District Court New South Wales Medium Neutral Citation: Cho v Dayoub [2024] NSWDC 97 Hearing dates: 6, 7, 8, 9 and 17 November 2023 Date of orders: 9 April 2024 Decision date: 09 April 2024 Jurisdiction: Civil Before: Coleman SC ADCJ Decision: See paragraph 604 Catchwords: TORT – intentional tort – whether Plaintiff proves disputed allegations – credibility of parties – whether conduct proved by Plaintiff constitutes trespass to the person, assault on Plaintiff and/or battery of Plaintiff on the occasions alleged by her – whether tortious conduct of Defendant was intended to cause injury to the Plaintiff within the meaning of s 3B(1)(a) of the Civil Liability Act 2002 – whether damages to which the Plaintiff establishes an entitlement are assessed pursuant to the Civil Liability Act or the common law – nature, seriousness and likely duration of any injury from which Plaintiff suffers – whether tortious conduct of Defendant caused any injury, loss or damage suffered by Plaintiff – whether any injury, loss or damage suffered by Plaintiff caused by or referable to any pre-disposition of Plaintiff to suffer injury, loss or damage – whether later attack on Plaintiff by third party aggravated Plaintiff's condition or extended its likely duration – whether Plaintiff has suffered any past or present economic loss or will suffer such loss in future as a result of tortious conduct of Defendant – remoteness from tortious conduct of Defendant of any past, present or future alleged economic loss suffered by Plaintiff – quantum of any general damages to which the Plaintiff entitled – whether Plaintiff entitled to aggravated and/or exemplary damages – quantum of aggravated and exemplary damages – costs Legislation Cited: Civil Liability Act 2002 (NSW), ss 3B, 11, 21 and 28 Civil Procedure Act 2005 (NSW) Crimes Act 1900 (NSW) Crimes (Domestic and Personal Violence) Act 2007 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW), s 9(1)(b) Evidence Act 1995 (NSW), ss 79 and 140 Cases Cited: A v N [2012] NSWSC 354 Appleton v Garrett [1996] PIQR 1 Bennett v Minister of Community Welfare (1992) 176 CLR 408; [1992] HCA 27 Blacktown City Council v Hocking [2008] NSWCA 144 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Browne v Dunn (1893) 6 R 67 (HL) C Van der Lely NV v Bamfords Limited (1963) RPC 61 Carter & Anor v Walker & Anor [2010] VSCA 340 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Coote v Kelly [2013] NSWCA 357 Croucher v Cachia [2016] NSWCA 132 Darby v Director of Public Prosecutions (2004) 61 NSWLR 558; [2004] NSWCA 431 Dasreef Pty Limited v Hawchar (2011) 243 CLR 588; [2011] HCA 21; (2011) 277 ALR 611; (2011) 85 ALJR 694 Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc (2020) 103 NSWLR 658; [2020] NSWCA 294 Fagan v Metropolitan Police Commissioner [1969] QB 439 Fede v Gray by his Tutor NSW Trustee and Guardian [2018] NSWCA 316 Fontin v Katapodis (1962) 108 CLR 177 Fox v Percy (2003) 214 CLR 198; [2003] HCA 22 at [20] Gautam v Health Care Complaints Commission [2021] NSWCA 85 Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187 Gray v Motor Accident Commission (1998) 196 CLR 1 HG v The Queen (1999) 197 CLR 414; (1999) 73 ALJR 281 Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168 Irlam v Byrnes [2022] NSWCA 81 Jones v Dunkel (1959) 101 CLR 298 Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349 Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47 Lane v R [2013] NSWCCA 317 Lim v Cho [2018] NSWCA 145 Louis v Commonwealth (1987) 87 FLR 277 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 Manly Council v Byrne and Anor [2004] NSWCA 123 Mansour v Marhop Pty Limited [2023] NSWDC 476 Mason v Demasi [2009] NSWCA 227 Musa v Alzreaiawi [2021] NSWCA 12 Nguyen v Tran [2018] NSWCA 215 Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 Payne v Parker [1976] 1 NSWLR 191 PP v DD (No. 20) [2021] NSWSC 1312 Project Blue Sky Inc v Australian Broadcasting Association (1998) 194 CLR 355; [1998] HCA 53 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34 Rixon v Star City Pty Limited (2001) 53 NSWLR 98 Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48; (2005) 221 ALR 32; (2005) 79 ALJR 1534 Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 Spedding v State of New South Wales [2022] NSWSC 162 State of New South Wales v Ibbett [2005] NSWCA 445 State of New South Wales v McMaster [2015] NSWCA 222 State of New South Wales v Riley (2003) 57 NSWLR 496 State Rail Authority of New South Wales v Chu [2008] NSWCA 14 Stillwell Trucks Pty Limited v McKay & Ors [2002] NSWCA 292 Tame v New South Wales; Annetts v Australian Stations Pty Limited (2002) 211 CLR 317; [2002] HCA 35; (2002) 149 AR 449; (2002) 76 ALJR 1348 TCN Channel Nine Pty Ltd v Anning [2002] NSWCA 82 The Nominal Defendant v Cordin [2017] NSWCA 6 Uren v John Fairfax & Sons Pty Limited (1966) 117 CLR 118 Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44 Watson v Foxman (1995) 49 NSWLR 315 Watts v Rake (1960) 108 CLR 158; [1960] HCA 58 West v Mead [2003] NSWSC 161 Wilkes v Wood (1763) 98 ER 489 Category: Principal judgment Parties: Plaintiff: Joanne Cho Defendant: Salem Dayoub Representation: Counsel: Plaintiff: Mr C Locke Defendant: Mr B Necovski Solicitors: Plaintiff: Oliveri Lawyers Defendant: CK Lawyers File Number(s): 2020/195447 Publication restriction: None INDEX Background Paragraph 2 Parties' pleadings Paragraph 31 Issues for determination Paragraph 72 Basis of assessment of plaintiff's damages if liability established Paragraph 73 Evidence Paragraph 76 Credit Paragraph 83 The evidence of the plaintiff Paragraph 104 The evidence of Woo Hiun Kim Paragraph 195 The evidence of Angelo Nadis Paragraph 201 The evidence of the defendant Paragraph 208 The incident on 28 August 2019 Paragraph 227 The incident on 2 November 2019 Paragraph 231 The incident on Christmas Eve 2019 Paragraph 237 Findings with respect to the events of Christmas Eve 2019 Paragraph 267 Whether the Plaintiff's claim is governed by the Civil Liability Act 2002 (NSW) Paragraph 282 Whether the plaintiff suffers from a psychiatric or psychological condition Paragraph 324 Clinical records of Dr Meyerowitz and reports of Associate Professor Allan Paragraph 326 Reports of Ms Barbara Preston Paragraph 364 Wesley Hospital records Paragraph 368 Medico-legal reports of Dr Roldan Paragraph 377 Medico-legal reports of Dr Parmegiani Paragraph 392 Medico-legal reports of Dr Roberts Paragraph 415 Cross-examination of Dr Parmegiani and Dr Roberts Paragraph 425 Dr Parmegiani's evidence in cross-examination Paragraph 430 Dr Roberts' evidence in cross-examination Paragraph 452 Parties' submissions with respect to medico-legal evidence Paragraph 465 Findings with respect to medico-legal evidence Paragraph 503 Damages – the parties' submissions Paragraph 514 Damages – consideration Paragraph 535 Aggravated damages Paragraph 549 Exemplary damages Paragraph 559 The plaintiff's economic loss claims Paragraph 571 The plaintiff's out of pocket expenses claim Paragraph 598 Conclusion Paragraph 601 Interest Paragraph 602 Costs Paragraph 603 Orders Paragraph 604 Judgment 1. By Amended Statement of Claim filed 9 March 2023, particulars of which were filed on 3 February 2023, Joanne Cho (the Plaintiff) sought that Salem Dayoub (the Defendant) pay her compensatory damages for assault, battery and trespass to the person; aggravated and exemplary damages for assault, battery and trespass to the person; damages for past, present and future economic loss; interest calculated in accordance with the Civil Procedure Act 2005 (NSW) and costs. By Second Amended Defence filed 27 October 2023, the Defendant sought dismissal of the Plaintiff's Amended Statement of Claim. Background 1. In order to appreciate the issues for determination in the light of the parties' pleadings, some brief uncontroversial background to the proceedings is instructive. 2. For some time prior to late 2014 the Defendant lived at 10 Loch Lomond Crescent, Burraneer (Number 10), with his family. The Defendant continues to live at Number 10. In late 2014, the Plaintiff and her husband acquired, and moved into 12 Loch Lomond Crescent, Burraneer (Number 12). They continue to live at Number 12. The two properties adjoin, and comprise substantial residences with expansive water views over Burraneer Bay. A masonry wall separates the properties. The events which gave rise to these proceedings occurred whilst the parties were on their own premises. 3. On or about 1 April 2016, the Plaintiff purchased a property 24 Conrads Road, Mount Warrigal (Mount Warrigal). On 12 February 2018, the Plaintiff purchased a property 102 Shellharbour Road, Warilla (Warilla). Each of those properties was leased to tenants during the Plaintiff's ownership of them, the former being residential premises, the latter being let to a commercial entity. The properties are relevant to the Plaintiff's claim for economic loss. 4. Prior to mid-2019, although never "friends", the parties lived peacefully in their respective homes. Neither interfered with the other's quiet enjoyment of her/his home. 5. In July 2019, the Defendant erected a vertical steel beam immediately adjacent to the boundary wall between his and the Plaintiff's properties. On 30 July 2019, the Plaintiff complained to the Sutherland Shire Council ("Council") about the works which the Defendant had commenced. The Plaintiff made essentially two complaints, each of which appears to have had substance. The first was that the steel beam was impermissibly close to the boundary between the parties' properties. The second was that the works which the Defendant had commenced building, a shade cloth structure, required, but lacked, council approval. The Defendant did not have, or obtain council approval until quite some time later, inferentially as a result of the Plaintiff's complaint to the Council. The incident marked the commencement of an unfortunate and increasingly acrimonious relationship, which culminated in the events of Christmas Eve 2019. Those, and events which the Plaintiff alleged had occurred from August 2019 gave rise to the present proceedings. 6. On 30 July 2019, there was an exchange of words between the parties across their dividing boundary wall, each party remaining on her/his property . Although the topic of conversation is not in doubt- the Defendant's shade cloth construction- what was actually said is controversial. 7. On 26 August 2019, there was a further exchange of words between the parties, the Plaintiff's nephew and the Defendant's son across the dividing boundary wall. The Plaintiff and her nephew remained on her property. The Defendant and his son remained on the Defendant's property. That event is the basis of the first assault alleged by the Plaintiff. The Defendant denied that he committed any assault on that occasion. 8. In late August 2019, the Plaintiff made further complaints to the Council about the works which the Defendant was apparently continuing to undertake on his property. 9. On 27 September 2019, the Plaintiff received email advice from the Council that it had advised the Defendant to cease the building works on his property until development consent was obtained. The evidence does not establish that the Defendant did further work on the shade cloth shelter at that time, or until after the events of relevance in this case had occurred. 10. On 28 September 2019, the Plaintiff observed several broken eggs around her property. The Plaintiff alleged that, although neither she nor her husband or any witness in her case saw him do so, the Defendant was responsible for the broken eggs on her property. The Defendant denied ever having thrown eggs onto or around the Plaintiff's property. The Plaintiff alleged that, between 28 September and 25 December 2019, she found approximately 100 broken eggs around her property. No witness gave evidence in the Plaintiff's case of having seen the Defendant do anything with eggs. The Defendant denied responsibility for the eggs being there. 11. On 30 September 2019, the Plaintiff found multiple holes which had apparently been drilled into the tyres of a vehicle owned by her or her husband which was parked on the street in the vicinity of the Plaintiff's home, which she alleged was the work of the Defendant. No witness in the Plaintiff's case gave evidence of having seen the Defendant interfering with the tyres of any vehicle of the Plaintiff or her husband. The Defendant denied responsibility for any damage to any motor vehicle of the Plaintiff or her husband. 12. On 1 October 2019, the Plaintiff discovered holes which had apparently been drilled into a PVC sewerage pipe at the rear of her property, and was sprayed with fluid escaping from the pipe through such holes, which she alleged was the work of the Defendant. No witness in the Plaintiff's case gave evidence of having seen the Defendant doing anything of the kind alleged by the Plaintiff. The Defendant denied that he was responsible for any of the damage allegedly suffered by the Plaintiff. 13. On 4 October 2019, the Plaintiff discovered that a three metre section of boundary fence had been removed and placed on her property, damaging the handrail on wooden stairs at the rear of her property. The Defendant admitted that he had engaged a contractor to replace the wooden section of fence with metal fencing at his sole expense. The Defendant said that he was not present when the work was done by the contractor, and was not responsible for the placement of any timber on the Plaintiff's property. There is no reason to doubt the reliability of the Defendant's version of that event. Photographic evidence produced by the Plaintiff provides support for her claim with respect to the placement of timber fencing material on her property, but creates no obstacle to acceptance of the Defendant's account of this event. 14. On 23 October 2019, the Plaintiff discovered that cables for a CCTV camera focused on the front courtyard of her property had been damaged. The Plaintiff alleged that the Defendant was responsible for such damage. No witness in the Plaintiff's case claimed to have seen the Defendant damaging the Plaintiff's cables. The Defendant denied responsibility for any damage to the cables. 15. On 2 November 2019, there was an incident across the dividing boundary wall, involving the Plaintiff, her friend, Mr Angelo Nadis, and the Defendant. The Plaintiff and Mr Nadis remained on the Plaintiff's property. The Defendant remained on his property. This incident is the basis of the second assault alleged by the Plaintiff. The Plaintiff alleged that the Defendant sprayed her with a garden hose. The Defendant denied that he had done so. 16. On 17 November 2019, the Plaintiff discovered metallic shavings spread across her courtyard and the roof of her garage. The Plaintiff alleged that the Defendant was responsible for the shavings being placed on her property. No witness in the Plaintiff's case claimed to have seen the Defendant doing so. The Defendant denied that he was responsible for any metal shavings being on the Plaintiff's property. 17. Late on the evening of 24 December 2019, the Defendant, whilst standing on his rear balcony, sprayed the Plaintiff, who was standing within the bounds of her property, with water through a garden hose on a number of occasions. During the course of the incident the Plaintiff alleged that the Defendant said words to the effect of "You fucking crazy bitch, I want to kill you" on a number of occasions. The Defendant denied using those words. He could not deny the hosing, which was captured on the Plaintiff's CCTV. The Plaintiff alleged that, during the incident, the Defendant threw stones at or towards her on a number of occasions. The Defendant denied having done so. The exchanges between the parties continued until early into 25 December 2019. Throughout these reasons, the Court will refer to the events of late 24 and early 25 December 2019 as the events of Christmas Eve 2019. 