Steven Paul Muscat v Nicholas Haider

[2014] ACTSC 152

STEVEN PAUL MUSCAT v NICHOLAS HAIDER
[2014] ACTSC 152 (27 June 2014)

TRESPASS TO THE PERSON – assault and battery – altercation at restaurant in licensed club ­– further altercation in club carpark – decision depending upon particular facts – no issue of principle

DAMAGES – personal injury – injury to shoulder resulting from fall to floor with impact to elbow – tears to tendons within shoulder joint – subsequent successful surgery to repair tendons – no issue of principle

Evidence Act 1995 (Cth), s 128
Court Procedures Rules 2006 (ACT), r 50
Legislation Act 2001 (ACT), s 255(4)

Griffiths v Kerkemeyer (1977) 139 CLR 161

No. SC 499 of 2007

Master Harper
Supreme Court of the ACT

Date: 27 June 2014     

IN THE SUPREME COURT OF THE       )
  )          No. SC 499 of 2007
AUSTRALIAN CAPITAL TERRITORY    )          

BETWEEN:  STEVEN PAUL MUSCAT

Plaintiff           

AND:  NICHOLAS HAIDER

Defendant

ORDER

Judge:  Master Harper
Date:  27 June  2014
Place:  Canberra

THE COURT ORDERS THAT:

1. judgment be entered for the plaintiff in the sum of $106,360.00.

1. judgment be entered for the plaintiff on the counterclaim.

1. the plaintiff’s costs be paid by the defendant.

1. the order as to costs be stayed for fourteen days.

1. The plaintiff claims damages for personal injury arising out of physical altercations with the defendant at the Hellenic Club, Woden, on 26 November 2006. The defendant makes a counterclaim for damages for personal injury.

1. The statement of claim expresses the claim to be in negligence. The particulars of negligence include two incidents of assault. The counter claim is for assault.

The pleadings

1. The plaintiff asserts that on 26 November 2006 at the Hellenic Club, the defendant unlawfully and without permission took hold of him around the neck from behind, forcing his left shoulder backwards. The defendant is said to have choked the plaintiff and pulled him backwards, rendering him unconscious or incapable of standing, with the consequence that he was forced to the floor. It is asserted that about five minutes later, as the plaintiff was leaving the club, the defendant approached him and punched him in the face, knocking him to the ground, and then sat on his chest and punched him repeatedly around the face and head.

1. The defendant initially filed a defence admitting all of those assertions, but asserting that he had been acting in self-defence. I was informed at the commencement of the trial that the admissions had been made in error, and that the paragraphs of the statement of claim setting out the alleged facts were denied. I granted leave to the defendant to file an amended defence.

1. The counterclaim was unchanged. The defendant asserted that that plaintiff had repeatedly hit him in the head at the club, and had later in the club carpark grabbed him by the throat, dragged him to the ground and choked him.

The plaintiff’s case

1. Counsel for the plaintiff opened his client’s case with the following narrative. On 26 November 2006, the Yianoulakis family held a dinner at the Taverna restaurant at the Hellenic Club. The family had conducted the restaurant for a term of years, which was coming to an end, although they would continue to operate another restaurant at the club. The plaintiff was one of the invited guests at the dinner. He was a chef, and had been for all his working life. He had in the past been the chef for the Taverna restaurant, but by the time of the incident was working at a cafe in Phillip. He occasionally helped out at the Taverna when asked, and was friendly with members of the family. The narrative continued that, during the course of the dinner, a small group of men of Greek extraction arrived wanting a meal. They became dissatisfied when told that the function was a private one and the kitchen was closed. There was a verbal altercation between those men and some members of the Yianoulakis family. Something was said by one of these men to one of the sons, Dimitri, who took exception to the words spoken, and a heated exchange developed. The plaintiff intervened to prevent the dispute descending into a physical conflict. He took hold of Dimitri from behind in a bear hug and lifted him a little from the floor. He walked him backwards away from the confrontation. Dimitri struggled and asked him to let go, saying that he wanted to engage the older man in an argument at least, and probably something more.

1. The defendant was also at the dinner. He was a friend of the Yianoulakis boys. He got up and went to the plaintiff. He seized the plaintiff tightly around the throat, forcing his left shoulder backwards and cutting off his breathing. This eventually caused the plaintiff and Dimitri to fall to the floor, with the plaintiff falling backwards on to his left elbow, with Dimitri’s weight on top of him.

1. Other members of the family and guests came to the plaintiff’s assistance. They had difficulty in getting the defendant to let go of the plaintiff. When he got up, he left quickly via a back door, leaving the plaintiff breathless and in pain on the floor. The plaintiff was conscious of pain in the shoulder, but not the extent of the injury.

1. The plaintiff’s case was that he remained upstairs at the club for five or ten minutes, then decided to leave. Mrs Yianoulakis, Dimitri’s mother, went downstairs with him to the front door of the club to see him out. He walked about 80 metres to where his car was parked. He then drove back past the front of the club and stopped near another car parked near the front door of the club, in which the defendant was sitting in the driver’s seat Dimitri’s brother, Arthur, was in the passenger’s seat. The plaintiff stopped and got out of his car. He went around the back of the defendant’s vehicle, intending to remonstrate with the defendant about what had occurred earlier. As he came around to the driver’s side, the defendant leapt from the vehicle and struck him forcefully with a closed fist in the left temple. The defendant punched him again and the plaintiff fell to the ground. The defendant then leapt on him, straddling his body, and commenced to pummel him until Arthur and Mrs Yianoulakis physically stopped him and separated the men.

1. The plaintiff’s case is that the defendant then got into his vehicle and drove off, leaving the plaintiff on the ground outside the club. Mrs Yianoulakis assisted him and eventually took him to her home where she bathed his wounds. He had facial cuts, bruising to the neck and a black eye.

1. He went to the Canberra Hospital the next morning, and subsequently to his general practitioner, who referred him for physiotherapy.

1. Before these events the plaintiff had had symptoms in his right knee, and had an appointment to see an orthopaedic surgeon, Dr Robert Creer. The knee was not further injured in those incidents. The plaintiff’s general practitioner told him that when he saw Dr Creer he should tell him about his left shoulder symptoms also.

1. Dr Creer operated on the plaintiff’s right knee in March 2007. He advised him that he should have an operation on the right shoulder, but the plaintiff elected not to do so because he could not afford to be away from work at that time. The advice was that he would probably be unable to work for about three months after shoulder surgery.

1. In March 2010 the plaintiff underwent surgery performed by Dr Creer for the repair of a torn supraspinatus tendon in the left shoulder, after which he was off work for about three weeks and then able to work only part-time for a further six weeks. By the time of trial he continued to complain of a degree of pain and discomfort in the left shoulder, and also of some symptoms of depression and sleep disorder.

1. Since 2000 the plaintiff had been under the care of a psychiatrist, Dr Robert Tym, for attention deficit disorder. After the events of November 2006, Dr Tym diagnosed the plaintiff as suffering from severe post-traumatic stress disorder and major depressive disorder. The former condition eventually abated, but the depressive disorder continued.

The plaintiff’s evidence

1. The plaintiff was born in March 1962. He was 44 at the time of the claimed assaults and is now 52. His evidence was that on 26 November 2006, he had been asked by Mr and Mrs Yianoulakis to work in their downstairs restaurant at the Hellenic Club. His full-time job involved the management of a cafe at Woden during the day, but he was free to work at night if asked. He had previously worked for the family at the Hellenic Club for about three years and had kept in touch with them after that. On the night in question, they were holding a dinner to mark the end of their running of the upstairs restaurant, the Taverna, and they invited him to attend what he was told was a special dinner for friends, with a Greek band. He went upstairs to attend the dinner at about 9:00 or 9:30 pm. There were two long tables. He sat down and talked to some of the people he used to work with. Those present included Mr and Mrs Yianoulakis and their sons Arthur and Dimitri. The plaintiff’s recollection was that on arrival he had a beer, and during dinner a glass of white wine. Later, Dimitri bought a round of cocktails and the plaintiff drank one of them. He was careful not to drink too much because he intended to drive home and had to be up at 5:00 am to get to the cafe at 6:00 am to set up for the next day’s work.

1. During the evening some older Greek men arrived, and there was an argument between them and members of the Yianoulakis family about whether they could be served a meal. The plaintiff observed the development of a verbal altercation in which Dimitri Yianoulakis was involved, about fifteen metres from him. He got up and walked over towards him. He said, “Dimitri, let it go, it’s not worth it.” The plaintiff tried to get between Dimitri and the older man he was arguing with. Dimitri walked around him. The plaintiff put his arms around Dimitri and grabbed him, pinning his arms to his body. He lifted Dimitri up and walked him backwards towards the servery. As he was doing this, Dimitri said in an angry voice, “Let me go, Steve.” The plaintiff replied with words to the effect “It’s not worth it, not tonight.” The plaintiff loosened his grip a little, but as Dimitri tried to break free, the plaintiff tightened his grip and continued to walk him towards the servery.

1. He then felt someone put an arm around his neck and start to choke him, pulling him towards the left side. He could not breathe. He fell. He said, “We all fell my way backwards, and my elbow hit the tiles.” His evidence was that the arm of this other person was around his neck. He could not breathe. He let go of Dimitri and tried to get the arm away from his throat. He was panic-stricken. A lot of people crowded around as he was pulling the arm from his neck and turned around and saw that it was the defendant. The defendant was directly behind him, lying on the ground, with the plaintiff half lying on top of him. He knew the defendant as a friend of the Yianoulakis family. He had known him for about two years. The defendant had come from time to time to the restaurant for dinner when Arthur Yianoulakis was working there. They had held a joint twenty-first birthday party at the club a few months earlier, at which the plaintiff had cut the cake.

