014] ACTSC 1547 Ruddock v Taylor [2005] HCA 48; 222 CLR 612 Sangha v Baxter [2009] NSWCA 78; 52 MVR 492 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 South Australia v Lampard-Trevorrow [2010] SASC 56…
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208
Citation 50

…a Pty Ltd (in liq) [2014] ACTSC 1547 Ruddock v Taylor [2005] HCA 48; 222 CLR 612 Sangha v Baxter [2009] NSWCA 78; 52 MVR 492 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 South Australia v Lampard-Trevorrow [2010] SASC 56 State Government Insurance Commission v Oakley (1990) 10 MVR 570 State of New South Wales v Cuthbe…

AI Chat coming soon

Defendants’ Submissions on Credit and Reliability	9
Plaintiff’s Submissions on Credit and Reliability	11
Consideration	12
Contradictory evidence from another witness: MVA 2 (2015)	15
Contradictory evidence from another witness: MVA 1 (2013)	15
Contradictory evidence from another witness: The Bunnings Incident	16
Contradictory evidence from contemporaneous documents	16
Conclusion – Credit and Reliability of the Plaintiff	19

Lay Evidence	26
CCTV Footage	28
Expert Evidence – the Bunnings Incident	29

Breach of Duty of Care	34
Contributory Negligence	35
Causation of Injuries	35

Breach of the Duty of Care	36
Contributory Negligence	37
Causation of Injuries	37

Lay Evidence	57
CCTV Footage	62
Expert Evidence – the Eastlake Incident	63

Relevant Legal Principles: Intentional Torts	76
Factual Findings	77
Sections 435 and 218 of the Crimes Act	79
Factual findings as to injuries said to have been caused by the	79
Eastlake Incident

Submissions of Eastlake	80
Plaintiff’s List of Cases	82
Defendant’s List of Cases	85
Further Submissions of Eastlake	90
Submissions in Reply	92

False Imprisonment	93
Battery/Assault	93
Economic Loss	93
Aggravated Damages	93
Exemplary Damages	94
Determination	95

Evidence of the Plaintiff	114
Evidence of Ms Mary Southorn	115
Submissions of the Plaintiff – Griffiths Damages	116
Submissions of Eastlake – Griffiths Damages	116
Submissions of the GIO Defendants – Griffiths Damages	117
Consideration – Griffiths Damages	117

(c)	On 15 February 2014, the plaintiff was involved in an incident where it is alleged he was falsely imprisoned and assaulted at Eastlake Football Club (the Eastlake Incident);
(d)	On 31 August 2015, the plaintiff was involved in a motor vehicle accident when

(a)	Bunnings Incident (SC 268 of 2017): Bunnings Group Limited (Bunnings);
(b)	MVA 1 (2013) and MVA 2 (2015) (SC 312 of 2017): Ms Jade O’Halloran (First

(c)	Eastlake Incident (SC 267 of 2017): Eastlake Football Club Limited (Eastlake);
(d)	MVA 3 (2018) (SC 510 of 2018): Mr Tejinder Bhagria (First Defendant) and AAI Limited trading as GIO (Second Defendant) (the GIO defendants).

(b)	Evasive answers regarding the obligation of telling the truth to doctors in preparation for his case;
(c)	A “bizarre” explanation for his need to wear an eyepatch and darkened glasses
to assist with pain and concentration, which was not repeated on any subsequent day of trial;
(d)	His evidence that Ms Southorn could speak to the level of domestic assistance and that he asked Ms Southorn to write down the details, but that they did not discuss the detail;
(e)	The plaintiff “pretending” only to be able to answer a question without

(a)	The plaintiff gave inconsistent answers in oral evidence and to various doctors as to how long he ceased working as a chiropractor following the Eastlake Incident, ranging from 2 weeks, to 18 months, to a complete cessation: at [182]- [203].
(b)	The Business Activity Statements (BAS) for the plaintiff’s chiropractic business

(c)	The plaintiff provided false information to the Trustee in Bankruptcy as to the date when he ceased working and his rental expenses: at [219]-[231].
(d)	The plaintiff’s oral evidence that memory issues and consequential depression
only arose after the Eastlake Incident is inconsistent with the evidence, including his own previous accounts: at [232]-[240].
(e)	Allegations that the plaintiff was able to work fulltime as a chiropractor prior to these incidents are contradicted by various medical reports, undermining the

(b)	the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;
(c)	the record did not identify any questions which may have elucidated replies;
(d)	the record is likely to be a summary prepared by a health professional, rather than a verbatim recording; and
(e)	a range of factors, including fluency in English, the professional’s knowledge of

(a)	contradictory evidence of the same events from another witness, specifically three separate witnesses in relation to three separate events; and
(b)	contradictory evidence from contemporaneous documents.