18. On 26 December 2019, police attended the Plaintiff's premises in response to a complaint made by the Plaintiff with respect to the events of Christmas Eve 2019, which gave rise to the Plaintiff's trespass, assault and battery claims. Police charged the Defendant with offences under the Crimes Act 1900 (NSW) and the Crimes (Domestic and Personal Violence) Act 2007 (NSW). 19. In January 2020, the Plaintiff complained to her general practitioner, Dr Meyerowitz, about anxiety and depression which she alleged were referrable to the conduct of the Defendant on Christmas Eve 2019, and was referred to a psychologist. 20. On 26 January 2020, the Defendant climbed on the boundary wall between the parties' properties. His doing so is not a pleaded part of the Plaintiff's claims. 21. Between March and early June 2020, the Plaintiff found a number of white landscaping pebbles around her property similar to those which she alleged had been thrown during the evening of 24 December 2019. No witness in the Plaintiff's case gave evidence of seeing the Defendant doing anything of the kind alleged by the Plaintiff. The Defendant denied having thrown stones, or done any of the things alleged by the Plaintiff. 22. On 24 April 2020, the Plaintiff sold Mount Warrigal. 23. On 2 July 2020, the Plaintiff commenced the present proceedings. 24. On 23 July 2020, the Plaintiff was admitted to Sutherland Hospital, and on 27 July 2020 was admitted to Wesley Psychiatric Hospital. 25. On or about 20 August 2020, the Plaintiff suffered injuries at the hands of a random attacker and was hospitalised. 26. On 4 October 2020, the Defendant climbed on the boundary wall between the parties' properties. His doing so is not a pleaded part of the Plaintiff's claims. Later that month the Plaintiff was readmitted to Wesley Psychiatric Hospital for a period of 10 days. 27. On 5 November 2021, the Defendant was found guilty of common assault on 24 December 2019, and received a conditional release order pursuant to s 9(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW). 28. On 17 November 2021, the Plaintiff was readmitted to Wesley Psychiatric Hospital where she remained until 11 January 2022. 29. On 24 November 2021, the Plaintiff sold Warilla. The Parties' Pleadings 1. The Plaintiff alleged (paragraph 1 of the Amended Statement of Claim ("ASOC")) that on or about 26 July 2019 the Defendant erected two beams in the backyard of his premises and that (paragraph 2 ASOC) one of the two beams was located within one metre of the boundary between the property of the parties. The Defendant admitted those allegations. 2. The Plaintiff alleged (paragraph 3 ASOC) that she and her husband obtained a copy of the local council regulations and, on 30 July 2019, the Plaintiff's husband informed the Defendant that one of the two beams he had erected was too close to the boundary and in breach of council regulations. The Defendant did not admit those allegations in his Second Amended Defence but, at the hearing, did not dispute those allegations. 3. The Plaintiff alleged (paragraph 4 ASOC) that the Defendant said to her husband that he would not move away and would not cut the offending beam. The Defendant did not admit those allegations but, at the hearing, neither of those contentions was disputed. 4. The Plaintiff alleged (paragraph 5 ASOC) that on or about 5.00 p.m. on 26 August 2019 she was in the backyard of her home in the company of Woo Hiun Kim. The Defendant admitted that at the time the Plaintiff alleged, he had observed her in her backyard with another person who he was not able to identify. At the hearing it was not in dispute that the person who was present with the Plaintiff in her backyard was Mr Kim, the Plaintiff's nephew. 5. The Plaintiff alleged (paragraph 6 ASOC) that she said to the Defendant words to the effect that one of the beams had been erected by him in breach of local council rules and that the Defendant (who was in the company of his son) said to her in a loud voice words to the effect of "It will not go well for you if the council gets involved". The Defendant denied that he said those words. 6. The Plaintiff alleged (paragraph 7 ASOC) that she then said to the Defendant words to the effect of "What do you mean by that?", to which the Defendant allegedly replied "You will see, just wait and find out", called her a "fucking stupid woman" and then threw several objects violently against the boundary wall. The Defendant alleged that, whilst remaining on her own side of the wall, the Plaintiff held a mobile phone towards him which appeared to the Defendant to be being used to film him, and that he asked the Plaintiff to "leave me alone" and "go away", but that the Plaintiff refused to stop and said to him "What are you doing?" and "I'm going to call the Council on you". The Defendant admitted that he called the Plaintiff words to the effect of "a fucking crazy stupid bitch", but did so in response to the Plaintiff's alleged conduct, and without intending to cause injury to the Plaintiff. 7. The Plaintiff alleged (paragraph 8 ASOC) that on the morning of 28 September 2019 she observed broken eggs in the front courtyard area, backyard, and on the garage, on her motor vehicle and on her husband's motor vehicle. The Defendant did not plead to those allegations on the basis that they contained no allegations against him. At the hearing, the Defendant maintained his innocence with respect to these allegations. No witness in the Plaintiff's case attested to having seen the Defendant doing anything with eggs at any time. 8. The Plaintiff alleged (paragraph 9 ASOC) that from 28 September 2019 to 25 December 2019 she discovered approximately 100 broken eggs in various locations around her property. The Defendant did not plead to the Plaintiff's allegations as they did not contain allegations against him. At the hearing the Defendant maintained his innocence with respect to these allegations. No witness in the Plaintiff's case attested to having seen the Defendant throwing or doing anything with eggs on any occasion. 9. The Plaintiff alleged (paragraph 10 ASOC) that, on or immediately prior to 30 September 2019, the front and rear tyres of a motor vehicle owned by her were damaged by the drilling of multiple holes in the front driver's side tyre and in the rear driver's side tyre. The Defendant did not plead to those matters as they did not contain allegations against him. At the hearing the Defendant maintained his innocence with respect to these allegations. No witness in the Plaintiff's case attested to having ever seen the Defendant doing anything to a motor vehicle owned by the Plaintiff or her husband. 10. The Plaintiff alleged (paragraph 11 ASOC) that on or immediately prior to 1 October 2019 a sewage pipe on her property had been damaged by the drilling of several holes into it, and by damage to a rubber connecting ring, and that the supply of electricity to the sewerage system had been disconnected. The Defendant did not plead to those allegations, because they contained no allegations against him. At the hearing the Defendant maintained his innocence with respect to these allegations. No witness in the Plaintiff's case attested to ever having seen the Defendant do anything of the kind alleged by the Plaintiff. 11. The Plaintiff alleged (paragraph 12 ASOC) that when she reconnected the plug to restore power to the sewerage system she was sprayed with effluent and ( paragraph 13 ASOC) that she and her husband were unable to use any plumbing on their property until it was repaired 3 days later. The Defendant did not plead to any of those matters as they did not contain allegations against him, but maintained his innocence with respect to them. 12. The Plaintiff alleged (paragraph 14 ASOC) that prior to 2 October 2019 a 3 metre section of boundary fence between the parties' properties was removed without her consent and planks from the fence were deposited onto the backyard of her property. The Plaintiff further alleged that she found several broken eggs in the front yard of her property on that day. The Defendant admitted that a section of boundary fence had been removed by a contractor retained and paid for by him, but said that it was old and that he replaced it with a new fence. The Defendant maintained his version of events at the hearing, and denied that he was responsible for any broken eggs being on the Plaintiff's premises. 13. The Plaintiff alleged (paragraph 15 ASOC) that during the morning of 2 November 2019 the Defendant drove his motor vehicle onto the footpath in front of the Plaintiff's husband's motor vehicle and said to him words to the effect "Have you called me?" to which the Plaintiff's husband allegedly replied "No, I have not spoken to you since 28th September". The Defendant denied those allegations. 14. The Plaintiff alleged (paragraph 16 ASOC) that the Defendant said to her husband words to the effect "If you do not stop, I will drill punctures in your van and I will fix your house, too". The Defendant denied those allegations. 15. The Plaintiff alleged (paragraph 17 ASOC) that on or about 2 November 2019 she was in the backyard of her home in the company of Angelo Nadis when the Defendant directed a powerful stream of water onto her and Mr Nadis. The Defendant denied those allegations. 16. The Plaintiff alleged (paragraph 18 ASOC) that during the course of the incident on 2 November 2019 the Defendant said to her words to the effect of "You are a fucking idiot, bitch, slut" and pointed at the Plaintiff and Mr Nadis with an extended finger in a manner mimicking the appearance of a pistol. The Defendant denied those allegations. 17. The Plaintiff alleged (paragraph 19 ASOC) that on the morning of 19 (or possibly 17) November 2019 she discovered aluminium shavings in her garage courtyard and on her garage roof and that, at approximately 8.30 a.m., the Defendant used a hose to spray aluminium shavings off the top of the boundary wall between the Plaintiff and Defendant's property into the Plaintiff's courtyard. The Defendant denied the Plaintiff's allegations. 18. The Plaintiff alleged (paragraph 20 ASOC) that she used a ladder to climb onto her garage roof to remove the aluminium shavings, in the course of which she slipped on the shavings and fell injuring her right arm and shoulder. The Defendant did not plead to those matters as they did not contain allegations against him. 19. The Plaintiff alleged (paragraph 21 ASOC) that on or about 10.45 p.m. on Christmas Eve 2019, while the Plaintiff was within her home, she heard the sound of a loud impact. The Defendant did not plead to those matters as they contained no allegations against him. 20. The Plaintiff alleged (paragraph 22 ASOC) that she walked to the front courtyard area of her home where she observed several broken eggs. The Defendant did not plead to those matters as they contained no allegations against him, but denied that he was responsible for any broken eggs being on the Plaintiff's premises. 21. The Plaintiff alleged (paragraph 23 ASOC) that, as she walked towards the rear of her property to inspect it for damage, the Defendant was standing on a balcony overlooking the Plaintiff's home, that the Defendant left the balcony briefly, returned holding a garden hose, said to the Plaintiff words to the effect of "You fucking crazy bitch, I want to kill you", and repeatedly directed powerful streams of water onto the person of the Plaintiff. The Defendant said that at the material time he was seated on his balcony, that there was a party and/or young persons congregated in the general vicinity of his and the Plaintiff's property, that he was approached by the Plaintiff who was standing in her backyard and accused of being responsible for the broken eggs found on her property, shined a torchlight at him and held a mobile phone which appeared to the Defendant to being used to film him. The Defendant said that he informed the Plaintiff that he had no role to play in relation to the broken eggs stating "I'm sitting here it's not me. Go and see the 20 or 30 kids outside", and repeatedly asked the Plaintiff to stop filming him and shining a torchlight at him by saying "Don't film me". The Defendant alleged that the Plaintiff did not cease to shine the torch at him or continue to film him, that he walked to another part of his balcony, retrieved his hose, again asked the Plaintiff to stop shining her torchlight at him and filming him or else he would spray her phone camera with water stating "Stop filming me" and "Remove the camera". The Defendant alleged that the Plaintiff refused to stop shining her torchlight at him and/or filming him whereupon he caused the hose to spray water at the phone the Plaintiff was holding. The Defendant admitted that water from the hose sprayed the Plaintiff but maintained that he had sprayed towards the Plaintiff's mobile phone to deter her or cause her to cease filming him and/or invading his privacy and that he did not do so with intent to cause any injury to the Plaintiff. The Defendant otherwise denied the Plaintiff's allegations. 22. The Plaintiff alleged (paragraph 24 ASOC) that she sought refuge from the violent conduct of the Defendant by retreating into her home, that the Defendant then directed powerful streams of water at the door by which the Plaintiff had re-entered her home so as to prevent the Plaintiff from using that door. The Defendant admitted that the Plaintiff re-entered her home but otherwise denied her allegations. 23. The Plaintiff alleged (paragraph 25 ASOC) that she subsequently used a different door to attempt to inspect the backyard, whereupon the Defendant threw several rocks at, or towards, the Plaintiff and repeatedly said to the Plaintiff words to the effect "You fucking crazy bitch, I want to kill you". The Defendant said that the Plaintiff had re-entered her backyard from the same door that she had used to enter her home and denied the allegations made against him. 24. The Plaintiff alleged (paragraph 26 ASOC) that the rocks thrown by the Defendant at or towards her cracked two stone courtyard tiles but did not strike the Plaintiff's person and that several stones also landed on the Plaintiff's roof causing dents in the Colorbond roofing. The Defendant denied that he threw rocks at or towards the Plaintiff and did not admit that the Plaintiff's premises sustained the damage alleged. 25. The Plaintiff alleged (paragraph 27 ASOC) that the Defendant then used the garden hose he was holding to direct powerful streams of water towards the Plaintiff's garage and a CCTV camera which the Plaintiff had mounted on her garage above the garage door. The Defendant did not admit such conduct. 26. The Plaintiff alleged (paragraph 28 ASOC) that she went outside her property to attempt to wipe the water off the lens of the CCTV camera, whereupon the Defendant again directed streams of water onto the person of the Plaintiff and after she retreated into her home the Defendant continued to direct streams of water onto the garage door for a protracted period of time. The Defendant did not admit those allegations. 