1. The plaintiff said that he was having trouble breathing, and lay on the ground for a period of time until Mrs Yianoulakis helped him up. He did not see the defendant and did not know where he had gone. He had pain in the left shoulder and a very sore throat, and he felt very dizzy. He decided to leave the function after about ten or fifteen minutes. He walked down the stairs. Mrs Yianoulakis walked down the stairs with him. He left her at the front entrance to the club, and walked about eighty metres to his car. He warmed the engine for about five minutes, and then started to drive out of the club parking area. This took him back to the front entrance of the club where he found Mrs Yianoulakis still standing. She was looking towards him. He stopped the car just next to her. He then saw a silver-blue RAV 4 with the front door open. He saw Arthur Yianoulakis in the front passenger seat. He stepped out of the car. As he stood up he saw the defendant in the driver seat. He walked towards the rear of the RAV 4. His evidence was that he wanted to talk to the defendant about the altercation upstairs, to abuse him, and to tell him that he had brought down the family and that his conduct had been disrespectful. He walked from the rear towards the driver’s door. As he turned the corner, he felt a punch to his left temple and then another punch to his left ear. After the first punch, he had blurred vision and could not see properly. He tried to lean forward to grab his assailant but was not sure whether he succeeded. He fell backwards and hit his head on the concrete surface of the carpark, with the defendant on top of him. The defendant then started to hit him with a closed fist into his eyes, neck and nose. The plaintiff tried to push him back and off him, without success. He then tried to pull the defendant on top of him so that he would not be able to continue punching him. This was partially successful.

1. The plaintiff heard Arthur’s voice saying, “Let him go, Steve,” which he did. Arthur pulled the defendant off him. The defendant was still trying to hit the plaintiff. The plaintiff lay there. He did not actually see his assailant sufficiently to identify him, but he knew that it was the defendant. The plaintiff lay there, and did not see the defendant again that evening.

1. Arthur and his mother and a security guard at the Club came to his assistance. Someone brought water to wash blood off him. He thought it was about fifteen or twenty minutes before he was able to get up off the ground. He wanted to go home, but Mrs Yianoulakis insisted that he go back to her house.

1. The plaintiff was able to drive his own car to the home of Mr and Mrs Yianoulakis at Mawson. He lay on a sofa and Mrs Yianoulakis washed blood off him. He was still bleeding. His shirt was torn and she got him one of Arthur’s shirts. She got ice which she applied to his injuries. He thought that he was at their home for half an hour to an hour. During this time, Arthur and his father came home. Eventually, the plaintiff drove home, a short distance to where he lived in Farrer. His recollection was that he got home at about midnight or 12:30 am. He had a shower and lay on a sofa in the living room. He did not see his wife that night. He felt groggy, with a bad headache and nausea. He was unable to sleep, continuing to relive the assaults.

1. In the morning he left before his wife got up. He said he did not want her to see the way he looked. He had to open the café for the other staff. He went to the café, but left as soon as other staff arrived and went to hospital.

1. He was given painkillers. X-rays were taken. He was kept there for two or three hours and then was discharged. He went to the police station where he told police what had happened.

1. His wife came to the hospital while he was there. They talked about his appearance and she suggested it should be recorded. She took photographs later that day when he got home. The police also took photographs.

1. The plaintiff saw his general practitioner soon afterwards, and was referred for an MR arthrogram of the left shoulder and a CT scan of the brain. By this time the left shoulder had become very painful and the plaintiff said he could barely move it. This caused problems with his work as a chef, which involved working with heavy pots. On a busy night he might prepare as many as a hundred meals in a frypan. He said that he would have taken eight painkillers or so by the end of a shift to get through it. He was prescribed Panadeine Forte, but was not happy taking a lot of codeine, so generally relied on Nurofen and strong over-the-counter medication.

1. He found that the pain in the shoulder interfered with his sleep. It was worse sleeping on a flat surface, and he ended up sleeping in a recliner chair, lucky to get two hours sleep a night. He gave up gardening, a favourite pastime, because it caused too much irritation to the shoulder.

1. He had recurring dreams about being assaulted. He was badly affected by the memory that his brother had committed suicide after being assaulted some years earlier, and his father had also committed suicide. The plaintiff began to drink heavily at night to get to sleep. He said that he was depressed and anxious, and woke covered in sweat. He was not the same person he had been. He no longer went out socially. For a long time after the assault, he suffered from bad headaches, but these became less severe over time.

1. For the first couple of weeks after the assaults, the plaintiff said he found it hard to swallow, as though something was stuck in his throat, and hard to breathe. These symptoms resolved after about three weeks.

1. The plaintiff said that by the time of trial, he had become a different man. He was not relaxed. He did not feel comfortable interacting with other people. He almost never went out with his wife, and just wanted to sit in a chair at home on his days off. He thought that he had become more aggressive, and tended to get upset over little things.

1. The plaintiff said that his knee surgery in March 2007 had been completely successful. Dr Creer had advised him that it was in his interests to have surgery to the left shoulder sooner rather than later, because of muscle wasting, but he could not at the time afford the expense or the time off work.

1. The plaintiff said that his shoulder symptoms became worse over the years after the injury. He lost strength in the arm and the shoulder became more painful. He had difficulty lifting heavy kitchen utensils. He had a sensation of numbness down the left arm.

1. The plaintiff said that when he was younger, he had done a lot of power lifting and body building. He had competed at State level. After the injury he got back to gym exercises. His son, then 17, showed promise as a rugby player and the plaintiff went with him to the gym where he engaged in machine exercises including weight training. In 2009 he was advised that he should lose weight because of a high blood sugar level, and he engaged in a gym program for this purpose. He did not do any weightlifting with his upper body because he found that it irritated his shoulder and made it worse.

1. In about May 2007 the plaintiff left his employment at the café at Woden and went back to work at the Hellenic Club with the Yianoulakis family as chef at the downstairs restaurant.

1. After the shoulder operation in March 2010, the plaintiff said that his arm was strapped to his waist for about six weeks until he started physiotherapy. During this period, he was often in extreme pain, and took a lot of painkillers.

1. He is right-handed, but explained that as a chef he used his left hand to hold a frying pan. He said that the work was very physical, and that the left arm worked very hard. He used the left arm to lift pots and pans, whilst he usually had a pair of tongs or a spatula in his right hand.

1. By the time of trial, he said that he could perform his work as a chef, but did not have the same strength as before and found that his left arm became tired quickly. He could no longer hold a heavy weight in his left hand at full arm stretch. He had to modify his activities to take account of the weakness in the left arm.

1. After the shoulder operation the plaintiff had physiotherapy for about five weeks, followed by a prescribed gym program lifting light weights with the left arm twice a week for about six months. At the time of that surgery, he was earning $930.00 net per week, and lost income during his time off work.

1. After the injury he had considerable assistance from a friend named Sue Howland, a massage therapist. She did not charge him for her services. He sometimes bought her wine, or took her out for dinner.

1. It was put to the plaintiff during cross-examination by senior counsel for the defendant that between the taking of the police photographs and the photographs taken by his wife, he had either intentionally injured himself or had applied makeup to alter the appearance of the bruising. The plaintiff denied having done either of those things.

1. He conceded that he had suffered from depression for some years before November 2006, following the suicide of his father and aggravated by the suicide of his brother, and that he had been on anti-depressant medication, but his evidence was that this became much worse after the assaults, and his dosage was doubled.

1. It is convenient at this point to refer to some of the documentary evidence, including statements previously made by the plaintiff. I had the benefit of two signed, typed statements, prepared in May 2007, by Constable Garry Gowing and Constable Louise Hawke. Both said that they were on duty on Monday 27 October 2006 at about 2:15 pm and attended the plaintiff’s home and spoke to him about an assault at the Hellenic Club the previous day. They observed the plaintiff to have injuries in the form of grazes to the face and nose, a swollen and bruised left eye, scratches above the left ear and bruising to the right arm. They asked the plaintiff to attend Woden Police Station to make a statement. He did so at 3:30 pm on the same day. Constable Gowing took a series of photographs of the injuries on a digital camera.

1. The photographs are in evidence as colour prints and as recorded on a computer disk. A typed statement signed by the plaintiff on 27 November 2006 is also in evidence. The contentious portions of the statement are as follows:

“As the night wore on, the males became verbally abusive. Aleka’s eldest son Dimitri started to walk towards the males. I grabbed Dimitri from the front to diffuse [sic] the situation and started to lead him towards the bar.

A male who I know as Nick, who is a friend of Dimitri’s, has then placed his arm around my neck and arms and tried to pull me back. I think Nick thought I was trying to fight Dimitri. Nick has pulled with such force that I hit the ground and released my hold of Dimitri. Nick has then held me on the ground, not allowing me to move. Someone has made Nick release his grip.

I then decided to leave the restaurant. Aleka has walked me to the door. I then went over to my car, a white Mazda RX7.   .   . I then hopped in my car and as I was driving out, I looked over at the front of the Hellenic Club and saw Aleka standing there. I drove over to apologise. When I pulled up, I noticed she was standing next to a blue five door Toyota RAV 4. I noticed that Aleka’s other son, Arthur, was sitting in the passenger’s seat. Nick was sitting in the driver’s seat.

I got out of the car and walked around the back of the RAV 4. I wanted to ask Nick why he had done what he did upstairs. At no time did I intend to fight Nick.

Nick has gotten out of the car and walked towards me. He has then hit me two times to the left side of my face with a right clenched fist. I then grabbed Nick and wrestled him to the ground. Whilst on the ground, Nick has hit me another two times to my left ear.

When Nick hit me, I think I went into shock. I can’t remember feeling much pain, but the left side of my face was numb. I remember realising that I was bleeding from my nose. It all happened so quick and unexpectedly.

I think I grabbed Nick around the throat to try and put some distance between us. I was dazed from the hits and could not really see what Nick was doing. Arthur was trying to get Nick off me. I stayed lying on the ground.

Nick has then gotten in his car and driven away.

1. The defendant was summonsed for an offence which I presume was assault occasioning actual bodily harm. Committal proceedings in respect of this prosecution were held in the Magistrates Court in September 2007. The defendant was committed for trial. He was tried before Penfold J and a jury in March 2008. He was acquitted. Some pages of transcript of the committal and of the trial were tendered, but not the whole. The plaintiff was cross-examined on his police statement and on the evidence he gave both on the committal and at the trial. I did not have the benefit of a transcript of his evidence in either court. A few selective questions and answers from both transcripts were put to him, but without the transcript I am unable to make much of those portions of the cross-examination.