•	he kept records of his patients’ attendances and charges;
•	those records were then provided to a bookkeeper;
•	the bookkeeper compiled the income and expenses for each quarter based on these records;
•	he had no complaint with the competence or work performed by his bookkeeper; and
•	the bookkeeper would then forward the compiled income and expenses

•	1 July – 30 September 2012: $9,650
•	1 October – 31 December 2012: $5,891
•	1 January – 31 March 2013: $10,098
•	1 April – 30 June 2013: $13,580
•	1 July – 30 September 2013: $12,923
•	1 October – 31 December 2013: $11,934
•	1 January – 31 March 2014: $19,764
•	1 April – 30 June 2014: $15,874
•	1 July – 30 September 2014: $15,216
•	1 October – 31 December 2014: $4,798
•	1 January – 31 March 2015: $10,833
•	1 April 2015 – 30 June 2015: $9,799
•	1 July 2015 – 30 September 2015: $13,027
•	1 October 2015 – 31 December 2015: $8,116
•	1 January 2016 – 31 March 2016: $7,341
•	1 April 2016 – 30 June 2016: $9,628
•	There is also tendered a Profit and Loss Statement for the tax year ended 30 June 2017 showing income of $33, 696

(a)	Firstly, that the plaintiff was predisposed to the conditions that developed as a consequence of the accident;
(b)	Secondly, that part of the plaintiff’s condition was traceable to causes other than

a.	the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
b.	the risk was not insignificant; and
c.	in the circumstances, a reasonable person in the person’s position would

a.	the probability that the harm would happen if precautions were not taken;
b.	the likely seriousness of the harm;
c.	the burden of taking precautions to avoid the risk of harm;
d.	the social utility of the activity creating the risk of harm.

a.	the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and
b.	the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which it was done; and
c.	the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and is not of itself an admission of liability in relation to the risk.

a.	the court may continue to apply the established common law principle under which responsibility may be assigned to the defendants for causing the harm; but
b.	the court must consider the position of each defendant individually and state the reasons for bringing the defendant within the scope of liability.

a.	the state of the premises; or
b.	things done or omitted to be done about the state of the premises.

a.	the gravity and likelihood of the probable injury;
b.	the circumstances of the entry onto the premises;
c.	the nature of the premises;
d.	the knowledge the occupier has or should have about the likelihood of people or property being on the premises;
e.	the age of the person entering the premises;
f.	the ability of the person entering the premises to appreciate the danger;
g.	the burden on the occupier of removing the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.

(b)	fracture to nasal bone and nasal septum; and
(c)	pain in the face and nose.

(a)	difficulty breathing;
(b)	necessity for rhinoplasty surgery;
(c)	necessity for septal reconstruction to realign nasal bones and nasal septum;
(d)	recurring sinus infection;

(f)	necessity for pain relief medication; and
(g)	necessity for attendance on medical specialists.

(a)	the collision was low speed and there was no expert evidence adduced as to how fast Mr Bhagria was travelling;
(b)	Dr Gibson opined the force of the accident, involving a change in velocity of between 4 km/h to 8 km/h, was not sufficient to cause the alleged injuries (Ex. 5 p. 399);
(c)	the plaintiff gave evidence he was wearing a seatbelt and there was no head strike (T 825.17-19);
(d)	the AFP Case Summary noted “little to no damage to both vehicles”;
(e)	Dr Delaney relied upon the plaintiff’s report and his letter of instruction for his
assumption of concussion, and the reference to concussion in the form signed by Dr Broderick had been inserted by the plaintiff himself;
(f)	Professor Mattick opined that the evidence did not support a finding of concussion; and
(g)	In cross-examination, Dr Le Leu stated he would not have been confident to draw his conclusion that the alleged concussion caused the February Fall had he known of the pre-existing upward gaze diplopia (T 1534-37).