27. The Plaintiff alleged (paragraph 29 ASOC) that since 24 December 2019 the Defendant had continued to throw stones at the Plaintiff's residence. The Defendant denied that allegation. 28. The Plaintiff alleged (paragraph 30 ASOC) that, by his conduct, the Defendant threatened, harassed, intimidated and terrorised her. The Defendant denied those allegations. 29. The Plaintiff alleged (paragraph 31 ASOC) that the Defendant's acts constituted assaults of and batteries against the Plaintiff and trespass to the person of the Plaintiff. The Defendant did not admit that any conduct admitted by, or proved against him constituted assaults or batteries or trespasses to the person. 30. The Plaintiff alleged (paragraph 32 ASOC) that each of the acts of the Defendant was intentional and done with the intent to cause injury to the Plaintiff. The Defendant admitted that his conduct in turning the hose on the Plaintiff was intentional, but denied that he had intended to cause injury to the Plaintiff or injury which is the subject of any claim by the Plaintiff. 31. The Plaintiff alleged that, as a result of the Defendant's conduct, she had suffered and continued to suffer loss and damage, particulars of her alleged injuries being: 1. major depression disorder; 2. adjustment disorder with anxiety and depressed mood; 3. mental anguish and suffering; 4. humiliation and indignity; 5. fear and distress of mind; 6. emotional distress. 1. The Plaintiff particularised her alleged disabilities as involving: 1. necessity for inpatient admission to Wesley Hospital for a period of 3 weeks for psychiatric care and treatment; 2. necessity for further inpatient hospital admission for a period of 2 weeks for psychiatric care and treatment; 3. pervasive and intense fear of assault, battery and verbal abuse by the Defendant; 4. pervasive and intense fear that the Defendant may carry out his verbal threat to kill her; 5. acute psychological distress as a result of assault, battery, verbal abuse and threats by the Defendant; 6. severe impairment of ability to leave her home by reason of fear of assault or battery by the Defendant; 7. severe anxiety; 8. panic attacks; 9. loss of appetite; 10. weight loss; 11. insomnia; 12. memory impairment; 13. severe impairment of ability to take part in social and recreational activities; 14. necessity for ongoing psychiatric, psychological, medical, pharmaceutical and other treatment; 15. impairment of earning capacity. 1. The Plaintiff particularised her claim for out-of-pocket expenses in the following terms: 1. by reason of the said conduct of the Defendant the Plaintiff has incurred expenses for medical treatment and psychological counselling, including the following: 1. consultations with Ms Barbara Preston, Psychologist, from 13 January 2020 until 5 June 2020 10 consultations at $130 per consultation (paid by Medicare); 2. consultations with Ms Barbara Preston, Psychologist, from 26 June 2020 until 17 July 2021 – 2 consultations at $130 per consultation; 3. consultations with Ms Barbara Preston, Psychologist, from 20 November 2020 to 19 January 2021 3 consultations at $130 per consultation (paid by Medicare); 4. consultations with Dr Zhen Zhang, Psychiatrist – 12 consultations at a total cost of $4,460 (total of $1,395.90 paid by Medicare); 5. consultations with Jun Mo Jeong, Psychologist, from 12 February 2021 to 27 October 2022 – 23 consultations at a total cost of $1,660 (total of $1,044.80 paid by Medicare); 6. admission to Wesley Hospital Kogarah, 27 July 2020 to 14 August 2020 – $500; 7. admission to Wesley Hospital Kogarah, 17 November 2021 to 11 January 2022 – $500; 1. in addition, the Plaintiff claims all monies paid by Medicare and refundable to Medicare Australia. 1. The Plaintiff particularised her claim for alleged future treatment expenses in the following terms: 1. by reason of the said injuries and disabilities, the Plaintiff will in the future continue to require psychiatric, psychological, medical, pharmaceutical and other treatment; 2. without derogating from the generality thereof, the Plaintiff will continue to incur the following expenses: 1. psychological counselling Jun Mo Jeong $170 per month; 2. psychiatric consultations Dr Zhen Zhang $380 per month; 3. medication $80 per month; 1. a claim for damages is made in respect thereof. 1. The Plaintiff particularised her claim for economic loss in the following terms: 1. by reason of the said injuries and disabilities, the Plaintiff has suffered and will in the future continue to suffer a loss of profits, a loss of capital gains, a loss of earning capacity, a loss of employment prospects in the open labour market, a loss of superannuation benefits, and a loss of other benefits including (but not limited to) long service leave; 2. as at July 2019 the Plaintiff was the sole registered proprietor of two investment properties in the Wollongong area (the properties); 3. the Plaintiff had purchased the properties for the purpose of deriving rental income therefrom, together with capital gains; 4. the Plaintiff was receiving rental income from the properties and was actively involved in the management of the properties; 5. by reason of the said injuries and disabilities suffered by the Plaintiff, she was unable to continue with the management of the properties, and the properties were sold in 2020 and 2021; 6. the Plaintiff suffered a capital loss in respect of the investment property that was sold in 2021, and a loss of prospects of realising a larger capital gain on the other investment property that was sold in 2020, and by reason thereof, the Plaintiff has suffered and continues to suffer a loss of rental income and capital gains as a result of the sale of the properties; 7. but for the said injuries and disabilities, the Plaintiff would have continued to own investment properties and to derive rental income and realise capital gains therefrom; 8. the Plaintiff makes a claim for past and future loss of rental income, the capital loss in respect of the investment property that was sold in 2021, the loss of prospects of realising a larger capital gain on the sale of the properties, and the loss of prospects of realising capital gains on investment property in the future; 9. the Plaintiff will require psychiatric, psychological, medical, pharmaceutical and other treatment in the future and claims economic loss in respect of the periods of such treatment and the convalescent periods subsequent thereto. 1. The Defendant did not admit that the Plaintiff suffered and/or continued to suffer injury, loss or damage, or was entitled to damages pursuant to any of the heads of damage relied by her. The Defendant denied that any injury, loss or damage suffered by the Plaintiff was caused by his conduct on Christmas Eve 2019 or otherwise. 2. The Plaintiff claimed (paragraph 34 ASOC) aggravated and exemplary damages, which were particularised in the following terms: 1. the Plaintiff was repeatedly assaulted, battered, subjected to repeated death threats, verbally abused, harassed, intimidated and terrorised by the Defendant in reckless disregard of her legal rights; 2. the Plaintiff was repeatedly assaulted, battered, subjected to repeated death threats, verbally abused, harassed, intimidated and terrorised by the Defendant without lawful justification and in contumelious disregard to the legal rights of the Plaintiff; 3. the Plaintiff relies upon paragraphs 6, 7 and 8 to 29 inclusive of this Amended Statement of Claim in respect of the said tortious conduct of the Defendant; 4. despite a finding of guilty having been made against the Defendant by Magistrate J Carney in Sutherland Local Court for assaulting the Plaintiff, and the Defendant being released on a conditional release order pursuant to s 9(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) on 5 November 2021, the Defendant has continued to repeatedly harass, intimidate and terrorise the Plaintiff in breach of the said conditional release order, without lawful justification and in contumelious disregard to the legal rights of the Plaintiff. 1. The Plaintiff particularised her claim for aggravated damages in the following terms: 1. the Defendant has failed and refused to apologise to the Plaintiff for his said tortious conduct towards her; 2. the Defendant has failed and refused to admit that he has engaged in the said tortious conduct towards the Plaintiff; 3. the Defendant has continued to harass, intimidate and terrorise the Plaintiff in breach of the said conditional release order, without lawful justification and in contumelious disregard to the legal rights of the Plaintiff; 4. in consequence thereof the Plaintiff has suffered and continues to suffer ongoing further and injury, loss and damage, including: 1. exacerbation and persistence of fear of assault, battery and verbal abuse by the Defendant; 2. exacerbation and persistence of acute psychological stress; 3. exacerbation and persistence of ability to leave her home; 4. exacerbation and persistence of severe anxiety; 5. exacerbation and persistence of panic attacks; 6. exacerbation and persistence of loss of appetite; 7. exacerbation and persistence of weight loss; 8. exacerbation and persistence of insomnia; 9. exacerbation and persistence of memory impairment; 10. exacerbation and persistence of impairment of ability to take part in social and recreational activities; 11. necessity for ongoing psychiatric, psychological, medical, pharmaceutical and other treatment; 12. exacerbation and persistence of impairment of earning capacity. 1. The Defendant denied that the Plaintiff was entitled to exemplary damages by virtue of s 21 of the Civil Liability Act 2002 (NSW), and did not admit any of the allegations otherwise made by the Plaintiff in support of such claim. 2. The Defendant's Defence raised (paragraph 35 Second Amended Defence ("SAD")) contributory negligence. That defence was not maintained at the hearing, presumably in the light of the decision of the Court of Appeal in Irlam v Byrnes [2022] NSWCA 81. 3. The Defendant maintained (paragraph 37 SAD) that the provisions of the Civil Liability Act 2002 (NSW) applied to the Plaintiff's claim. That remained a live issue at the hearing. Issues for determination 1. The issues for determination emerge from the pleadings as being: 1. whether the Plaintiff has discharged the onus of proof which she bears in respect of disputed issues of fact with respect to each of the occasions on which the Plaintiff alleged that she was the victim of trespass to the person, assault or battery by the Defendant; 2. whether such conduct as the Plaintiff establishes constituted trespass to the person of the Plaintiff, an assault upon the Plaintiff and/or a battery of the Plaintiff on any of the occasions alleged by her; 3. whether any tortious conduct proved against the Defendant caused the Plaintiff injury, loss or damage, and whether such conduct was the sole cause of such injury; 4. whether the any tortious conduct proved against the Defendant was intended to cause injury to the Plaintiff within the meaning of s 3B(1)(a) of the Civil Liability Act 2002; 5. whether the assessment of any damages to which the Plaintiff establishes an entitlement is pursuant to the Civil Liability Act or the common law; 6. the nature seriousness and likely duration of any injury which the Plaintiff is found to have suffered as a result of the tortious conduct of the Defendant; 7. whether any tortious conduct proved against the Defendant is causally connected to any injury, loss or damage found to have been suffered by the Plaintiff; 8. the extent to which any injury, loss or damage found to have been suffered by the Plaintiff as a result of the Defendant's tortious conduct was caused or aggravated by any pre-disposition of the Plaintiff to suffer such loss or damage; 9. the extent to which an attack on her by a third party in August 2020 aggravated or prolonged any injury, loss or damage suffered by the Plaintiff on Christmas Eve 2019; 10. whether the Plaintiff has suffered any past, present, or will suffer any future economic loss as a result of the tortious conduct of the Defendant; 11. the remoteness from the tortious conduct of the Defendant of any past, present or future alleged economic loss allegedly sustained by the Plaintiff; 12. the quantum of any general damages to which the Plaintiff is found to be entitled; 13. whether the Plaintiff is entitled to aggravated and/or exemplary damages. Basis of assessment of the Plaintiff's damages if liability established 1. In comprehensive written submissions filed on behalf of each party at the conclusion of the hearing, the Plaintiff particularised her damages on the basis that they were determined in accordance with the common law as: 1. general damages $200,000; 2. aggravated damages $20,000; 3. exemplary damages $5,000; 4. interest on past general, aggravated and exemplary damages $9,360; 5. past economic loss $97,334; 6. interest on past economic loss $2,515; 7. future economic loss $202,258; 8. future medical and other treatment expenses $91,845 (total $628,712, plus out-of-pocket expenses). 1. If the Plaintiff's damages were awarded pursuant to the provisions of the Civil Liability Act, the amounts claimed were: 1. non-economic loss damages $199,000; 2. past economic loss $97,334; 3. interest on past economic loss $2,515; 4. future economic loss $177,864; 5. future medical and other treatment expenses $51,420. 1. Although disputing that the Plaintiff was entitled to any damages, and without resiling from that contention, the Defendant ultimately submitted that the Plaintiff should be awarded $21,210 if the Plaintiff established liability, and her damages were governed by the provisions of the common law, which comprised general damages of $20,000 and past treatment expenses of $1,210. If any damages to which the Plaintiff was entitled were governed by the provisions of the Civil Liability Act, the Defendant submitted that the only recoverable loss or damage was the sum of $1,210 for past treatment expenses. Evidence 1. The Plaintiff filed a Tender Bundle (Exhibit P1) which contained the pleadings, medical reports of Dr Enrico Parmegiani, a medicolegal Psychiatrist who gave evidence on behalf of the Plaintiff, the Plaintiff's primary and subsequent Affidavit, Affidavits by the Plaintiff's husband, John Coolman, an Affidavit by Angelo Nadis and an Affidavit by Woo Hiun Kim. The Exhibit also comprised numerous receipts and other source documents. 2. As agreed with Counsel for the parties at the commencement of the hearing, although each of the parties' Tender Bundles was received in evidence, apart from source documents, and particularly the Plaintiff's medical and hospital records and NSW police records, the provenance of which was not controversial, the Court has relied only upon those documents to which it was expressly referred by counsel during the course of the hearing, or in the course of cross-examination where that was required. The Court is satisfied that neither party was in any doubt as to which documents were taken into consideration, and which documents were not. 3. The Plaintiff relied on CCTV footage of the events of 24 December 2019 (Exhibit P2). The CCTV footage was played during the course of the hearing during cross-examination of the Plaintiff, and later of the Defendant. Although the Court does not criticise Counsel for doing so, the footage was not then played sequentially from its commencement until its conclusion. As the transcript confirms, the Court experienced some difficulty in playing the CCTV footage of the events of 24-25 December 2019 from start to finish, as it needed to in order to properly evaluate the competing claims of the parties with respect to what occurred on Christmas Eve 2019. The Court subsequently, in response to its request, received, and has viewed the totality of Exhibit P2 from start to finish, for which it is grateful. 