1. Whilst it is not entirely clear, I gained the impression that the criminal prosecution related only to the events which occurred in the carpark of the Hellenic Club, not to the events which occurred earlier upstairs in the restaurant.

The Yianoulakis evidence

1. Oral evidence was given in the plaintiff’s case by Dimitri and Arthur Yianoulakis and by their mother, Alexandra, known as Aleka.

1. I also had the benefit of the evidence of Arthur Yianoulakis at the defendant’s committal and trial, and of Mrs Yianoulakis at the trial.

1. Dimitrios Yianoulakis was born in December 1983. He was 22 at the time of the claimed assaults and 27 when he gave evidence in these proceedings. He had been at the dinner for an hour or two before the events upstairs took place. He was, in his own assessment, half intoxicated by that time. He was involved in an argument with an older Greek man when he was grabbed by the plaintiff. He had known the plaintiff well for four or five years at that time and had been sitting at the table with him earlier. He was grabbed around the back, in his words like a bear hug. The plaintiff was behind him and at first he did not know who it was. He turned his head and recognised the plaintiff. The plaintiff told him to “Let it go.” Dimitri tied to break free, but did not say anything. He was angry at what the older Greek man had said. The plaintiff lifted him off the floor and walked him to the back of the restaurant.

1. Dimitri said that the next thing that happened was that the defendant came over and grabbed the plaintiff. He could not recall exactly how he grabbed him. The defendant was a good friend. They had been at school together, probably four years earlier. Dimitri said that there was then “a bit of an altercation or a small altercation” between the plaintiff and the defendant, with both of them grabbing at the other. By that stage, he was free. He recalled the plaintiff and the defendant falling to the floor, and he heard someone else calling, “Let him go.” Dimitri left after that with a friend to go to the Mawson Club. He saw the defendant about fifteen minutes later at the Mawson Club, but they did not remain in each other’s company.

1. In cross-examination, Dimitri agreed that the plaintiff had had a tight grip around him, and that it had hurt. He agreed that he had said words to the effect of, “Steve, let me go.” He could not remember which of the plaintiff and defendant fell to the floor first, or who was on top, and he could not remember whether or not he had also fallen to the floor.

1. Arthur Yianoulakis was born in December 1984. He was twenty-one when the events in question took place, and twenty-six when he gave evidence in the present action. His recollection was that he got to the function at the club late, after dinner had finished. He remembered sitting around drinking, but said that he did not have much to drink and remained quite sober. He recalled seeing the defendant there. The defendant was a friend of his. He also recalled seeing the plaintiff, who he said was the chef at the restaurant and also a friend of his family.

1. He remembered his brother Dimitri becoming upset and having an argument with a couple of patrons in the restaurant. He saw the plaintiff intervene and put his arms around Dimitri to remove him from the area. He remembered his brother saying, “No, let go, let me go, let me go.” His recollection was that his brother was quite angry with the Greek patrons he had been arguing with. He said that the defendant became involved at that stage. He said that the defendant “sort of come over the top of Steve and pulled him down sort of off him.” He was asked to demonstrate how the defendant had taken hold of the plaintiff. Counsel agreed that what he demonstrated was the defendant’s elbow horizontally across the front of the plaintiff’s body with the forearm under the chin and against the throat, and the hand cupped behind the plaintiff’s shoulder. At this point Arthur was two or three metres from the plaintiff and the defendant. He remembered them falling to the floor, but did not remember where Dimitri was by that time. When they fell, he said that they fell backwards with the defendant under the plaintiff. Arthur ran forward to try to break them up, and pulled on the plaintiff for this purpose. There were other people helping, but he did not know who they were. The plaintiff and defendant were eventually separated. The defendant left down the back stairs within a minute or so. The plaintiff was still on the floor.

1. Arthur stayed at the function for another half an hour to an hour. After that, he met the defendant in the carpark, following a telephone conversation. He could not recall who had initiated the telephone call. He said that the defendant had said that he was sorry for what had happened and asked whether Arthur was free to come to the Mawson Club to catch up. At that point, Arthur decided to stay at the function. Later they spoke again on the telephone. By that time the defendant had arrived back at the Hellenic Club. He asked Arthur to come outside for a talk. Arthur went downstairs and out into the carpark where he saw the defendant sitting in his RAV 4. Arthur got into the passenger seat.

1. After about five minutes, he saw his mother and the plaintiff leaving the club from a distance of twenty or thirty metres. He did not think that either of them had seen him or the defendant. The plaintiff left Arthur’s mother and walked towards his car. Shortly afterwards, the plaintiff drove around to the front of the club and parked close and parallel to the defendant’s car. The plaintiff got out of his vehicle and made his way around the back of the defendant’s car to the driver’s side. At that point both he and the defendant got out of the car.

1. At that stage of Arthur’s evidence, counsel for the plaintiff applied for leave to cross-examine him as a hostile witness. He based this on the fact that the evidence Arthur was giving was inconsistent with a proof of evidence prepared by the solicitors for the plaintiff a few days earlier. I read the draft statement and admitted it as evidence on the hostile witness application, but it has not become evidence in the action. Counsel for the plaintiff also submitted that the evidence Arthur was giving was inconsistent with evidence he had given at the committal and the trial.

1. I was persuaded that it was in the interests of justice to permit counsel for the plaintiff to question Arthur Yianoulakis as though he were cross-examining him, about whether he had made a prior inconsistent statement.

1. Arthur said that when he saw the plaintiff pull up next to the defendant’s vehicle, the defendant opened his door first and Arthur opened his door and got out immediately afterwards. Arthur then ran around the back of the defendant’s car. As he came around from the back of the vehicle, he saw the plaintiff on the ground with the defendant on top of him, and he ran in to break them up as the defendant was punching the plaintiff on the ground. The plaintiff was on his back, and the defendant was positioned with his knees on either side of the plaintiff’s body. Arthur said that he saw the defendant hitting the plaintiff in the face. The plaintiff had his hands up in front of his face. He saw the defendant throw a few punches, probably four or five. There were then more punches before he was able to break them up. He did so by putting his arms around the defendant and attempting to pull him off and he eventually succeeded. He and the defendant both stood up. He could not remember whether they exchanged any words, but the defendant then went back to his car and drove away. Arthur stayed there to help attend to the plaintiff’s injuries. There was blood on the plaintiff and blood on the surface of the carpark. Arthur’s mother came over to help, and the duty manager of the club also came over. The plaintiff remained in a supine position for some time.

1. Arthur did not see the defendant again that evening and could not remember when he saw him next.

1. In his evidence at the committal proceedings in September 2007, Arthur gave evidence about the incident in the club carpark. He said that he had been sitting in the passenger seat of the RAV 4, with the defendant in the driver seat. They were having a short conversation, in which the defendant apologised for the incident upstairs. Arthur thought at that time that he had not closed the door when he got in. Arthur was unclear whether he saw the plaintiff leave the club to go to his car, but recalled him stopping his car parallel to the RAV 4. He said that neither the plaintiff nor the defendant said anything at that time. The plaintiff got out of his car and made his way around the back of the RAV 4 to the driver door. Arthur initially tried to engage the defendant in conversation so that he would not notice the plaintiff, but he said that they did see each other. He was asked in chief whether the earlier incident had been “all sorted out inside.” He said he would not say that. He had been in a few arguments himself. When one left something like that, there was a lot of tension, and it might take some time to sort out or get over something like that, “especially with guys and their ego.”

1. Arthur said that as the plaintiff came around the back of the RAV 4 towards the driver door, the defendant got out to confront the plaintiff. Arthur also got out and came around to see the two men on the ground with the defendant on top. His concern was to break the fight up. He did not see any injuries at that time. He eventually succeeded in pulling the defendant off the plaintiff. He did not see the plaintiff hit the defendant. Asked whether he saw the defendant hit the plaintiff, he said, “I can’t tell you how many times they hit each other, but I know there was something happening on the ground.   .   . the only thing that my brain was focusing on was to break them up, so, like, for me to say that either one was hitting the other, obviously you can work it out. If someone’s on top of someone else, you know.   .   .” When asked when he saw the defendant hitting the plaintiff, he replied that he saw this as he came around the car. He could not remember whether the defendant was punching the plaintiff or elbowing him, but there were punches thrown.

1. He was asked in cross-examination (at the committal) what he could actually see from where he was. He demonstrated a process of moving his shoulders backwards and forwards alternately, and said that it was hard for him to say that there were punches thrown because he did not recall, but he drew the conclusion from what he saw that the defendant had thrown some punches.

1. Arthur also gave evidence at the criminal trial. He said that he and the defendant were still good friends, and visited each other at their houses.

1. He was asked (at the trial) about the incident upstairs in the restaurant at the Hellenic Club. He said that he saw the plaintiff put his arms around Dimitri and pick him up to move him away from the scene. He saw the defendant attempt to take the plaintiff off Dimitri. He did not see either the plaintiff or the defendant assault or punch each other. He said that the defendant left the restaurant after this incident with Dimitri.

1. He was asked whether he saw the plaintiff again that evening. He said that he saw him walk out of the front door of the club with his mother. He saw this from his position in the passenger seat of the defendant’s car. He did not think the plaintiff looked in their direction or saw him.

1. Next, the plaintiff drove to a position almost adjacent with the defendant’s car. He stopped and got out. He made his way around the back of the defendant’s vehicle. Arthur got out of the car and moved around in the same direction, following the plaintiff. When he came around to the driver side of the car, his mother was in front of him. The plaintiff was on the ground with the defendant on top of him. He was asked what the defendant was doing, and said that he did not know or could not remember. He tried to break them up. He said this was, “just out of instinct, I guess, just to break up a fight, I guess.” He did not see the fight start. He saw movement on the ground and thought that the defendant might have been attacking the plaintiff. His initial instinct was to get them apart. He did not at any stage see the plaintiff attacking the defendant. He did not see any injuries on the plaintiff until after the incident had ended when he saw blood on the plaintiff’s face.

1. In cross-examination at the criminal trial, Arthur said that he managed the family restaurant and that the plaintiff was employed as the chef at that restaurant so that they saw each other five days a week and were on good terms.

1. Arthur agreed that he did not enjoy the situation he was in of having to give evidence about either the plaintiff or the defendant, who were both friends and men he regarded highly. It was an uncomfortable position for him.

1. Arthur Yianoulakis was cross-examined before me as to the evidence he had given at the committal proceedings and at the trial. His answer was, “well, from that position, it was punching or elbowing, but upon getting closer, I knew that he was punching him.”

1. His previous evidence was put to him again, and senior counsel for the defendant suggested that he could not remember if the defendant had been punching the plaintiff or elbowing him. His response was that it had been one or the other.

1. A little later in his evidence, he said that the defendant had been still punching as he was pulling the defendant and the plaintiff apart outside the club. He confirmed that he had not seen the plaintiff holding the defendant by the throat at any stage.

1. Subsequently during the cross-examination, Arthur Yianoulakis conceded that an answer he had given at the criminal trial in this court had not been a truthful answer. He had answered the question in the way he had because he had been in a difficult position. He had been a close friend of the defendant. He said that he was giving truthful evidence before me. The answer which he identified as untruthful was to the question, “Nick was on top of Steve.” Question: “And what was Nick doing?” Answer: “Don’t know.” I take Arthur to have been saying that he had not wanted to give evidence in front of the judge and jury which might have been disadvantageous to the defendant in criminal proceedings, and elected to say that he did not know what the defendant had been doing, rather than to give truthful evidence as to what he had observed the defendant doing.

1. In the course of the cross-examination of Arthur by senior counsel for the defendant, following an explanation I had given him about his right to do so, he objected to answering a question. A portion of the evidence he had given at the criminal trial was put to him, and he agreed that the transcript correctly recorded the answers he had given. He was asked whether when he had given those answers he had been telling the truth. He objected to answering that question. After further submissions from counsel, I gave him a certificate under s 128 of the Evidence Act 1995 (Cth) and required him to answer the question. His answer was that most of the evidence he had given was truthful, but that his evidence had not been the whole truth. He did not accept that he had lied to the judge and jury, but he accepted that the evidence he had given at the criminal trial had been different to his evidence before me. The evidence did not enable me to understand precisely what evidence he had given at the trial which had been less than the entire truth. He was asked in re-examination whether he had done his best to tell the truth in his evidence before me, and he said that he had.

1. It does not appear to me that Arthur Yianoulakis had anything particularly to gain or lose by giving his evidence untruthfully. It seems to me that he saw himself as placed in a difficult position, being asked to give evidence in proceedings involving two people to whom he felt a degree of loyalty. I must take that into account in assessing the reliability of his evidence.

1. His mother, Alexandra (Aleka) Yianoulakis gave evidence. I had the benefit of a transcript of her evidence at the criminal trial, though not of any police statement or of her evidence at the committal.

1. Her evidence was given within eighteen months of the events at the Hellenic Club, whereas she did not give evidence before me until about six years after those events.

1. At the criminal trial, she said that there had been one other table at the restaurant upstairs, a party invited by the man who was to take over the restaurant. They had started earlier, and were finishing their meal by the time the Yianoulakis table was set up. Then three men came in and demanded dinner. She told them that the kitchen was closed. Eventually she agreed to make a simple plate, with some meat, cheese, bread and olives for them. After this, a problem started with the man who was to take over the restaurant, who began smashing plates. Mrs Yianoulakis called the duty manager to do something about this. Then, the three men who had arrived late became involved, and one of them started to abuse the staff. Her eldest son, Dimitri, went over to the table where the men were sitting to remonstrate with them. She and her husband went over and asked the man to leave their son alone. It was their last night at the restaurant. Then the plaintiff came over and hugged Dimitri to move him away from the argument. Nick ran over and, in her words, “he take Steve, and the three of them fell down on the floor, and we tried to divide them.” She said that she heard the plaintiff say to Dimitri, “I tried to help you to not be in trouble,” to which Dimitri replied, “Sorry, Steve, I didn’t know you were doing this.” Dimitri then said to the defendant, “What are you doing, mate?” The defendant did not reply, and soon afterwards, he and Dimitri left the restaurant.

1. A little later, the plaintiff told her that he was going home. She said that she would walk him to the carpark. She said that this was not unusual for her, but she said on that particular night she did not want anything else to happen. She walked him to the entrance of the club downstairs, and saw him walk to his car. She saw the defendant’s RAV 4 parked, and she saw the defendant in the driver seat. She did not at that point see anyone else in the car. She said that she held her breath in the hope that the plaintiff would not see the defendant. She then said, “Steve reversed his car to take the right exit, at the same time, my son come out from the Hellenic Club and goes to the bus interchange and on the way to the exit, Steve saw my son, so instead of turning to the exit, he’s turning close to the car.” She said that the plaintiff stopped his car with the engine running and the door open. She realised that he had seen the defendant. He went around the back of the defendant’s car. She decided to follow the plaintiff. She was very close behind him, she said less than half a metre. She said, “Steve goes to the driver and Nick goes out from the car and he’s punched him and both of them fall down.” She said the plaintiff was close to the door, and the defendant had his foot on the step at the driver’s door. She said, “Steve is really close to the door, Nick is – doesn’t have time to get out of the car and talk, whatever. It’s like the – it’s like attack happened the same time.” She said that she saw the defendant punch the plaintiff, and said that both of them fell down with the plaintiff on his back on the ground and the defendant on top of him. She said that she and her son tried to separate them and stop them from fighting. The plaintiff was holding his hands out to push the defendant away. The defendant was trying to punch him. After a time, she and her son succeeded in separating them.

1. In cross-examination (at the trial), she was asked about the incident upstairs in the restaurant. She was asked whether Dimitri had been struggling. She said, “Yes, maybe in – painfully.” She said that Dimitri had said to her the next day, “Gee, Steve is strong. It’s a little bit smash my – he kind of smashed my ribs. It’s going start to smash my ribs if you hold me much longer.”

1. She was asked about the defendant becoming involved in the situation. She said, “Nick grabs Steve from the neck.” Mrs Yianoulakis said that she was becoming very upset and screaming at the two. She said that the three men fell backwards onto their side.

1. She was asked why she walked towards the plaintiff and followed him when he got out of his car in the carpark downstairs. She said, “Because it’s going to happen fight.” She was asked why she was worried that a fight was going to happen. She said, “Because both of them, they have been fighting that night.   .   . Nick and Steve, because they’re men, and is a fight happen, so you know how the men they react, they doesn’t like to calm down the things they having and they go inside.” Subsequently in re-examination, she was asked how the defendant had managed to hit the plaintiff. She replied, “Because Steve is so close to the door, so the only way Nick can avoid him is to punch him in his eyes.”

1. In her evidence before me, Mrs Yianoulakis said that by November 2006 she had known the plaintiff for about two years. Asked to describe what had happened, she said that the plaintiff had got up from the table and gone to Dimitri, and grabbed him to move him backwards. The defendant had then run behind the plaintiff, “and put his hand in the neck and pull against him.” She said that the defendant jumped behind the plaintiff and “grab him from the neck like this and pull him towards to his body.” She demonstrated this by placing both of her hands to her throat, slightly overlapping, and pulling her head back.

1. In her evidence about the incident in the carpark, Mrs Yianoulakis added to what she had previously said that she heard the plaintiff say to the defendant as she walked round the car and the plaintiff was quite close to the driver’s door, “Why you do this, mate?” Immediately after this, the defendant stepped onto the step below the driver’s door and punched the plaintiff who fell backwards. The defendant then jumped on top of him and started punching him. She said that she saw a lot of punches. The whole incident occupied less than five minutes before she and Arthur succeeded in separating the men. The defendant then got into his car and drove quickly out of the club carpark, leaving the plaintiff on the ground, in the same position. He had fallen when punched. She saw that he had facial injuries and was bleeding above the left eye. With help from club staff, she gave him water to drink and wiped his face. A little later she went back with the plaintiff to her house at Mawson, in the plaintiff’s car with the plaintiff driving. She got him a clean T-shirt and put an ice pack on his forehead, where he had a huge lump. Eventually the plaintiff left and drove himself home.

1. She saw the plaintiff the next morning at the hospital. He looked worse than the night before. His left eye was the colour of liver and his forehead was very swollen. He had bruising around the neck and scratches to the forehead. He also had a swollen left ear.

1. The plaintiff began working with the Yianoulakis family at their downstairs restaurant at the Hellenic Club in February 2007. In cross-examination, before me, Mrs Yianoulakis said that she regarded him as one of the family.

1. She agreed that she had never previously given evidence about the plaintiff saying anything to the defendant at the door of his car immediately prior to being punched.

The defendant’s evidence

1. The defendant gave evidence at the criminal trial in March 2008, and before me in December 2012. He was born in December 1984. He was 21 at the time of the events of November 2006, and is now 29. His father is a general medical practitioner at Batlow in New South Wales, and his parents live there. The defendant went to school and university in Canberra. He started a law degree but did not finish it, eventually graduating in marketing and advertising at the University of Canberra. He has been in a relationship with his partner Jenna for some eleven years.

1. At the criminal trial the defendant gave evidence that he had been a friend of the Yianoulakis family since about 2001 when he and Dimitri were at secondary college together. He went to the restaurant on the night in question at the invitation by telephone of Arthur. He knew the plaintiff already. He said that he did not drink alcohol on the night, though he bought drinks for others there. His evidence was that he bought the plaintiff a double Chivas on the rocks, and he bought a round of shot drinks for the others.

1. When he got there, there were a number of people at the Yianoulakis table. There was a Greek band playing. There was another table for the people who were taking over the restaurant, and a third table with some Greek men.

1. After a time, he recalled a conflict developing between one of the Greek men and the Yianoulakis family. All of them were speaking in Greek. Neither the defendant nor the plaintiff spoke or understood Greek.