4. The Plaintiff's statement to police of 24 December 2019 was in evidence (Exhibit P3). A further medicolegal report of Dr Parmegiani of 6 November 2023 (Exhibit P4) was also relied upon by the Plaintiff. 5. The Defendant relied on a Tender Bundle (Exhibit D1) which contained two Affidavits sworn by him, Affidavits sworn by his wife, daughter and son, together with Affidavits sworn by Ali Salhab, Jason Stokes, Rosanna Martinelli and Susanna Martinelli. After objections, little remained in all but the Affidavits of the Defendant. Of what remained, little of the affidavits impacted materially on the determination of disputed issues. In those circumstances, apart from the Defendant, none of his witnesses was required for cross-examination. 6. Exhibit D1 also contained a number of medicolegal reports from Dr John Roberts and reports from Psychologist Dr Fernando Roldan. Drs Parmegiani and Roberts were both cross-examined at the hearing. Dr Roldan was not required for cross-examination on his reports. A number of other documents were also contained in the Defendant's Tender Bundle. 7. The Defendant also relied on documents contained in two volumes of cross-examination material (Exhibit D3). Properly, the Plaintiff did not suggest that the Defendant ought not be permitted to rely on any of the documents in those volumes. Reference will be made to such of those documents as the Court was referred to during the hearing in the course of reviewing the evidence of the parties. Credit 1. The credibility, or reliability of the evidence of the Plaintiff and, to a lesser extent, of the Defendant assume considerable significance in the determination of the proceedings. 2. The credibility of the Plaintiff's husband, Mr Coolman, and her nephew, Mr Woo Hiun Kim, was not suggested to have been damaged by their cross-examination. As will be seen, their evidence provides only limited assistance to the Plaintiff's case. Properly, Mr Coolman's silence with respect to numerous allegations made by the Plaintiff, which he ought to have been able to corroborate, and the vagueness of his evidence in support of the Plaintiff's asserted post-Christmas Eve 2019 symptoms and conduct were relied upon by the Defendant in support of his contentions that the Plaintiff failed to prove her allegations with respect to those matters. 3. What happened on Christmas Eve 2019 is ultimately not in doubt in view of the contents of Exhibit P2. Although there is no CCTV footage of 26 August 2019 or 2 November 2019, the Court has the benefit of accounts of those events from the Plaintiff which were made far closer in time to the events, and before these proceedings commenced. The Plaintiff bears the onus of proof of those events. As will be seen, when those matters are considered, the version of events which is most likely to be reliable is the version which was given closest in time to the events themselves. 4. In Watson v Foxman (1995) 49 NSWLR 315 McLelland CJ in Equity considered in detail at [319] the "fallibility of human memory" and "the process of conscious and unconscious reconstruction of what occurred, or was said in a conversation". The plaintiff's evidence of disputed facts regularly revealed that "fallibility", and "reconstruction" with respect to a number of disputed matters of substance. 5. In Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168, Hodgson JA said at [14] that in deciding facts according to the civil standard of proof "the Court is dealing with two questions: not just what are the probabilities on the limited material which the Court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision". Those observation apply to the events of 26 August 2019 and 2 November 2019. The latter observation applies to the Plaintiff's allegations with respect to eggs, metal shavings, tyre damage, damage to a sewer pipe and the replacement of a section of boundary fencing. 6. In A v N [2012] NSWSC 354 Ward J (as Ward P then was) embraced the statement by McLelland CJ in Equity in Watson at [318] that: "Human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions of self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than impression from which plausible details are then again often subconsciously, constructed. All this is a matter of human experience." 1. Ward J's observations are apposite with respect to the evidence of the Plaintiff. Presumably for the reasons her Honour identified, whether consciously or subconsciously, the Plaintiff constructed a narrative with respect to a number of significant matters which, save with respect to the events of Christmas Eve 2019 which are confirmed by the CCTV footage of that evening, is not supported by the evidence of what was said, and not said, by her at the time the events occurred, or by any other circumstantial evidence. 2. Her Honour also embraced McLelland CJ in Equity's statement at [349] that: "Each element of the cause of action must be proved to the reasonable satisfaction of the Court, which means that the Court must feel "an actual persuasion of its occurrence or existence". Such satisfaction is not "obtained or established independently of the nature and consequences of the fact or facts to be proved" including the "seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding"." 1. Relevantly for present purposes, Ward J added [350] that where evidence is given "long after" the occurrence of the events in question, the witness "may put their own gloss or interpretation on events in which they were emotionally involved and that, by now, those perceptions would be reinforced in their minds so that they will be convinced of the truth of those perceptions". Her Honour's statement aptly describes much of the Plaintiff's evidence where it is disputed. So does the observation that, not only "do memories fade with time", but "impressions of events may be accepted as fact". The Plaintiff may genuinely believe many of the controversial statements made by her, despite the absence of support for, or, in some instances, inherent improbability of her allegations. Although most obviously relevant in the context of the plaintiff's allegations with respect to the conduct of the Defendant, that observation is also relevant when the reliability of the Plaintiff's evidence with respect to her pre and post-Christmas Eve 2019, and their impact on her lifestyle is evaluated. 2. In Coote v Kelly [2013] NSWCA 357 at [51] the Court of Appeal acknowledged that "memory is all too fallible". In M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 534 McHugh J referred to the "everyday experience of the Courts that honest witnesses are frequently in error about the details of events". The Court has focussed on the reliability of the parties' evidence with respect to disputed issues of fact, and accepts that unreliability of recall need not involve conscious dishonesty. 3. The authorities urge caution with respect to making findings of material fact in reliance upon demeanour (Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349 at 351, 352; Fox v Percy (2003) 214 CLR 198; [2003] HCA 22 at [20]). In view of the manner in which the Plaintiff gave evidence when cross-examined about matters which she knew would not assist her case, the Court has been vigilant to avoid being unfairly adversely influenced by her demeanour when evaluating the reliability of the Plaintiff's controversial evidence. 4. In Gautam v Health Care Complaints Commission [2021] NSWCA 85 Leeming JA said that in cases which Payne JA described at [83] as involving "starkly conflicting narrative accounts" the fact finding exercise should "commence with objectively established matters, against which the credibility and reliability of testimonial evidence can be assessed", and that the resolution of issues involving credibility will usually "require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation". His Honour also endorsed the "appropriateness of reasoning, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events" in those circumstances. As will be seen, that approach has considerable utility in the determination of these proceedings. Albeit in quite different ways with respect to the events of Christmas Eve 2019 on the one hand, and the events of 26 August and 2 November 2019 on the other, regard to those matters has materially assisted the Court to avoid having to make findings solely on the basis of oath against oath. The availability of contemporary materials, objectively established facts and the absence of "apparent logic" of some of the Plaintiff's disputed allegations assume prominence in determining the Plaintiff's claims with respect to her pre and post-Christmas Eve 2019 psychological health, her symptoms and their impact on her quality of life. 5. In The Nominal Defendant v Cordin [2017] NSWCA 6 at [165], Davies JA recorded, summarising numerous authorities, how credibility issues are to be approached: "[165] In Coote v Kelly; Northam v Kelly [2016] NSWSC 1447 I collected a number of authorities that have provided assistance in dealing with credibility issues and the fallibility of human memory. I recorded these authorities as follows: [100] In Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd's Rep 403 Lord Pearce discussed credibility. The first two matters he raised dealt with truthfulness, and he then went on to say (at 431): Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part. [101] In Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) Leggatt J said: [15] An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory. [16] While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people's memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate. [17] Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called 'flashbulb' memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description 'flashbulb' memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness's memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory). [18] Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time. [19] The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party's lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces. [20] Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does or does not say. The statement is made after the witness's memory has been "refreshed" by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness's memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events. [21] It is not uncommon (and the present case was no exception) for witnesses to be asked in cross-examination if they understand the difference between recollection and reconstruction or whether their evidence is a genuine recollection or a reconstruction of events. Such questions are misguided in at least two ways. First, they erroneously presuppose that there is a clear distinction between recollection and reconstruction, when all remembering of distant events involves reconstructive processes. Second, such questions disregard the fact that such processes are largely unconscious and that the strength, vividness and apparent authenticity of memories is not a reliable measure of their truth. [22] In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth. [102] In Campbell v Campbell [2015] NSWSC 784 Sackar J said: [73] In Watson v Foxman (1995) 49 NSWLR 315 and 319, McLelland CJ in Eq made the following remarks: …human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience. [74] I made the following observations in Craig v Silverbrook [2013] NSWSC 1687 at [140]-[142]: [140] Whilst a trial judge is entitled to make observations relating to the demeanour of certain witnesses, it is a notoriously crude and inaccurate methodology. Its defects have been exposed on numerous occasions. [141] In that regard, I am of course mindful of the comments of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at [30]-[31]) when they remarked (citations omitted): [30] It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Societe d'Avances Commerciales (Societe Anonyme Egyptienne) v Merchants Marine Insurance Co (The "Palitana"): "... I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour." [31] Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility… [142] In the recent decision of McGraddie v McGraddie and another [2013] UKSC 58; [2013] 1 WLR 2477, the UK Supreme Court emphasised that, especially in cases where a trial judge is faced with a stark choice between irreconcilable accounts, the credibility of the parties' testimony, and the trial judge's assessment of the character of witnesses and the manner in which the witnesses give evidence, is of primary importance. Those observations are particularly relevant to the present case. Similar observations have been made in Australian authorities (Fox v Percy at [23]; Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 at [41] per McHugh J and see generally comments in Ritchie's Uniform Civil Procedure NSW at SCA s 75A.20). [75] In Camden v McKenzie [2008] 1 Qd R 39 at [34] Keane JA (as he then was) made the observation that "the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation." This remark was cited with approval by Leeming JA (with whom Barrett JA and Tobias AJA agreed) in New South Wales v Hunt (2014) 86 NSWLR 226 at [56]. [76] Hallen J recently set out the relevant principles in Evans and Braddock [2015] NSWSC 249 at [70]-[77]. After referring to Watson v Foxman, his Honour said: [71] In that case, his Honour was talking of a cause of action founded on s 52 of the Trade Practices Act 1974 (Cth) or s 42 of the Fair Trading Act 1987 (NSW): see the discussion by McDougall J in Harbour Port Consulting v NSW Maritime [2011] NSWSC 813, at [10] - [18]. However, as McLelland CJ in Eq also pointed out, the views apply to all types of litigation. [72] I also remember what was said by Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56, at [48]: "When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2)." [73] The credibility of a witness and his, or her, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas S.A. (The "Ocean Frost") [1985] 1 Lloyd's Rep 1, per Robert Goff LJ, at 57. Also see, In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547, per Black J, at [7]. [74] A court, in cases involving events which occurred long before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200, per Jagot J, at [1247]. Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160, per Kenneth Martin J, at [157]. [75] … [76] The circumstances of this case, make what was written by Tamberlin J in Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (trading as Uncle Ben's of Australia) (Federal Court of Australia, Tamberlin J, 29 June 1995, unrep), at 122 - 123 (in a passage cited with approval by the High Court when it upheld his Honour's decision: Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599, at [15]) appropriate to remember: "[Given the lapse of time] between the events and conversations raised in evidence and the hearing of the evidence before me, the only safe course is to place primary emphasis on the objective factual surrounding material and the inherent commercial probabilities, together with the documentation tendered in evidence. In circumstances where the events took place so long ago, it must be an exceptional witness whose undocumented testimony can be unreservedly relied on. The witnesses in this case unfortunately did not come within that exceptional class. The discussions referred to in evidence were capable of bearing quite opposed meanings depending on subtle differences of nuance and emphasis, and a proper appreciation of the significance of those matters must necessarily be considerably diminished over such a long period of time." [77] Finally, I should mention an article by the former Chief Judge at Common Law, P McClellan entitled "Who Is Telling the Truth? Psychology, Common Sense and the Law" (2006) 80 ALJ 655, in which he wrote, at 665, quoting a passage from the "Guidelines Relating to Recovered Memories" (2000) of the Australian Psychological Society: "Memory is a constructive and reconstructive process. What is remembered about an event is shaped by how that event was experienced, by conditions prevailing during attempts to remember, and by events occurring between the experience and the attempted remembering. Memories can be altered, deleted and created by events that occur during and after the time of encoding, during the period of storage, and during any attempts at retrieval."" (Emphasis added). 1. Consistent with the Court's approach, and with abundant authority to the same effect, Davies JA's observations have informed, and been applied by the Court in evaluating the reliability of evidence of disputed facts in these proceedings (Mansour v Marhop Pty Limited [2023] NSWDC 476 at [78]). That is particularly so with respect to the evidence of the Plaintiff. 2. In Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187 at [20] Ipp JA, with whom Mason P and Tobias JA agreed, said that: "Witnesses may be dishonest about only parts of their evidence. Nothing is more deceitful than half the truth. Care must be taken to differentiate between assessing whether a witness is being honest or deceitful, and whether a truthful witness is giving accurate or inaccurate testimony. Distinguishing truth from intentional deceit is a different exercise from distinguishing between true and false memory. A liar intends to be deceptive, whereas the faulty rememberer tries to be truthful. Discerning what is accurate or inaccurate in the testimony of a truthful witness may be the most difficult task of all. Particularly when cognitive illusions or memory malfunctioning and suggestibility are involved". 1. The Court does not find that either party has intended to be deceptive or deliberately untruthful, much less that either has been shown to be a "liar". Each party has a different perception and recollection, or reconstruction of many disputed events, and very substantial motivation to remember events in particular ways. Ultimately, as will be seen, making findings of fact with respect to what happened on Christmas Eve 2019 is not influenced by considerations of the kind to which Ipp JA referred, in view of the CCTV footage of that evening, which speaks for itself. In other respects, the difficulty to which His Honour referred is present, but ultimately resolved by the Court's findings with respect to the reliability, or unreliability of the competing versions of disputed events in the light of circumstantial or other evidence of the kind which Davies JA discussed as informing the evaluation of the probabilities. 2. In Goodrich, Ipp JA also recorded at [21] "Another area where great care must be exercised in making demeanour findings is where a witness is from a different cultural and ethnic background to that with which the judge is familiar". That description fits each of the parties in these proceedings. That is more so in the case of the Plaintiff than of the Defendant. The Court has been careful to avoid making findings of fact which involve the drawing of inferences in reliance upon nuances in the evidence of the parties in ways which may be unfair to them. Particularly in the case of the Plaintiff, the Court has been careful not to impute an intention to misspeak the truth when the Plaintiff has proffered implausible accounts of disputed events, or, as with her asserted pre-disposition to suffer injury when hosed by the Defendant, the impact of the violent attack on her in August 2020, and her economic loss claims, the Plaintiff has made assertions which were contrary to representations made her in prior statements, or contradicted by her own documents. 3. The Court is left in no doubt about what each party contends about relevant disputed issues of fact with respect to their 2019 exchanges. Ultimately, determining those matters is not problematic, for reasons which will become apparent. Determining the Plaintiff's economic loss claim is ultimately not problematic. The more difficult matter is determining the reliability of the Plaintiff's post-Christmas Eve 2019 complaints with respect to her symptoms, particularly as the medico-legal experts' opinions are based significantly on whether the Court has an actual persuasion that the Plaintiff's claims in that regard are reliable. 4. The Court accepts that English is not the Plaintiff's first language. The Court is aware that the Plaintiff has previously given evidence with the assistance of an interpreter, although the Plaintiff appeared to criticise the accuracy of the interpretation which was provided by that interpreter, and preferred to give her evidence in these proceedings in English without the assistance of an interpreter. The Court has avoided adopting an unfairly literal interpretation of the Plaintiff's evidence, and avoided drawing inferences which might be inappropriate, and unfair in the case of a witness whose first language is not English. The Court has been conscious of the need to keep these considerations in mind when assessing the credibility and reliability of the evidence of the Plaintiff. Despite any linguistic or cultural difficulties the Plaintiff may have had in giving evidence, the Court is satisfied that its findings with respect to damaging aspects of the Plaintiff's evidence are based on questions and answers to them which the Plaintiff clearly understood. The Plaintiff struggled to responsively answer some questions in cross-examination, but did not appear to struggle, or claim to struggle to understand those questions. The Court is comfortable that, having regard to the totality of the evidence, the findings it makes with respect to the critical disputed issues of fact are not unfair, or arrived at unfairly to the Plaintiff. 5. As will be seen, the reliability of the Plaintiff's evidence has been successfully challenged in part in reliance upon accounts of events or symptoms which she gave to the health professionals which appeared inconsistent with the Plaintiff's oral testimony. The Court has approached those inconsistencies "with caution" (Mason v Demasi [2009] NSWCA 227, per Basten JA at [2]). The Court is satisfied that the reasons for such caution identified in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 to which his Honour referred do not miltate against relying upon the inconsistencies in assessing the reliability of the Plaintiff's evidence of disputed facts. It has not been suggested, and the Court does not find that "elements of florid expression and exaggeration" in the Plaintiff's oral testimony have been a "function of her psychological state" (Mason v Demasi, per Basten JA at [4]). 6. Mr Coolman was cross-examined only briefly but, consistent with the sensible approach of Counsel to the rule in Browne v Dunn (Browne v Dunn (1893) 6 R 67 (HL))(see West v Mead [2003] NSWSC 161), a lot of his unparticularised allegations with respect to the Plaintiff's behaviour after Christmas Eve 2019 were not the subject of cross-examination. Mr Coolman has his version of certain events which are peripheral to the critical issues of disputed fact in this case, and there is no documentation to either confirm or refute it. Mr Coolman said nothing, or little about the critical events alleged by the Plaintiff. Cross-examination of him on those matters was thus not required. As will be seen when the Plaintiff's claim with respect to her post 24 December 2019 symptoms and disability and claim for economic loss are considered, as the Defendant submitted, there is a significant silence in Mr Coolman's evidence in some respects, and a vagueness in others. In view of the Court's reservations about the reliability of the Plaintiff's evidence in the respects identified later in these reasons, the absence of support for them from Mr Coolman renders acceptance of the Plaintiff's allegations in those respects problematic. The evidence of the Plaintiff 1. The credibility of the Plaintiff has particular significance in evaluating whether she was in fear during the assaults or batteries which she alleged had occurred, and evaluating whether the Plaintiff suffered and continues to suffer from the symptoms which she alleged, and the extent to which any condition suffered by the Plaintiff was caused by those events. The evaluation of the Plaintiff's alleged symptoms, and their causes, also assume significance when the medicolegal evidence is assessed as the opinions of Dr Parmegiani and Dr Roberts were very much influenced by their views of the reliability of the Plaintiff's reports of her symptoms. 2. It was submitted by the Defendant that the Plaintiff's credibility was "substantially impugned through cross-examination". In support of that contention the Defendant submitted that the Plaintiff had been unwilling to concede that she had a pre-existing history of mental disorders, including anxiety and depression syndrome for which she was treated with Lexapro and Antenex. The contentions with respect to the Plaintiff's treatment history are essentially well-founded. The allegation of prior "mental disorders" is not. It is not in doubt that the Plaintiff had not been diagnosed with a psychiatric or psychological condition prior to Christmas Eve 2019. Whether the Plaintiff was pre-disposed to suffering psychological or psychiatric injury prior to that date remains an issue for determination. 3. In cross-examination (T 53) the Plaintiff was asked about the prescription of Antenex and Lexapro in about 2014. During the course of that cross-examination, and making due allowance for linguistic uncertainty, the Plaintiff's answers were evasive and confusing. Whether that was deliberate or conscious, is of little moment. The Plaintiff's answers during cross-examination, on a range of topics, established that the Plaintiff's evidence with respect to her uncorroborated disputed claims must be approached with caution. 4. The Defendant submitted that, when it seemed advantageous to her, the Plaintiff claimed that her memory failed her, saying, "I can't remember", notwithstanding that, at other times, when saying so seemed to her advantage, the Plaintiff said that she had a "good memory". That submission has merit. The transcript reveals numerous instances of those contradictions. The contradictions were not with respect to minor or inconsequential matters. They did not result from complex or linguistically sophisticated questions. The Plaintiff's memory is fairly described as "convenient". 5. The Plaintiff was criticised for refusing to accept the history which she was recorded as having provided to Dr Allan in 2014. In these proceedings, the Plaintiff alleged that financial difficulties had been the cause of her presenting problems when she saw Dr Allan in 2014. Later in 2014, the Plaintiff purchased the property Number 10 for in excess of $3,000,000. Nothing suggested by the Plaintiff provides support for her claim that she had financial difficulties in 2014. The Plaintiff's statements to Dr Allan in 2014 about problems with a neighbour's cultural barbecue being the cause of her anxiety or stress, when she had no apparent reason to misspeak the truth, are more likely to have been truthful than the explanation which she proffered years later. Why Dr Allan would have misreported the Plaintiff's statements was not suggested. The Court is satisfied that the Plaintiff knew, or suspected that what she told Dr Allan in 2014 was potentially unhelpful to her case, and that, if believed, the explanation advanced in cross-examination in these proceedings would be potentially helpful to her case. As will be seen, accepting the accuracy of Dr Allan's record of the Plaintiff's statements in 2014 has implications when the issue of the Plaintiff's asserted pre-disposition to suffer psychological or psychiatric injury as a result of the Defendant's conduct on Christmas Eve 2019 is considered. 6. The Plaintiff was submitted to have been evasive with respect to the circumstances surrounding the missing 40 minutes of CCTV footage ("missing footage") between approximately 10.55 and 11.35 p.m. on Christmas Eve 2019 (T 129-130). The Plaintiff's evidence with respect to the missing footage was confusing and unconvincing. So was the Plaintiff's explanation for the role which her niece allegedly played in relation to the issue. The Plaintiff never credibly explained what happened to the missing footage, although she reiterated a number of times, uncontroversially, that nothing had happened during that period. Why, in those circumstances the Plaintiff could not "come clean" is hard to understand. 7. The Defendant did not suggest that anything significant happened during the period covered by the missing footage. In those circumstances, the evidence with respect to the missing footage, and the Plaintiff's inability to provide a credible explanation for it, is only relevant to, and damaging of the reliability of the Plaintiff's evidence. During the course of cross-examination in relation to the issue, and at a time when the Plaintiff might reasonably have anticipated that her answers would not be helpful to her case, the Plaintiff stated that her "anxiety just so absolutely hard. I'm really hard, my heart and my head because it's – because this is shock for me. For the four years, I have been – dear. It's absolutely – it's anxiety from this incident and after watching and talking and – this is real, real hard for me". That resulted in the Court taking an early morning adjournment. On resumption, and throughout her understandably lengthy further cross-examination, albeit not to the same extent, the Plaintiff again invoked those difficulties when she perceived, accurately, that her answers to counsel's questions were less than helpful for her case. 8. As submitted by the Defendant, during her cross-examination the Plaintiff generally demonstrated no difficulty in giving expansive, and in many instances unresponsive answers to Counsel's questions when she considered that doing so assisted her case. The Plaintiff did not reveal any anxiety in the course of giving evidence which she could reasonably have anticipated was helpful to her case. There is force in the submission of the Defendant that "on multiple occasions" the Plaintiff would "go from saying "I can't do this" to giving longwinded answers which did not answer the questions she was asked". The Court on a number of occasions invited the Plaintiff to avoid non-responsive, evasive or longwinded answers, and explained why the Defendant might use doing so against her. The Plaintiff's asserted difficulties in coping with cross-examination were overwhelmingly in the context of answers to questions which she knew, or was likely to have known were unhelpful to her case. 9. The Plaintiff was criticised for assertedly having "made up answers as she went", an example of that being her assertion that something recorded by the Wesley Hospital as having been said by her was wrongly recorded by the hospital (T 88). Whether the Plaintiff "made up" her answers is not something about which the Court need speculate. It is sufficient to prefer the independent contemporaneous record of what the Plaintiff said to what she said in evidence in these proceedings. No rational basis for doubting the accuracy of the clinical records was advanced by the Plaintiff. Her incentive to misremember in this and other significant respects was considerable. 