1. It was clear to the defendant that the tone was aggressive. He saw his friend Dimitri arguing with one of the men. Dimitri was behaving aggressively. He saw the plaintiff get up and go over, and pick Dimitri up from behind in a bear hug under his arms. He saw the plaintiff lift Dimitri so that his feet were off the floor, and walk him away from the situation. He heard Dimitri say, “Steve, let me go. I can’t breathe.” The defendant thought that Dimitri was panicking, and that he seemed to be in pain. He and some of the other guests went over to the plaintiff and Dimitri. Dimitri was trying to wriggle out of the plaintiff’s grip, but without any success. The defendant said that Dimitri was getting louder, his skin colour was changing, and he could not breathe. He saw Dimitri elbow the plaintiff in the face. He then grabbed the plaintiff’s right arm, and they all fell to the floor together with the defendant on the bottom and the plaintiff on top. He said that the fall hurt him. He was holding onto the plaintiff’s arm. Dimitri was pulled up by his mother, leaving the defendant and the plaintiff on the floor. The defendant said that the plaintiff was trying to “wriggle out of it.” He said to the plaintiff, “Steve, I’m not trying to fight you.” He said that the plaintiff then turned around and started to hit him. The defendant said, “It ended by a lady who was at the other side of the table coming and picking me up off the ground.” He then left via a set of back stairs with Dimitri and another friend.

1. They dropped Dimitri off at his parents’ home and returned to the Hellenic Club to pick up the friend’s car. When they got back, the defendant spoke to Arthur Yianoulakis via mobile phone, and Arthur asked him to wait downstairs while he came down. While he was waiting, he saw the plaintiff and Mrs Yianoulakis walking out of the glass front doors of the club. They remained together for half a minute to a minute. The defendant said that he looked at the plaintiff, and the plaintiff looked at him. Arthur then came to the defendant’s car. The defendant saw the plaintiff walk away from the front door into the carpark. Arthur got in to the passenger side of the car, and they talked about where they would go next. The passenger door was not closed. The windows were open.

1. The defendant said that he saw a light in his rear view mirror and looked back to see the plaintiff’s car, which he recognised. The plaintiff pulled up on the passenger side of his car. The plaintiff got out, leaving the engine running and the headlights on, and came around the back of the defendant’s car at a semi-gallop. The defendant said that he panicked. Asked why, he said, “He was hitting me upstairs, what was he coming there for?” The defendant opened his door to get out. He said that as he got out the plaintiff grabbed him by the throat. The defendant then hit him. He was asked why he did so. He replied, “What else could I do? I panicked. I hit him.” He said that they fell to the ground with the defendant on top. He could not get off because the plaintiff was holding him. The defendant said that he kept hitting the plaintiff, “trying to push off into him.” He said to the plaintiff, “Steve, let me go. I’m going to keep hitting you.” The plaintiff did not loosen his grip. Eventually Arthur grabbed the defendant by the waist and separated them. The defendant got into his car and left immediately. He said that he was scared: “What if he got up again? I was worried.”

1. In cross-examination (at the trial), the defendant accepted that at the beginning of the upstairs incident the plaintiff had been trying to take Dimitri away from the altercation and to avoid trouble. He agreed that the plaintiff had not been aggressive towards Dimitri, but he said that he changed his mind when he heard Dimitri say that he could not breathe. He denied grabbing the plaintiff by the throat, and said that he had taken him by his right arm to pull him back, using a lot of force. He repeated that while he and the plaintiff were on the floor the plaintiff had hit him. He said that he did not hit the plaintiff back, and denied that being hit made him angry. He said that the plaintiff punched him two or three times in the face, and that these were heavy and forceful blows.

1. The defendant gave evidence about the carpark incident to the same effect before me. He said that he had hit the plaintiff about five times, hard, in the face. He said that the plaintiff had hold of him around the neck and throat, and that he told the plaintiff to let go, or otherwise he would keep hitting him. This continued until they were pulled apart by Arthur and his mother. The defendant then left immediately in his car, because he was scared that the plaintiff was going to get back up and bash him. He said that the plaintiff had not said anything to him at the door of the car.

1. While astride the plaintiff, the defendant had his knees on the ground. His knees became swollen, bruised and grazed. When he got home, his partner Jenna took him to hospital but there was too much of a queue at the emergency department and they went back home, where she put some ointment on his lip and ice on his knee. He had some bruising and graze marks around his neck and to his right eye. His evidence was that some time later he developed alopecia, that is loss of hair on the head in patches, which he had been told was caused by stress. He said that the next day they went to a doctor at a medical centre. He had seen a number of psychologists and psychiatrists and had had treatment by a dermatologist.

1. The defendant said that the incident had had a big impact on his life, and that he had been in and out of depression. He discontinued his law studies. He was informed that he would be unable to practise as a lawyer if he had a criminal conviction. In the event he was acquitted by the jury at his trial.

1. Instead, the defendant completed a degree in advertising and marketing, and at the time of trial had begun another course in media production.

1. During cross-examination counsel for the plaintiff put to the defendant that during the upstairs incident, when the defendant got up the plaintiff remained on the floor. The defendant’s answer was that this was not so, and the plaintiff had got up and stood in a doorway so that the defendant could not get past him. That was the reason the defendant had gone out via the back stairs. The doorway where the plaintiff stood was about twenty metres from the defendant. The defendant said that he left the club at that point, and did not approach the plaintiff because he was scared. He felt intimidated.

1. The defendant conceded that it was possible that the evidence he had just given (in December 2012 before me) was the first time he had ever said to anyone that the plaintiff had got up and stood in a doorway to block his path.

1. It was put to the defendant that the record at the doctor at the general practice he had been to was that he had attended on Wednesday 29 November 2006, three days after the events, rather than the next day. The defendant said that it had definitely been the day after the incident and there must have been a mistake in the doctor’s records.

1. He agreed that the next time he had attended that practice had been in December 2008, more than two years later. He was unable to explain why the attendance record on 29 November 2006 made no mention of bruising or abrasions to the top of the right eye or swelling or bruising to the nose. He said that the alopecia had not developed until after he was charged by police some months later.

1. He volunteered that the reason he had not been back to the practice in Canberra could have been the fact that his father, a general practitioner, had been attending to his injuries. He was asked whether, if he had received any treatment in the days and weeks following the event, it would have been by his father. His answer was, “No, I don’t believe so, but it could have been the case, I can’t remember, it was too long ago.”

1. A little later during the cross-examination, the defendant said, “Obviously I didn’t go back to Stevens because the injuries went away, everything was all right.”  (Dr Stevens was the doctor he saw in the days after the events at the Hellenic Club.)

1. He said that his father referred him to a psychiatrist, Dr Gupta, in Canberra because he was concerned about the defendant’s depression. He had also seen a psychologist, Dr Robert Blake of Wagga Wagga. He agreed that he had not been referred to Dr Blake by a doctor, and had seen him of his own volition. He agreed that he asked Dr Blake to write a report for his solicitors.

1. He was asked whether he had been in employment at all during the 2008-2009 financial year. He recalled that he “did have a job somewhere, maybe the Ainslie Football Club.” He said that he thought that he started that job after he saw Dr Blake.

1. He thought that he had told Dr Blake that he had travelled to London and New York and Los Angeles within the previous few months. His recollection was that Dr Blake had advised him to start working, and perhaps to go for an overseas trip. When it was put to him that he had already been for the trip and had not told Dr Blake about it, he said that he thought the trip had been after he saw Dr Blake.

1. He was asked whether he had told Dr Gupta about his trip overseas. His answer was, “I believe I did, I believe I may have, I can’t remember.”

1. He accepted that he saw Dr Gupta for the first time in May 2010. He was asked whether he told Dr Gupta that he had just come back from a second trip to America. He replied that he had only been to America once. He was asked whether he had been to Mexico in 2010, and said, “Sorry, my mistake, I apologise, yes.”

1. The defendant was shown a copy of his passport. He then agreed that he had travelled to the United States and to England during 2008, and that he had travelled to the United States and Mexico in March 2010. He first saw Dr Gupta in May 2010. He thought that he had told Dr Gupta about the second trip, or that he might have, but he said he could not remember.

1. The defendant was shown a folder containing colour reproductions of a large number of photographs taken during his overseas trips, which he had apparently produced as part of the discovery process. As he went through the photographs, he identified some where he thought he looked thin and sick. He said that when he went on the first trip, he was coming out of a period of depression, and the purpose of the trip was to get him over that period in his life so that he could continue his studies, get a job and move on with his life.

1. The defendant gave evidence that during 2008 he had a part-time job as a gardener. He was asked in cross-examination some further details about this. He said that he had been earning about $350.00 per week working with a company, Limad Pty Ltd, where he was still working. He was asked where the company carried on gardening work. He answered that it did so in Batlow and in Canberra. He was asked whether he knew who the shareholders and directors of the company were. He responded that his parents were. At that stage of his evidence I had the impression that his parents operated a company which provided gardening services to customers, and that the defendant was an employee of the company undertaking the physical work.

1. He was unable to explain how it had come about that his tax returns in those years gave his occupation as administrative assistant.

1. It was put to him that he had also worked at David Jones. He thought that he had done so at some earlier time than 2008 but accepted that if that was what the tax returns showed, it would be correct. He said that he had worked at David Jones in refrigeration sales, and that he had been functions manager at the Ainslie Football Club, at the same time he was working for the family company. When shown a copy of his tax return for 2007-2008, I thought his responses were somewhat evasive. He was asked whether he had signed the tax return before it was lodged. He initially responded that the tax return had been “done by my accountant”. When pressed as to whether he had signed it, he responded that the document in front of him had no signature on it.

1. The defendant also conceded, as reflected in his tax returns, that he had worked during 2007 for a company called Reflection Security Pty Ltd, doing security work.

1. He was asked whether he had helped a friend who was a builder on a project during 2009. He said that he could not recall. He had “done a lot of jobs to try and get out of the house”. It was possible that he had assisted a friend who was a builder but could not recall. He liked to help his friends. He might have been moving bricks, helping clean up, or helping with a trip to the tip.

1. He was asked whether he had worked on numerous building sites during 2009. He said that he could not remember. He had done a lot of things for a lot of friends, and some had been on building sites.

1. It was recorded in a note of Dr Blake’s of a session with the defendant in August 2009 that he had helped a friend who was a builder in Gungahlin and had witnessed a fight in the main street, following which he had to go home immediately. In cross-examination the defendant had no recollection of any such event, although he appeared to accept that it must have happened. He was unable to recall who the builder friend might have been. He said that he tried to forget a lot of things. By the time he was giving evidence, it was three years later and he had no recollection of any such incident.