10. It was submitted that the Plaintiff "plainly made up the events on 2 November 2019 together with Mr Nadis". Police attended the Plaintiff's home later that day, and the Plaintiff gave a materially different report to the police to that which she asserted in her evidence before the Court. In cross-examination (T 161) the Plaintiff said that she did not remember being sprayed by a hose by the Defendant on 2 November 2019. The Court prefers the narrative provided to Police which was close in time to the alleged events, when the Plaintiff had no reason to misspeak the truth, and the Police had no reason to misreport what she told them. 11. The evidence of Mr Nadis was criticised as being "evasive, unwilling to answer questions" and having become "aggressive". The Court need not make findings about those assertions. Why that is so will become apparent when the evidence of Mr Nadis with respect to the events of 2 November 2019 is considered. 12. The Defendant submitted that the Plaintiff was a person who had "provably made up events" and should not be accepted as a truthful witness. The Court need not speculate about those matters. It is sufficient to find that, unless supported by other reliable evidence, the Plaintiff's evidence of disputed issues of fact leaves the Court without an actual persuasion that her version of those events or matters has been proved. 13. In submissions, the Plaintiff disputed that her credibility had been damaged during cross-examination, or that the essential allegations made by her could or should be rejected. It was submitted that the Plaintiff's account of events was corroborated in a number of material respects, including by admissions made by the Defendant, and the unchallenged evidence of her husband. Save with respect to the events of Christmas Eve 2019, which are essentially established by CCTV footage of that night, the limited admissions of the Defendant, and limited scope of the evidence of the Plaintiff's husband provide little support for her account of disputed events or facts. Contemporaneous records of the Plaintiff's statements with respect to a number of disputed issues, made by persons with no suggested reason to misreport her statements, militate against accepting the Plaintiff's evidence about them when it is contradicted by those records. 14. The credibility of the Defendant was submitted to have been materially damaged in a number of ways. Unlike the Plaintiff, the Defendant did not, with one or two exceptions, give other than short responsive answers to cross-examination by Counsel for the Plaintiff. The criticisms which the Plaintiff's answers in cross-examination invited on behalf of the Defendant were thus largely absent with respect to the cross-examination of the Defendant. 15. The Defendant's credibility was submitted to have been damaged by his attempt in his Affidavit of 20 October 2023 to correct "mistakes" made by him in his Affidavit of 12 December 2022, the most significant being that, contrary to the earlier Affidavit, he admitted calling the Plaintiff "crazy fucking bitch" on 26 August 2019, but denied doing so on 24 December 2019. There is merit in that submission. The circumstantial evidence with respect to the latter date renders it probable that the Defendant said those words that night. 16. The Plaintiff submitted that the credibility of the Defendant was materially adversely impacted by his revelation in cross-examination (T 383-385) that at about 1.23-1.24 a.m. on 25 January 2023 he threw an apple over and beyond the Plaintiff's premises. The CCTV footage probably prompted the Defendant's questioning about "a throwing action", which is apparent from the CCTV footage. That was the first time that the Defendant asserted that he had thrown an apple. It will be remembered that the Plaintiff alleged that the Defendant threw stones. The Plaintiff never suggested the involvement of an apple. The Defendant's evidence with respect to throwing the apple, and its intended course, was unconvincing. Conversely, that is the only time when anything resembling the Defendant throwing anything on Christmas Eve 2019 was revealed by the CCTV footage taken by the Plaintiff on that night. The damage to the credibility or reliability of the evidence of the Defendant on this basis is comparatively slight, compared with the scope and extent of the demonstrated unreliability of the Plaintiff's evidence. 17. Ultimately, where the evidence of the Plaintiff and the Defendant is in conflict, neither can be accepted without qualification. Each has a substantial financial and non-financial incentive to remember disputed events in particular ways. Consistent with authority, in relation to the events of 26 August 2019 and 2 November 2019, the Court has had particular regard to what was said about those events at the time they occurred. At that time, memories were unlikely to have materially "faded", and the incentive to recount events in particular ways was materially less than it was some years later, when the parties swore their Affidavits in these proceedings. As will be seen, the impact of findings with respect to the credibility or reliability of the evidence of the Plaintiff and the Defendant impacts more on the Court's findings of fact with respect to the Plaintiff's claims than on the Defendant's denials of them. Save with respect to the events of Christmas Eve 2019, the unreliability of the Plaintiff's evidence permeates the determination of other disputed other issues. The credibility of the Defendant assumes little or no significance in those contexts. 18. Comparatively little ultimately turns on the credibility of the Defendant. It is not in contest that he intentionally directed the spray of water from the hose at the Plaintiff on Christmas Eve 2019. Evaluating the consequences of his actions is not informed by any evidence which the Defendant gave, or could have given. Determining whether the Defendant intended to cause the Plaintiff injury is critical to whether any damages to be awarded to the Plaintiff is governed by the provisions of the Civil Liability Act. The Defendant's intention is to be inferred from his conduct, and the circumstances in which it occurred, rather than by reference to his assertions in that regard. 19. The allegations against the Defendant fall into two categories- those in respect of events where there are contemporaneous records of what was alleged to have occurred, or not alleged to have occurred, and those where there is no such evidence, or circumstantial or other evidence which impacts on the probabilities. 20. The alleged events of 26 August 2019 and 2 November 2019 are the subject of COPS entries made shortly after each of those dates, which record the complaints which the Plaintiff made about them. The events of 24 December 2019 are not in doubt having regard to the CCTV footage (Exhibit P2) which neither party suggests inaccurately records what appears on it, or suggests does other than speak for itself, or require judicial conjecture or speculation about what then occurred (Blacktown City Council v Hocking [2008] NSWCA 144). 21. The allegations against the Defendant with respect to the throwing of eggs or stones, drilling holes in tyres or sewer pipes are not the subject of any direct evidence or admissions. The Defendant proffered explanations for those events which are not implausible. There is no circumstantial or other reliable evidence which establishes that, on balance, the Defendant did any of those things. The cross-examination of neither the Plaintiff nor the Defendant advances these issues. Whatever damage cross-examination of the Defendant did to his credibility, the Court is not persuaded that the Defendant's denials of culpability with respect to those events can be rejected, or given so little weight as to enable the Plaintiff to prove her case. The Defendant may or may not have been responsible for the throwing of eggs or stones or the damage to tyres or sewage pipes. The Plaintiff has not discharged the onus of proof which she bears with respect to those allegations. 22. Cross-examination of the Plaintiff, on source documents, many of them recording statements made by her, significantly undermined the reliability of the Plaintiff's evidence with respect to a number of matters which are in dispute. Save for the events of Christmas Eve 2019, which are revealed in detail by Exhibit P2, the Court does not accept that the Plaintiff's evidence of disputed facts or events is reliable, unless it is supported by other evidence which can be accepted. As recorded above, the Plaintiff revealed herself in cross-examination to be evasive, argumentative, and prone to saying what seemed most advantageous to her case at every opportunity. The Plaintiff asserted that her memory was good with respect to matters which were potentially helpful to her case, but was deficient or absent with respect to matters raised with her in cross-examination which were not helpful to her case. The Court does not accept that the Plaintiff's lack of candour was impacted by any cultural or linguistic difficulties. 23. Given the significance of the Court's adverse findings with respect to the reliability of the Plaintiff's evidence, it is appropriate to refer in further detail to her evidence in cross-examination than might be necessary in other circumstances. The matters recorded in this context inform the Court's findings with respect to the matters raised in cross-examination, as well as its findings with respect to the general unreliability of the Plaintiff's evidence. The extent to which the medico-legal experts relied on, or rejected the Plaintiff's statements to them provides further reason to reveal the basis of the Court's adverse findings with respect to the reliability of the Plaintiff's evidence in some detail. 24. The Plaintiff was cross-examined (T 45ff) about her referral to a Physiotherapist, Mr Kuk, in February 2019 (Exhibit D3, page 2215). The Plaintiff denied, despite being shown the report of Mr Kuk of 13 February 2019 (Exhibit D3, page 2233) that she had received physiotherapy from Mr Kuk, asserting that Mr Kuk was a "doctor". Despite her initial lack of asserted deficiency of memory, when confronted with Mr Kuk's report, the Plaintiff asserted that she could not "remember much" or "remember actually much". No reason for Mr Kuk inaccurately recording his treatment of the Plaintiff was suggested. When presented with Mr Kuk's discharge summary report of 31 December 2019 (T 47), the Plaintiff reiterated that she could not remember about the matters there referred to. When asked whether there was a "problem with your memory", (page 47) the Plaintiff asserted that she had a "good memory". That contradiction recurred during the Plaintiff's cross-examination. 25. The Plaintiff asserted (T 48) that her "chest pains" had started after Christmas Eve 2019, and were the result of the Defendant's conduct. The Plaintiff reiterated that she never had "that kind of symptoms" before Christmas Eve 2019. The Plaintiff was shown a record of St George Hospital (Exhibit D3, page 2278) dated in 2014 recording that the Plaintiff had "atypical chest pain for 2 months". The Plaintiff sought to explain that she had gone to St George Hospital in February 2014 (T 48) because of "finance problems stress that time". The Plaintiff volunteered that "this is different symptom as I have now and that time. That time is just I have a finance problem for the stress. I remember that. I remember exactly that what happened to that time. That only – only a short time and coming in and gone no any continue as doing this symptoms come I remember". That explanation was contraindicated by other contemporaneous records of the Plaintiff's statements. The Plaintiff's attempts to rationalise any inconsistency in her reported symptoms was unconvincing. 26. The Plaintiff volunteered numerous times in the course of cross-examination with respect to medical treatment received by her in 2014 that she had "trouble for the finance problem" in 2014 which, by 2015, had ceased. The Plaintiff's non-responsive answers in cross-examination were consistent with her apparent desire to convince the Court that any psychological problems experienced by her after Christmas Eve 2019 first arose then, and only arose as a result of the conduct of the Defendant. 27. The Plaintiff was cross-examined about a series of reports prepared by Dr Allan, a Cardiologist, in 2014. Dr Allan reported (Exhibit D3, page 2285) that the "syndrome of chest tightness and palpitation" which the Plaintiff said had existed for first 3 to 4 months of 2014 was most likely caused by "anxiety" as a result of which Dr Allan "increased her Inderal to 20mg twice a day". When Dr Allan reviewed the Plaintiff in June 2014 (Exhibit D3, page 2286) he recorded the Plaintiff as having spoken of "anxiety and depression she had been experiencing particularly in relation to a neighbourhood issue". As is not in doubt, that issue did not relate to the Defendant or his family, and involved the barbequing of a whole pig in the backyard of the neighbour's property in accordance with the cultural traditions of the occupants of the property. In addition to the medication which the Plaintiff was then on, Dr Allan prescribed "Lexapro 5mg a day to try and assist with her anxiety depression syndrome". When cross-examined in relation to Dr Allan's report the Plaintiff asserted "I can't remember actually much because too long ago", notwithstanding that the Plaintiff asserted that she was in no doubt that her physical and psychological issues in 2014 were due to the "finance problem stress" (T 50). 28. The Plaintiff dealt similarly with the report of Dr Laurence Schneider (Exhibit D3, page 2349) on which she was also cross-examined. Further cross-examination of the Plaintiff (T 52-53) with respect to her consultations with Dr Allan in 2014 was also revealing. The Plaintiff reiterated that the "problem for my physical heart, just for so much worried – worry about for finance – main worry about is the finance problem at the time". Dr Allan's notes recorded, as was suggested to the Plaintiff in cross-examination, that her real concern was the "big barbeque for whole pigs and barbeque is actually worry about for the big fire" with respect to her neighbours' "big hangi". The Court accepts that Dr Allan's contemporaneous note records what the Plaintiff told him. There is no reason not to. 29. When it was suggested, consistent with Dr Allan's notes, that he prescribed (T 53) "Lexapro for anxiety and depression syndrome", the Plaintiff again asserted that she could not remember, and said that she didn't remember anything about those matters. Notwithstanding that answer, the Plaintiff immediately volunteered considerable detail about precisely those matters. Notwithstanding her earlier insistence that Dr Allan had misreported her, the Plaintiff ultimately suggested (T 55) that she could not remember what she said to Dr Allan or Dr Allan said to her. 30. The Plaintiff agreed (T 56) that it was important to be honest with medical experts. The Plaintiff volunteered in the context of information which she had given to Dr Parmegiani (her medico-legal Psychiatrist) that she "talked to him for the finance problem" in 2014. The Plaintiff was asked about telling Dr Parmegiani that she had no history of psychiatric illness (T 57). The Plaintiff maintained that she had been on antidepressants for her heart (T 57) not for "mental" issues. The Plaintiff was referred to Dr Allan's report of 15 December 2014 (Exhibit D3, page 2293). Dr Allan recorded the Plaintiff as having "admitted that there had been some anxiety over the last few weeks". The Plaintiff rejected the suggestion that she continued to experience anxiety in December 2014, nine months after she had reported experiencing anxiety to Dr Allan. 