1. There was some cross-examination about the defendant’s weight at different times in the past. He agreed that he had weighed about 73 kg when he saw Dr Gupta. I asked him what was the most he had ever weighed. He said it would not have been more than 74 or 75 kg. Counsel for the plaintiff then suggested to the defendant that he had told Dr Gupta that he had weighed 103 kg at some time in the past, and weighed 73 kg at the time of consultation, leading the doctor to believe that he had lost some 30 kg in body weight. He responded that when he was eighteen he had weighed as much as 110 kg. He said he had been a weightlifter and his weight had gone up and down considerably. It was put to him that he had been a professional or semi-professional footballer prior to the events of November 2006. He responded, “I wasn’t too bad at it”. He agreed that he had been very fit. He could not recall telling Dr Gupta that he was unemployed and could not recall whether or not that would have been true at the time.

1. The defendant was asked where he had gone when he left the club after the second incident in the carpark. He said that he thought he had gone straight home. He could not remember if he had been anywhere else first. He had woken his partner Jenna. He thought he had told her what had happened, but might have kept it to himself because he did not like to worry her. He thought he had shown her his injuries, but might have kept the detail to himself. He said that she had attended to his injuries. If she had asked how he had got them, he would have avoided answering. Asked about his memory, he said, “Well, everything to do with this case, I’ve tried to get over, I’ve tried to forget, because it’s been a whole lot of rubbish, the whole thing from start to finish. I’ve had defend myself three times now.”

1. The defendant’s partner Jenna Fitch was called. She is a personal trainer with experience in power lifting. Her evidence was that she went to bed alone on the night of 26 November 2006. She was woken during the night by the defendant. He told her that he had been in a fight. She observed scratches on the left side of his neck with dried blood on them. He also had a split lip and a swollen knee. She put ointment on his lip from a first aid kit, and drove him to the Canberra Hospital at Woden, but they did not go in because it was obvious that the emergency department was far too busy. She drove him home and went back to bed. She got up and went to work early the next morning. The defendant was still asleep when she left. She got home in the middle of the morning and saw that his knee was still bruised and swollen, his neck was red and inflamed and his lip was split. She decided to take him to the doctor. She took him to the Valley Medical Centre. He went in by himself. She waited for him and drove him home. She did not remember what time they went to the medical centre.

1. Over the next few days she took photographs illustrating his injuries, but they were subsequently wiped from her computer inadvertently, she thought by the defendant’s brother.

1. She recalled that police came to their home about six months later and subsequently the defendant was charged.

1. She was asked what changes she had noticed in the defendant since the events of November 2006. She said that he was in and out of bouts of depression. He did not sleep. He lost hair on the back of his head and he bit his fingernails. She did not remember how long after the incident he lost his hair, but he went to a doctor and got some treatment. The hair grew back after a few months. He was still by the time of the hearing a different person, staying by himself, not talking and not wanting to leave the house. This had affected their relationship.

1. Ms Fitch gave evidence that on 19 September 2009 she went to a gym at Phillip for a power lifting competition. She saw the plaintiff there. He was in the pin-loaded weights room doing inclined bench presses. She saw him do two or three repetitions. She said that there were five or six stacks of weights on the bench press, weighing 30-40 kg. She had previously used the machine herself. She recognised the plaintiff. She said that he saw her. She put her bag in the change room and came out with her camera, but the plaintiff had left.

1. She was asked about the 2008 overseas trip. She said that she and the defendant had been away for five or six weeks. She said that it had been her idea, and she paid for it, an amount of $10,000.00 to $12,000.00. She was asked whether the defendant had paid her back in relation to that, and her answer was, “Not yet.” She said that after the trip he was back to his old self, but this lasted only a month or so before he went back into his depressed state.

1. The defendant went overseas again in 2010 with friends. She and his parents paid for that trip. The defendant had not paid her back.

1. Again, the plaintiff was much better after the 2010 trip, but this lasted for only a month or two before he descended into his previous depressed and reclusive state.

1. Ms Fitch agreed in cross-examination that the weights she had seen the plaintiff lifting had not been particularly heavy of a man of his size. During the time she had known the defendant, his weight had fluctuated between his weight at the time of trial of 67 – 68 kg and about 76 – 80 kg when she first met him twelve years earlier. She did not think it possible that he had ever weighed as much as 110 kg or even 103 kg. She had never known him to be as heavy as that and had never seen photographs consistent with that sort of weight.

1. She said that on the night of the defendant’s injuries he told her that he had been in a fight with the chef of the restaurant at the Hellenic Club, but did not go into any further detail, and they never discussed the circumstances again, neither in the leadup to the criminal prosecution, nor the hearing of the civil action. I should say I found that, and still find it, highly improbable.

1. Ms Fitch said that she had not been asked to remember precisely when it was that she took the defendant to the Valley Medical Centre until about 2011, about five years afterwards. She would not accept that she might have been mistaken about taking him on the day following the injury. She had a clear recollection that it had been on that day. She could not remember any detail about any other treatment he might have had over the six months after that. She was aware that at some point he had been to a psychologist but could not remember when that was. She did not remember meeting Dr Roger Blake, psychologist. She had heard his name, but said that she had not met any of the defendant’s doctors. She could not remember any details about when he was in employment. She knew that at one time he worked as a function supervisor at the Ainslie Football Club but did not know when. She remembered that at one time he had worked at David Jones, but again did not have any recollection of the dates.

1. She was aware that the defendant did gardening work. He kept some gardening equipment in a shed at their home. He had told her that he did the work at his parents’ home at Batlow and at a house owned by his parents at Red Hill. Her understanding was that he only did gardening at those two properties of his parents, and did not have any other customers. Unfortunately, neither counsel nor I had asked the defendant that question. The defendant seems to have been extremely well remunerated by his parents’ family company for the gardening work, causing me some suspicion that the arrangement may have had some tax benefit for the family. I am not satisfied that the amounts shown in the tax returns as having been earned by the plaintiff for gardening work reflected the commercial value of the work he did, although I am satisfied that he carried out some gardening work at his parents’ properties from time to time.

The medical evidence for the plaintiff

1. Most of the medical evidence was in documentary form. Two doctors gave oral evidence: Dr Graeme Griffith, a consultant surgeon who saw the plaintiff at the request of his solicitors for a medico-legal report; and Dr Geoffrey Stubbs, an orthopaedic surgeon who saw him for the defendant’s solicitors.

1. Hospital records confirm that the plaintiff attended on the morning of 27 November 2006: that is, the morning after the claimed assaults. X-rays of his left shoulder and facial bones showed no obvious fracture or dislocation. A history was recorded that the plaintiff had been punched on the left side of the face repeatedly. He had a swollen face on the left side, and pain and limited range of movement in the left shoulder. He gave a history of no loss of consciousness. There were minor scratches on his face, and periorbital bruising with a sub-conjunctival haemorrhage around the left eye, and swelling around the left side of the jaw. He was given analgesics and allowed to leave.

1. The plaintiff had been a patient of the Isabella Plains Medical Centre since 1999. He was seen at that practice by Dr Oon on the day after the events at the Hellenic Club. He gave a history of having been assaulted, injuring his left shoulder. He had limited range of movement. Dr Oon was concerned that he may have torn tendons within the shoulder joint and referred him for an MR arthrogram. He also had bruising and abrasions to the face.

1. He had previously been referred to Dr Robert Creer, orthopaedic surgeon, for a tear of the left medial meniscus, and had an appointment for arthroscopic surgery on the knee in March 2007. Dr Oon gave the plaintiff a referral to Dr Creer in relation to his shoulder as well. He said that the shoulder injury would have restricted the plaintiff from performing work above shoulder height. He thought that surgery on the shoulder might eventually become necessary.

1. The reports of the radiologists were in evidence. A CT scan of the brain was essentially normal, but the arthrogram of the left shoulder revealed a small full thickness tear of the supraspinatus tendon, at least 15 mm in length, and a possible partial thickness tear of the subscapularis tendon.

1. On 12 March 2007 Dr Creer proceeded with the planned surgery to the right knee, which was successful, but the plaintiff did not have any further treatment to the left shoulder at that time.

1. I had the benefit of a report from the plaintiff’s treating psychiatrist, Dr Robert Tym. Dr Tym had been treating the plaintiff since 2000. The plaintiff had been diagnosed by a previous psychiatrist in 1998 with attention deficit disorder and was on medication for that condition. It appears that the medication kept the symptoms of the condition under control and allowed the plaintiff to live a generally normal life.

1. Dr Tym saw the plaintiff in May 2007 and February 2008 for renewal of the prescriptions for his medication, but the plaintiff did not raise any issue about the claimed assault in November 2006. He mentioned this to Dr Tym for the first time in September 2008. He complained of flashbacks of his experience during the assault, causing physical anxiety, sweaty palms and an increased heart rate, accompanied by hallucinatory visual images. He told Dr Tym that since the assault he had experienced a change in his demeanour. He tried to avoid talking about the incident because it tended to trigger flashbacks. He tended to avoid the carpark at the Hellenic Club. He complained of recurrent headaches. He had increasing difficulty in going to sleep, and increased irritability with occasional outbursts of anger. He said that he had marked difficulty in concentration, and always felt on edge and hypervigilant. He had been taking an anti-depressant drug, but found that this had not had any significant effect on his symptoms.

1. Dr Tym thought that the plaintiff had symptoms of post-traumatic stress disorder. He treated the patient with a form of rapid eye movement treatment.

1. When Dr Tym saw the plaintiff next at the end of October 2008, the flashbacks had been eliminated but the patient remained highly anxious and severely depressed. He complained of persisting shoulder pain which had originated at the time of the assault, then two years earlier. Dr Tym thought the plaintiff was developing a major depressive disorder, which had been triggered by the prolonged psychological stress of the post-traumatic stress disorder symptoms and the shoulder pain. Dr Tym doubled the dose of the plaintiff’s anti-depressant. He saw the plaintiff again in November 2008, shortly prior to the report. His opinion was that the mental trauma of the assault had caused his post-traumatic stress disorder, from which he had probably recovered, but he had been left with a major depressive disorder which was far more difficult to eradicate.

1. In October 2009, the plaintiff was seen by another orthopaedic surgeon, Dr Geoffrey Stubbs, for a report for the solicitors of the defendant.

1. It is apparent from Dr Stubbs’ report that he was provided with background material by the solicitors, but his report does not identify precisely what was given to him. I did not have the benefit of any instructing letter from the solicitors. It is accordingly unclear to me whether the history which Dr Stubbs sets out in the report was a history which he took from the plaintiff in the course of the consultation, or whether some or all of that history was provided to him by the solicitors.

1. The plaintiff told Dr Stubbs that he was taking Mersyndol, a chemist analgesic, for shoulder pain as he needed to. His symptoms were exacerbated by his work as a chef, particularly at weekends. He complained of aching discomfort in the left shoulder which interfered with his sleep and caused pain with a variety of daily activities.

1. Dr Stubbs found that the plaintiff was 175 cm tall and weighed just over 100 kg. He was not particularly fat. His body weight represented well-developed musculature around the shoulders and trunk. His general appearance was of a man who had much more involvement in body-building than he had given in his history. He found that the plaintiff had a full range of movement in both shoulders.

1. Dr Stubbs could not tell from the MR study whether the tear was recent or might have been there for some years without causing symptoms. He referred to a note in a file of the plaintiff’s general practitioner in June 2002 of an x-ray and ultrasound on the right shoulder, where a radiologist had noted scarring to the supraspinatus tendon and a probable previous tear of the tendon. The symptoms had apparently been persistent enough to require a steroid injection in August 2002.

1. Unsatisfactorily, although this documentation was provided to Dr Stubbs, it was not tendered in evidence before me. I note in any event that it related to the right shoulder.

1. Dr Stubbs found a note by a general practitioner in October 2005 to the effect that the left shoulder was painful, with crepitus present, but with a full range of movement. Again, no such note was in evidence before me.

1. Dr Stubbs accepted that a full thickness tear of the left supraspinatus tendon could well be associated with a heavy fall. He noted, at the same time, that the plaintiff was not presently greatly troubled by the tear, in that he was doing his usual work full-time as a chef, and was able to go to the gym and do weight exercises. Although he complained of symptoms, he had not had any active treatment, suggesting that the left shoulder was not troubling him much at that time.

1. Dr Stubbs explained that the tendons in the shoulder tended to break down with age, but that most people suffering from degenerative changes in the tendons did not have disabling symptoms. By the age of sixty, about thirty percent of people had tears but no symptoms. The tears resulted from age and not necessarily from trauma. The incidence was not affected by gender, hand dominance or occupation. The tears were frequently bilateral. Tears might become larger in an unpredictable manner. The larger they got, the more likely they were to cause symptoms. Dr Stubbs said that it was thought that eventually people with a tear in a tendon in one shoulder would probably develop a tear in the other. Most tears caused minimal symptoms. In older patients the onset of symptoms usually occurred with normal daily activities, but with younger patients it was more likely to be associated with specific injury or trauma such as a fall. The plaintiff’s claim of developing symptoms after the alleged assault was therefore a reasonable one.

1. Dr Stubbs accepted the plaintiff’s complaints of pain and restriction of movement, but thought that he generally had function and that there was no need for treatment at the time he saw him. The tear might become larger with time, causing further symptoms. It was very likely that the plaintiff would develop symptoms in either or both shoulders which would interfere with his work. He said that medically the question of whether the symptoms in his left shoulder had developed solely because of the fall could not be clearly determined, because the MR scan did not tell him whether the tear had already been present before the fall.

1. I have the benefit of two reports by massage therapists. Ms Thoroughgood of Woden Remedial Therapies reported in October 2009. She saw the plaintiff a number of times commencing in May 2007 for massage therapy for pain in the neck, upper and lower back, both legs, and the shoulders and arms, particularly the left shoulder.

1. She saw him shortly before the report, I gather, after a lapse of a lengthy period, for further treatment for pain in the left shoulder and neck. The plaintiff expressed concern to her that the pain had become so severe that he was concerned that he would not be able to continue his work as a chef, which was all he had done for the past thirty years. She noted that the rotator cuff muscles of the left shoulder had undergone tissue damage and had developed into scar tissue, including the supraspinatus and subscapularis muscles. She explained that scar tissue was an important part of the initial healing process, but if too much bleeding occurred into the tissues at the time of trauma, this led to excessive amounts of scar tissue forming. With chronic inflammation, more scar tissue formed, and this hardened over time. In an extreme case, of which the plaintiff’s shoulder was an example, the tissue calcified and became as hard as bone.

1. Senior counsel for the defendant made much of differences in the evidence of Arthur Yianoulakis at the committal proceedings, the criminal trial, and in the present proceedings. It does seem to me that I should not place a great deal of weight on Arthur’s evidence about contentious matters. I accept that he regarded himself as having been placed in a difficult situation. At the criminal proceedings and at the trial he was being called to give evidence for the prosecution against a close personal friend who was at risk of being convicted of a serious criminal offence. At the same time, the victim and complainant to the police was an employee of his parents and a family friend. By the time he gave his evidence before me, he was not as close to the defendant and perhaps closer to the plaintiff, and neither party was at risk of a criminal conviction. Arthur conceded that in some of his evidence in the criminal proceedings he had answered questions in such a way as to avoid telling the whole story. I thought that by the time he was giving evidence before me he was probably doing his best to give truthful evidence, but I regard the evidence as unreliable. He was giving evidence five years after the event, and he had given different versions at earlier times, which I am not satisfied were completely accurate. For those reasons I do not propose to take his evidence into account for the benefit of either party.

1. The evidence of Mrs Yianoulakis was also attacked by senior counsel for the defendant as lacking credibility by reason of inconsistencies with evidence she had given at the criminal trial. At the time of the events, she was reasonably close to the plaintiff, at that stage a former employee who continued to help out from time to time at her restaurant. The defendant had had a joint twenty-first birthday party with one of her sons only a few months earlier, but she was not personally close to the defendant. Unlike Arthur, I did not form the view that she was conscious of any moral dilemma about giving truthful evidence at the trial. To the extent that there was inconsistency between her evidence at the trial and before me, I would tend to prefer the evidence at the trial because she was giving her recollection of events within about sixteen months of the assaults. By the time she gave evidence before me, it was six years afterwards. Her memory of events is likely to have been very much better in March 2008.

1. I did not find the defendant a credible witness. He purported to have a clear recollection of the events at the Hellenic Club, but often in the course of cross-examination took refuge in an inability to remember in avoiding answering difficult questions.

1. I am sure that his recollection would have been better when he gave evidence in the criminal trial in March 2008 than when he gave evidence in the proceedings before me in December 2012. There is no statement in evidence any earlier than the criminal trial, and indeed no suggestion in the evidence that any earlier statement is in existence.

1. An example of a piece of factual evidence which I think has been affected by the passage of time and the fading of memory rather than anyone intentionally giving false evidence relates to the position of Dimitri’s arms in the bear hug. Both the plaintiff and Dimitri gave evidence that the bear hug went around the plaintiff’s arms, which were held to his side. The defendant’s evidence, at the criminal trial and before me, was that the bear hug was under the arms with the arms free. I prefer the evidence of the plaintiff and Dimitri to that of the defendant about this issue, but see it as a mistake made by the defendant by reason of the reliability of memory after a long period, rather than as detrimental to the defendant’s credibility as an honest witness.

1. There is no corroboration for the defendant’s evidence that Dimitri complained while in the bear hug that he could not breathe, although the defendant gave that evidence at the criminal trial as well as in cross-examination before me. I reject the defendant’s evidence that Dimitri complained that he could not breathe, and I reject his evidence that he observed a change in the plaintiff’s colour while in the bear hug. The evidence I reject may well be due to reconstruction in the defendant’s mind.  I do not attribute to him any intention to give false evidence about it, but I prefer the evidence of the plaintiff and Dimitri himself as to this factual issue.

1. The defendant’s credibility was to my mind seriously damaged by the false or at least incomplete history which he gave to the psychologist Dr Blake. The defendant referred himself to Dr Blake in April 2009. He presented as someone who was scarcely able to leave his house, let along engage in employment. He did not tell Dr Blake that he had been able to hold down employment at David Jones, the Ainslie Football Club and Reflection Security Pty Ltd. He did not tell Dr Blake that he had been earning not insignificant amounts as an employee of a family company doing gardening work. He did not tell Dr Blake that he had travelled to England and the United States. It appears to me that he brought Dr Blake into the matter to provide him with a report to bolster his case in relation to damages, and that he deliberately gave Dr Blake a false history and a false picture of his condition.

1. Where the defendant’s evidence is inconsistent with the plaintiff’s evidence about what happened at the Hellenic Club, I prefer the evidence of the plaintiff.

Findings of fact in relation to liability

1. There is no real dispute that the plaintiff went over to Dimitri, placed him in a bear hug and moved him away from an altercation with a patron at the restaurant. There is no issue about the fact that his motivation was simply to extricate Dimitri from a situation which might lead to a physical fight. I am satisfied that the plaintiff wanted to protect Dimitri from being injured. I am satisfied that he had no intention of causing any injury to Dimitri, and that he did not do so.

1. It seems to me that the defendant misunderstood or misjudged what was happening. He may well have thought that the plaintiff was hurting his friend Dimitri. The plaintiff was a much bigger man and would undoubtedly have been capable of hurting or injuring Dimitri if he had set out to do so. I am satisfied that the defendant made physical contact with the plaintiff and that the effect of that physical contact was that he and the plaintiff fell to the floor. The plaintiff did not see this coming and certainly did not consent to it. He did not immediately realise who it was who had assaulted him. It is unnecessary for me to make specific findings as to precisely how the defendant grabbed the plaintiff and precisely how they fell to the floor. All of this happened in a very short space of time.

1. The evidence does not enable me to make specific findings of fact about these matters. It would be somewhat surprising if the evidence was sufficiently detailed to permit me to do so. I reject the defendant’s evidence that the plaintiff punched him while they were on the floor at the restaurant upstairs at the Hellenic Club. I accept the plaintiff’s evidence that he fell on his elbow. I am satisfied that it was the fall on to the left elbow which caused the injury to the left shoulder which could be seen on the radiological scans the following day.