31. The Plaintiff was cross-examined (T 59) on the "mental care plan" which had been prepared for her by her long term General Practitioner, Dr Meyerowitz, in June 2018. Dr Meyerowitz continued to be the Plaintiff's general practitioner well after Christmas Eve 2019. He did not give evidence in the Plaintiff's case. No explanation for the failure of Dr Meyerowitz to give evidence was offered. It can be inferred that Dr Meyerowitz's evidence would not have assisted the Plaintiff's case (Manly Council v Byrne and Anor [2004] NSWCA 123). In the mental care plan prepared by Dr Meyerowitz, under the heading "Management goals with which the patient agrees", was recorded "prevent complication – mang [sic] anxiety and depression". The "patient's health problem/health needs/relevant conditions" included "depression" and, under the heading "Treatment and services required, including actions to be taken by the patient" recorded "psychological counselling/cognitive-behaviour therapy/AA group". Under the heading "Arrangements for providing treatment/services (when, who, contact details)" against the entry for mental plan appeared "psychologist and psychiatrist CBT with counselling". Against the entry "depression" appeared "Dr Kim in Strathfield". The Plaintiff confirmed that the signature on the document was hers. The Plaintiff confirmed that she had once seen Dr Kim. Although Dr Parmegiani in his evidence sought to downplay the significance of the mental care plan prepared by the Plaintiff's long term medical practitioner, there is no basis for finding that the contents of the document were not accurate. It was adopted by the Plaintiff at the time. There is no reason to doubt that, as her long term general medical practitioner, Dr Meyerowitz would not have prepared the Plaintiff's mental health plan without considering her medical history, and concluding that doing so was in the interests of the Plaintiff's health. 32. In cross-examination (T 63) it was suggested to the Plaintiff that she did not "like telling doctors about your medical history", and only told doctors "things that are in your interest". The Plaintiff disputed those propositions, asserting that "this case for the four years makes me all changing my life, and also, I absolutely can't thinking any other life", suggesting that she could not accurately recall events going back 10, 20 or 30 years. The Court finds the Defendant's submission is well founded with respect to the Plaintiff's statements to the medico-legal experts retained by the parties in these proceedings. Conversely, in earlier times, when she had no motive for misreporting, the Plaintiff was candid with her treating health professionals. 33. The Plaintiff was cross-examined (T 64) on records produced by Sutherland Hospital (Exhibit D3, page 2313). The document recorded the Plaintiff's attendance at Sutherland Hospital on 23 July 2020, three weeks after the Plaintiff's Statement of Claim was filed in this Court. The clinical notes recorded the Plaintiff "experiencing an increase in anxiety and distress", "struggling with anxiety for the past 12 months" which was "mainly in the context of psychosocial stress due to having troubles with her neighbour" after "reporting last year to the council that her neighbour had built a shed like structure against her building wall without DA approval". After referring to the events of Christmas Eve 2019, the notes recorded the Plaintiff as stating that "things have come to a head when last Sunday her neighbour was playing music very loudly, states that this occurred for a 5 hour period over both days on the weekend and this resulted in her feeling distressed and highly anxious". The notes recorded that the Plaintiff denied being on any psychiatric medications at that time. The notes recorded a discussion with the Plaintiff's husband in which he denied "having any current concerns for client's safety, denied any acute risks at present and is happy to take client home". The Plaintiff adduced no evidence establishing or supporting her allegations about the Defendant playing loud music. 34. The Plaintiff denied (T 64) that she went to Sutherland Hospital because the Defendant was "playing music". The Plaintiff denied that her husband had no concerns for her safety, contrary to what was recorded in the hospital records. The Plaintiff's husband did not give evidence supporting her claim. The Plaintiff's non-responsive and evasive answers in relation to the contemporaneous records of the hospital which were presented to her were unconvincing, and further examples of the Plaintiff refusing to accept statements recorded in documents made close in time to the events to which they referred when they were not consistent with, or helpful to her case. In a lengthy response to the question (T 65) "What else happened that triggered you to go to the hospital?", the Plaintiff disavowed any suggestion that her attendance at Sutherland Hospital was in any way referable to music being played by the Defendant. The Plaintiff's further attempts to explain why she attended the Sutherland Hospital were unconvincing (T 66-67). The Court does not know, or need to know why the Plaintiff really went to the hospital. It is sufficient to record that the Plaintiff's evidence supports the Court's finding that the Plaintiff's evidence was materially unreliable. There is no reason to doubt that the clinical records accurately recorded the matters appearing in them. They do not advance the Plaintiff's case. 35. Not insignificantly in view of the Plaintiff's demonstrated willingness to complain to the council and Police, there is no evidence of any report or complaint being made with respect to any conduct of the Defendant on or about 23 July 2020. Although the Court is not satisfied that the Plaintiff went to Sutherland Hospital to try to improve her case in some way, that possibility cannot be entirely rejected. 36. The Plaintiff was further cross-examined with respect to her attendances upon Dr Allan in 2017, on referral from Dr Meyerowitz, her treating General Practitioner since 2008. The Plaintiff agreed (T 68) that the first medical practitioner she saw after the events of Christmas Eve 2019 was Dr Meyerowitz, who she saw on 6 January 2020 for 12 minutes. The Plaintiff again saw Dr Meyerowitz on 9 January 2020 for 24 minutes, on 21 January 2020 for 12 minutes and on 28 January 2020 for 30 minutes. Dr Meyerowitz referred the Plaintiff to Uplift Psychological Services on 9 January 2020. 37. The Plaintiff was cross-examined (T 69) on Dr Meyerowitz's notes of his consultation (visit 68) of 21 January 2020 (Exhibit D3, page 2449). Dr Meyerowitz recorded that the Plaintiff had seen "Uplift twice", and that "They won't write a legal letter yet. I explained to her and husband that 2 visits is not enough for psychologist to give accurate report." Dr Meyerowitz further recorded "She now wants a psychiatrist. Feels they may write letter after one visit". Dr Meyerowitz noted the reason for the Plaintiff's visit as "anxiety/depression". Whether that reflected a diagnosis by the doctor, or the Plaintiff's claims is not clear. The primary purpose of the Plaintiff's visit is also unclear. The Court is not persuaded that it was solely for medical or therapeutic purposes. 38. In cross-examination (T 69) the Plaintiff disputed having told Dr Meyerowitz what he recorded but, when pressed, and presumably assuming that Dr Meyerowitz's notes would be regarded by the Court as accurate, the Plaintiff stated that she did not "actually remember these things really". 39. The Plaintiff suggested (T 70) that Ms Barbara Preston, the Psychologist from Uplift, was a "real good psychologist" who would "never of course make it up". Ms Preston, who saw the Plaintiff in a therapeutic context after Christmas Eve 2019, has not given evidence in these proceedings. No explanation for the failure to call Ms Preston as a witness in the Plaintiff's case has been advanced. 40. In Manly Council v Byrne and Anor [2004] NSWCA 123, Campbell J, with whom Beazley JA and Pearlman AJA agreed, considered the application of Jones v Dunkel (1959) 101 CLR 298. His Honour referred (at [53]) to the judgment of Glass JA in Payne v Parker [1976] 1 NSWLR 191 at 201-202, where Glass JA said: "(6) Whether the principle can or should be applied depends upon whether the conditions for its operation exist. These conditions are three in number: (a) the missing witness would be expected to be called by one party rather than the other, (b) his evidence would elucidate a particular matter, (c) his absence is unexplained. (7) The first condition is also described as existing where it would be natural for one party to produce the witness: Wigmore , par 286, or the witness would be expected to be available to one party rather than the other: O'Donnell v Reichard [1975] VR 916, at p. 921, or where the circumstances excuse one party from calling the witness, but require the other party to call him: ibid [1975] VR 916, at p. 920, or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him: ibid [1975] VR 916, at p. 920, Regina v Burdett (1820) 4 Barn & Ald 95; 106 ER 873, or where the witness' knowledge may be regarded as the knowledge of one party rather than the other: Earle v Castlemaine District Community Hospital [1974] VR 722, at p. 733, or where his absence should be regarded as adverse to the case of one party rather than the other: ibid [1974] VR 722, at p. 734. It has been observed that the higher the missing witness stands in the confidence of one party, the more reason there will be for thinking that his knowledge is available to that party rather than to his adversary: ibid [1974] VR 722, at p. 728. If the witness is equally available to both parties, for example, a police officer, the condition, generally speaking, stands unsatisfied. There is, however, some judicial opinion that this is not necessarily so: ibid [1974] VR 722, at p. 728. Evidence capable of satisfying this condition has been held to exist in relation to a party's foreman: Cafe v Australian Portland Cement Pty Ltd (1965) 83 WN (Pt 1) (NSW) 280; his safety officer: Earle v Castlemaine District Community Hospital [1974] VR 722; his accountant: Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348; his treating doctor: O'Donnell v Reichard [1975] BR 916, at p. 921." 1. Campbell J went on to say, at [54]: "54 The inferences licensed by Jones v Dunkel are ones which are drawn, if at all, once all the evidence in the case is in. This has significance in two ways. The first is that, though Jones v Dunkel licenses drawing more confidently, an inference available against the party who has failed to call the evidence, before that can happen there must first be available to be drawn, on the evidence which has been admitted, an inference against that party. As Spigelman CJ said in State Bank of NSW v Brown [2001] NSWCA 22; (2001) 38 ACSR 715 at [17]-[18]: "As expressed in Cross on Evidence, above, at [1215]: … the rule in Jones v Dunkel permits an inference that the untendered evidence would not have helped the party who failed to tender it, and entitles the trier of fact to take that into account in deciding whether to accept any particular evidence which relates to a matter on which the absent witness could have spoken, and the more readily to draw an inference fairly to be drawn from the other evidence by reason of the opponent being able to prove the contrary had the party chosen to give or call evidence … [Emphasis added] The formulation "fairly to be drawn from the other evidence" reflects the terminology of Windeyer J in Jones v Dunkel at 312, (most recently quoted with approval by the joint judgment in RPS , above, at [26]): … where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference. [Emphasis added] (See also Insurance Commissioner v Joyce (1948) 77 CLR 39 at 49; 55 ALR 356.)" That reasoning of Spigelman CJ was adopted by Hodgson JA at [104] (with whose reasons Handley JA agreed)." 1. Campbell J also said, at [55]: "55 The second matter of significance is that if the evidence which has been admitted is enough to prove the case of the party who has not called the witness, the tribunal of fact could be justified in not counting the failure of that party to call that witness as something that reduces the strength of that case. I discuss this further at paras [69] – [74] below." 1. In Lim v Cho [2018] NSWCA 145 at [41], Saville JA said that Jones v Dunkel: "… allows an inference that evidence not called by a party would not have assisted that party, but not that the evidence would have been adverse to that party. Nor does the rule enable a party to fill gaps in the evidence by relying on the absence of a witness the other party might have called. Until the plaintiff proves facts from which an inference of negligence can be drawn, the defendant is not called upon to say anything. More generally, no inference can be drawn unless evidence is given of facts requiring an answer." (Citations omitted) 1. As with Dr Meyerowitz, each of the three conditions to which Campbell J referred has been satisfied with respect to Ms Preston. As her treating health professionals at times most proximate to Christmas Eve 2019, it could be expected that the Plaintiff would have called each of Dr Meyerowitz and Ms Preston as witnesses in her case. Each could have elucidated particular relevant matters. The Court has avoided erroneously drawing the adverse inferences to which Sackville JA referred. The "gaps" in the Plaintiff's case which result from the failure to call any of her treating health professionals remain just that- gaps in the Plaintiff's case, on which the Defendant has relied in support of his contention that the Plaintiff has failed to prove her case. 2. The Court on a number of occasions encouraged the Plaintiff to avoid making "non-responsive speeches or the like". The Plaintiff did not accept that encouragement, and continued throughout her cross-examination to regularly answer her own question, make non-responsive speeches, and to assert her good memory where that was potentially to her advantage, and an absence of memory where that was potentially to her advantage. 3. The Plaintiff was cross-examined (T 77) on the report of Dr Zhen Zhang of 20 August 2020. Dr Zhang saw the Plaintiff on a number of occasions after December 2019. Dr Zhang was not called as a witness in the Plaintiff's case. No explanation for his not being called was advanced. The Court infers that Dr Zhang's evidence would not have assisted the Plaintiff's case. Campbell J's three pre-conditions for doing so have been established. 