1. I am not satisfied that the plaintiff suffered any injuries to his face or neck or throat in the course of the upstairs incident, other than an immediate sensation of choking and being unable to breathe at the time. I cannot be satisfied that any of the bruising or other injuries that are evident in the photograph were due to anything that happened during the upstairs incident.

1. I find that the plaintiff did not see the defendant in his car as he walked out the door of the club downstairs. I find that as he was driving out of the club carpark, he saw and recognised the defendant’s car, and decided to stop, get out and remonstrate with the defendant about the upstairs incident. I am not satisfied that he formed at that moment any intention to assault or batter the defendant, but I am satisfied that he decided to engage with the defendant in a situation which a reasonable person in his position would have realised carried a real prospect that it would result in a physical fight. The plaintiff was clearly in a highly emotional state at the time. He got out of his car leaving the engine running, the lights on and the door open. He came around the back of the defendant’s car to the driver’s side door, intent upon provoking a situation which had a very real prospect of descending into a physical fight.

1. I am satisfied that at about the same time the defendant realised that the plaintiff had stopped his car and got out, and was intent upon a confrontation. I am satisfied that the defendant decided to throw the first punch. I am not satisfied that he did so in self-defence. If he did, it was considerably in excess of such physical force as might have been necessary to defend himself.

1. I am satisfied that following the first punch, the plaintiff ended up on the ground and the defendant leapt on top of him and astride him, and began to punch him in the head and face. I am not satisfied that the plaintiff did anything further other than by way of self-defence, putting his hands in front of his face, and then grasping the defendant to pull him towards him to prevent him from throwing further punches.

1. My analysis of the incident in the carpark is that both the plaintiff and the defendant entered into a physical confrontation, either intentionally or recklessly as to what might happen. I am satisfied that each of them voluntarily got into and remained in the situation which turned into a physical fight. In these circumstances, each of them is to be seen as having consented to such injuries as might be sustained in the course of such a fight.

1. I am satisfied that it was during this confrontation that the plaintiff suffered most, perhaps all, of the injuries to the head, face, ear and neck which can be seen in the photographs and are recorded in the notes of his hospital attendance the next morning. He is not entitled to succeed against the defendant in respect of those injuries, nor is the defendant entitled to succeed against him in relation to such injuries as he suffered.

1. In summary, in the course of the upstairs incident, the defendant assaulted and injured the plaintiff. The plaintiff is entitled to damages for the injuries occasioned during that assault. The plaintiff did not assault the defendant during the upstairs incident.

1. In the carpark incident, both parties voluntarily engaged in a physical fight, and neither is entitled to succeed in assault or battery against the other.

The plaintiff’s damages

1. The only injury I am satisfied that the plaintiff suffered in the upstairs incident was the injury to the shoulder caused by landing on his left elbow on the floor. In relation to that injury, I generally accept the evidence of Dr Griffith. His opinion is not really contradicted by Dr Stubbs, the defendant’s orthopaedic expert. I am satisfied that the plaintiff had a vulnerable but asymptomatic left shoulder, and that the injury during the upstairs incident caused tears to the supraspinatus and subscabularis tendons.

1. I am satisfied that in the course of  unscrewing a tight jar lid, the plaintiff caused further injury to one or both of those tendons, which would not have occurred if it had not been for the injury at the Hellenic Club. In the circumstances, the jar incident was not a novus actus interveniens breaking the chain of causation. The fact that the plaintiff might engage in an everyday activity such as unscrewing a jar lid is to be seen as a foreseeable consequence of the defendant’s act which was at least a cause and probably the principal cause of the damage to the shoulder which ultimately required surgery.

1. Fortunately the surgery has been successful. The plaintiff had about twelve weeks off work, but had made a good recovery within about six months of the operation.

1. A number of disabilities were listed in the statement of particulars, including headaches, anxiety and depression, but counsel for the plaintiff did not address on these disabilities. I think in any event that they probably flowed entirely from the injuries which the plaintiff sustained during the carpark incident, not from his fall upstairs where his main immediate concern was about his choking and shortness of breath. It is significant that the police prosecution seems to have related solely to the carpark assault. I suspect that in the immediate aftermath, the plaintiff saw the carpark assault as causing him his serious injuries, and that it was only after the jar lid incident that he realised that his really significant injury arising out of the whole series of incidents at the Hellenic Club was the shoulder injury.

1. The evidence is that the plaintiff was earning $930.00 nett per week at the time of his surgery. He may have been earning something more than that, by way of undeclared cash payments, but the claim for loss of earnings is limited to the documented figure. For past loss of earnings, I allow $11,160.00. The surgery was performed in March 2010. The award for loss of earnings attracts interest at commercial rates, for which I allow $4,000.00. I am not satisfied that any claim has been made out for loss of earning capacity for the future.

1. Although the plaintiff’s wife did not give evidence, I am satisfied that he had, during the recuperation period, a need for assistance in looking after himself and doing things around the house, for which I allow about an hour a day at $25.00 per hour. I allow $2,000.00 for that component, plus interest at commercial rates of $700.00.

1. I am satisfied that Ms Howland performed massage therapy on the plaintiff without charge about once a fortnight for three years, the commercial rate for that service being $75.00 per hour, and the sessions lasting usually at least an hour. The plaintiff is entitled to the commercial value of those services, notwithstanding that he did not have to pay for them. For those services I allow $6,000.00 plus interest at commercial rates of $2,000.00.

1. There was no agreement between the parties as to treatment expenses, but a bundle of accounts and receipts was tendered without objection. Clearly some of them do not relate to the shoulder injury, and I do not allow those. The accounts and receipts which relate to the shoulder injury on my calculation amount to $5,911.25, plus chemist expenses which are a little difficult to work out, but clearly justify some allowance, enough to take the figure up to $6,000.00, which I allow. That figure attracts interest at commercial rates for which I allow $2,000.00.

1. I make no allowance for future treatment expenses or future care.

1. Counsel for the plaintiff submitted that the appropriate allowance for general damages, should I find in the plaintiff’s favour, was $60,000.00 to $70,000.00. Senior counsel for the defendant made no contrary submission. That suggested range seems to me justifiable on the evidence. For general damages for pain and suffering and loss of enjoyment of life I allow $65,000.00. I apportion $50,000.00 to the past and allow interest at the approved notional rate of $7,500.00.

1. The individual components of the damages award are as follows:

General damages Interest on past proportion	$65,000.00 $7,500.00
Treatment expenses Interest	$6,000.00 $2,000.00
Loss of earnings Interest	$11,160.00 $4,000.00
Gratuitous care – family Interest	$2,000.00 $700.00
Gratuitous care – massage Interest	$6,000.00 $2,000.00
TOTAL	$106,360.00

Damages – defendant

1. In case I am found to have been in error in dismissing the defendant’s claim, it is appropriate for me to undertake a provisional assessment of the damages I would have awarded to him.

1. I am satisfied that the defendant saw his general practitioner, Dr Stevens, shortly after the assaults. I prefer the contemporaneous written records from the practice which show the time and date of the consultation as 7:45 pm on Wednesday 29 November 2006, to the oral evidence of the plaintiff and his partner six years later, that the consultation was two days earlier. The difference is insignificant except insofar as it illustrates the unreliability of memory after a lapse of some years. The note taken by Dr Stevens records that he gave the defendant a referral for an MRI scan of the left knee, but there is no evidence that the plaintiff ever underwent the procedure. He did not attend at the practice again for two years.

1. He gave evidence that his father, a general practitioner at Batlow, treated him and prescribed medication for him. The father was not called to give evidence, and no report by the father was tendered. I must draw the inference that the evidence of the defendant’s father would not have assisted his case.

1. The episode of alopecia which the defendant attributes to the assault did not take place until November 2007, a year after the assault. This was a month or two after the committal proceedings, and I infer after the defendant had been committed for trial. It was about four months before the trial. I accept the opinion evidence of Dr Miller that the condition is frequently precipitated by stress and anxiety. Dr Miller did not make any note of any history of any particular stressors. Having regard to the timing of the episode, it seems to me highly unlikely that it was caused by the assault itself, and far more likely that it was a reaction to the criminal proceedings. I am not satisfied that the defendant, if successful in the counterclaim, would be entitled to recover damages for the alopecia in those circumstances. In any event he seems to have made a reasonably quick and complete recovery from that condition.

1. The psychiatric and psychological treatment provided to the defendant did not happen until April 2009 through to December 2010. As I have said, I am not persuaded that the treatment provided by Dr Blake during 2009 was for a genuine psychological condition. To the extent that it may have been, I am satisfied that it was not for any condition caused by the assault itself, by reason of its onset so long after the events of November 2006.

1. In those circumstances, the defendant’s damages would have been limited to compensation for grazing to both knees, a minor injury behind the left ear and some minor soft-tissue injuries to the neck, the left shoulder and the right wrist. In the context that the injuries required one visit to the general practitioner, and were not thought by the defendant to justify the MRI scan for which he had been referred, I would have awarded general damages of $2,500.00. This award would carry interest, at the approved notional rate, of $800.00, making a total of $3,300.00. There is no evidence to justify any award of special damages.

Conclusion

1. There will be judgment for the plaintiff for $106,360.00. There will be judgment for the plaintiff on the counterclaim. I shall make an order that the defendant pay the plaintiff’s costs. I shall order a stay of the costs order for fourteen days in case either party wishes to make application for a different order for costs. I recognise that there may be facts relevant to costs which are not known to me. Any such application may be made informally by email to the list clerk with a copy of the email to the other side, within that fourteen day period. If such notice is received, I shall make an order in chambers extending the stay until further order of the court.

I certify that the preceding two-hundred-and-sixty-eight (268) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master Harper.

Associate:

Date: 27 June  2014

Counsel for the plaintiff:  Mr J Pappas
Solicitors for the plaintiff:  Ben Aulich & Associates
Counsel for the defendant:  Mr FJ Purnell SC

Solicitors for the defendant:  Nicholl & Co.
Date of hearing:  4, 5, 6 October 2011; 3, 4, 5, 6 December 2012
Date of judgment:  27 June 2014