4. Dr Zhang referred (Exhibit D3, page 2320) in his report of 20 August 2020 to the Plaintiff being admitted to Wesley Hospital Kogarah under his care in August 2020 with symptoms of anxiety and to her being discharged on 14 August 2020. Dr Zhang diagnosed the Plaintiff as having "adjustment disorder with anxiety", the Plaintiff having "developed anxiety symptoms in the context of being allegedly harassed and threatened by her neighbour". Dr Zhang's diagnosis can be accepted. He was qualified to make it, and was the Plaintiff's treating psychiatrist at the time. No motive for Dr Zhang misdiagnosing or exaggerating the Plaintiff's condition emerges from the evidence. 5. Dr Zhang recorded a number of the Plaintiff's reported symptoms, and described the treatment which she had undergone during her hospitalisation, which he considered had "limited benefit". Dr Zhang recorded that he believed the Plaintiff was suffering from adjustment disorder with anxiety, which symptoms were "perpetuated by the relationship with the neighbour", and that she would need ongoing psychiatric support. Dr Zhang concluded his report by suggesting that "the resolution of the difficulties with her neighbour will be a significant contributing factor for her mental health improvement". The Plaintiff rejected the suggestion in cross-examination that she had reported similar symptoms prior to the events of December 2019. 6. The Plaintiff was cross-examined on the Wesley Hospital "Personal risk assessment" prepared on her admission to the hospital on 27 July 2020 (Exhibit D3, page 2554). The Plaintiff was asked about the note made by the Registered Nurse who completed the Personal risk assessment form that the Plaintiff had any "previous diagnosis of a mental illness". In cross-examination the Plaintiff denied (T 78) that she had told the Registered Nurse that. How the Registered Nurse came to have made that entry was not suggested by the Plaintiff. In fairness to the Plaintiff, there is no evidence that she had been diagnosed with a "mental illness" prior to Christmas Eve 2019. 7. The Plaintiff was also cross-examined (T 79) with respect to the Wesley Hospital notes where the same Registered Nurse recorded that the Plaintiff went to "church every Sunday but stopped due to Corona Virus". The Plaintiff had told Dr Parmegiani that she had ceased going to church because of the Defendant's conduct. The Plaintiff's attempt to rationalise the hospital record in this regard was unconvincing. 8. The Plaintiff was cross-examined on notes made by Wesley Hospital on or about 27 July 2020 (Exhibit D3, page 2564), referring to an interview with the Plaintiff by a Registered Nurse at the hospital. The notes record the Plaintiff's presenting symptoms, which were recorded as "exacerbated due to conflict with next door neighbour. Patient reported that she has been experiencing these symptoms since October 2015". Consistent with her approach to questions which she knew were unhelpful to her case, the Plaintiff avoided answering questions about the notes claiming "My anxiety, this is so much – too much for me, actually". The Plaintiff confirmed that she had taken documents relating to the Defendant's alleged conduct to the Wesley Hospital (T 82), as recorded by the hospital (Exhibit D3, page 2573) because she had to "explain about how I have a sick because these things". The Plaintiff rejected the suggestion that she took the photos to the hospital to try to improve her case. 9. The Plaintiff rejected (T 83) the suggestion recorded in the Wesley Hospital clinical notes of 10 August 2020 (Exhibit D3, page 2613) that her anxiety was "situational" and that the Plaintiff would "respond to psychotherapy and medication". The notes recorded (Exhibit D3, page 2616) that on 11 August 2020, the date on which the Plaintiff was due to be discharged, she had (Exhibit D3, page 2618) "requested to stay longer", and the was "calm and engaged" during her session that day and had "stated that her anxiety has been better and that she has been using calming techniques". Notwithstanding the hospital notes, the Plaintiff denied that she had claimed that "everyone bullied me". These, and other contemporaneous records of the Plaintiff's prior statements are preferred to convenient, but inconsistent statements made by her in these proceedings. 10. The Plaintiff was cross-examined on the entries of the Wesley Hospital of 12 October 2020 (Exhibit D3, page 2716) (T 87-88). The Plaintiff suggested that what the hospital recorded as the reason for the Plaintiff becoming annoyed was not correct, and not what she had told the hospital. The Plaintiff's evidence in this regard was unconvincing. The probabilities are that what the hospital recorded was what the Plaintiff told them and that, recognising or sensing that this might not be helpful to her case, the Plaintiff denied the accuracy of what the hospital recorded. Who, other than the Plaintiff, could have reported those matters to the hospital was not suggested by the Plaintiff. The notes recorded (Exhibit D3, page 2746) "adjustment disorder with anxiety and depressed mood" on 12 October 2020. That was within two months of the Plaintiff experiencing a savage, unprovoked, random attack to which reference will shortly be made. As will also be seen, that was ten months after the last occasion on which the Court is satisfied that the Defendant did anything which could reasonably be found to have caused or contributed to the Plaintiff's condition. It does however provide some support for the Plaintiff's claim that the impact of the attack on her on 20 August 2020 was short-lived, and limited. 11. The Plaintiff was cross-examined (T 89) on statements attributed to her by Wesley Hospital in notes made on 12 October 2020 (Exhibit D3, page 2736). In response to the question "Have you ever experienced a similar problem previously? If so, what was that problem and how did you handle it? Was your handling of the problem successful?" the Plaintiff was recorded as having said "Yes, I have experienced a similar problem previously. Similar problems with low mood, poor sleep, anxiety that was resolved due to admission at WHK". The reference to WHK, it is evident, was to Wesley Hospital Kogarah. The only other admission the Plaintiff had to that hospital was in July 2020. The Plaintiff evaded directly answering questions suggesting that she had told the hospital the matters which they recorded. How the hospital could have misreported what the Plaintiff said was not explained. 12. The Plaintiff was cross-examined (T 106) in relation to the events of Christmas Eve 2019. The Plaintiff stated that she saw with her "own eyes" the Defendant throwing "pebbles" in her backyard. As is not in doubt, none of the CCTV footage of that evening which the Plaintiff produced revealed the Defendant doing that. The only action of the Defendant consistent with throwing anything was evidence given by him, which he said involved an apple. The Plaintiff has never suggested that the Defendant ever threw apples, at her or otherwise. The Plaintiff subsequently conceded that she had never seen the Plaintiff throw pebbles onto her property. The change of position in relation to the issue gives cause for concern as to the accuracy of the Plaintiff's recollection of a number of the events of that night. Were it not for the CCTV footage of the evening, the Plaintiff would not discharge the onus of proof she bears with respect to the critical events of that evening. 13. The Plaintiff confirmed (T 110) her claim that, on 2 November 2019, when Mr Nadis was at her home, the Defendant had sprayed her with a hose. The Plaintiff initially agreed that, when police attended the Plaintiff's home on 2 November 2019 she "didn't tell police that you were sprayed with the hose on that day". The Plaintiff retracted that statement and asserted that she "did tell (the police) but that is not make it anything" and asserted (T 110) that her husband "told police that you had been sprayed by a hose". The Plaintiff asserted that the Defendant had been standing on a different balcony or veranda on 2 November 2019 to that from which the Defendant had sprayed the Plaintiff on 24 December 2019. 14. There are two COPS entries of relevance in this context (Exhibit D3, page 3610). The first which was created at 17.55 on 2 November 2019 refers, erroneously, to an incident on 2 November 2019 when the Defendant and the Plaintiff's husband had words. The COPS entry suggests that police spoke to the Defendant and Mr Coolman on that day and that the "owner" of CCTV footage from cameras, inferentially the Plaintiff or Mr Coolman was "very hesitant in showing police the footage". The Defendant and Mr Coolman gave conflicting accounts of events to police. What each then asserted assumes no significance in the determination of these proceedings. 15. The COPS entry created at 6.24 p.m. on 3 November 2019 records police attending the Plaintiff's premises at 7.00 p.m. on 2 November 2019 and speaking to Mr Coolman, who alleged that he and the Defendant had a conversation at about 10.30 a.m. that morning, during which the Defendant was alleged to have stated "I have recording of you and if you don't stop, I will drill holes into your tyre and I will fix your house". The Defendant was at the time allegedly "waving his left pointer finger" at Mr Coolman. Further words of no substance ensued. Mr Coolman contacted police and "stated that the ongoing issues started when he contacted Sutherland Council in relation to Dayoub installing a shade cloth in the back yard of his premise, which will block Coolman view of the bay". 16. As is not in doubt, nothing of the kind asserted by the Plaintiff to have occurred on 2 November 2019 was recorded by police. It is significant that the police recorded, in detail, what each of the Defendant and Mr Coolman said to them on that date, and significant that Mr Coolman made no allegations of conduct involving the Defendant spraying his wife with a hose on that date. 17. Cross-examination of the Plaintiff on the COPS entry is damaging to the reliability of the evidence of the Plaintiff and, as will be seen, is relevant to determining whether the Plaintiff discharged her onus of proof with respect to the alleged assault or battery of the Plaintiff on 2 November 2019. The Plaintiff asserted (T 113) that she reported the "spraying incident" on 2 November 2019 to a female police officer named Mary Portelli. There is no evidence from Ms Portelli to that effect. There has been no explanation for the failure to call Ms Portelli as a witness. The Plaintiff rejected (T 114), contrary to what she told others at the time, that the objection to the Defendant's proposed shade cloth construction was that it was "blocking your view of the ocean" (Exhibit D3, page 3610). 18. The Plaintiff was cross-examined (T 115) with respect to a COPS entry generated on 5 October 2020 (Exhibit D3, page 3598). The police attended the Plaintiff's home that day. The Plaintiff denied (T 116) that she was taking photos of any members of the Defendant's family or of his premises, asserting that she was taking photos of "my water view". The Plaintiff asserted (T 117) that she had shown photos she had taken that day of the water view to police, and denied that she deleted any photos which she had taken (T 118). 19. The COPS entry referred to a "PN" who, it is clear, was the Plaintiff. The COPS entry recorded that when questioning the PN about the photos, "she" stated "No that she wasn't taking photos of the view from the backyard" and that "when asked if she could show police the camera reel, she stated no that she didn't want to and became quite agitated and was seen to be scrolling through her photos while being spoken to. She was seen in the reflection of her glasses to be deleting photos. She was more interested to show police 30 x photos of the same thing being her neighbour Salem Dayoub standing on the border fence hanging up a shade cloth for his backyard. While police were talking to her, the PN on numerous occasions spoke over police, did not want to comprehend what was being said. She refused to let police in to look at her cameras. PN has a number of cameras facing the neighbouring property". 20. The Court accepts the contemporaneous record of the conversation between Police and the Plaintiff on 5 October 2020. Consistent with the Plaintiff's evidence generally, the Plaintiff has demonstrated a willingness to show photographs which support her claims to police, hospitals, doctors and, as with the missing footage, and the film on this occasion, to avoid doing so when she perceives that it may be unhelpful to her case to do so. 21. The Plaintiff was cross-examined at length about the events of Christmas Eve 2019. Further and more detailed reference will later be made to that cross-examination and the CCTV footage. Although the Plaintiff sought to rely upon events which commenced at about 10.45 on Christmas Eve, she did not reveal the first of the events of that night. It emerged in cross-examination that the first thing which occurred that night was the Plaintiff appearing to shine a light on the wall of the Defendant's house, just below, but in the vicinity of the upper veranda or balcony from which the Defendant subsequently hosed the Plaintiff. Given that any such action could not have justified any subsequent conduct of the Defendant, that evidence goes primarily to the credibility of the Plaintiff. The Court is satisfied that the Plaintiff did not wish it to be known that the first potentially inappropriate action of that evening may have been perpetrated by her. The Plaintiff eventually (T 138-139) agreed that the first thing which happened on Christmas Eve 2019 was her shining a torch on the wall of the Defendant's house. That is consistent with the Plaintiff's demonstrated selective recollection of disputed events. 22. As recorded above, the cross-examination of the Plaintiff with respect to the missing CCTV footage, from 10.55 p.m. to 11.36 p.m. on 24 December 2019 was damaging to the credibility of the Plaintiff. In response to necessarily lengthy cross-examination (T 126-130), the Plaintiff provided contradictory, confusing and unconvincing explanations of to whom, if anybody, she had ever shown the missing footage, how it came to be recorded, if it in fact was, and why the Plaintiff had been unable to produce the missing footage. It is not suggested that, either during the missing footage, or otherwise on Christas Eve 2019 is there any footage showing the Defendant throwing pebbles or other objects at the Plaintiff or her premises. Presumably realising that her answers were unconvincing, the Plaintiff resorted to complaining that her anxiety was "just so absolutely hard" and that "she was real painful" that she could not remember accurately. In response, and in fairness to the Plaintiff, the Court (T 130) then took the morning break early. 23. The Plaintiff was cross-examined (T 146) on the statement which she made to police on 26 December 2023 (Exhibit P3). The Plaintiff's account of the events commenced at 10.45 p.m. and recorded that, after hearing a "loud bang" and noticing "8 broken eggs in the front courtyard" she took a photo of the eggs and went out the side garage door and saw the Defendant standing on the "top rear balcony of his residence". The Plaintiff said that she shone a torch on the "side steps and the roof of my house to look for further damage". The Plaintiff did not disclose that, before anything was alleged to have been done by the Defendant on Christmas Eve 2019, at 10.18 p.m. she had shone her torch on the wall of the Defendant's home below and in the vicinity of the balcony on which he was then standing. 24. The Plaintiff recounted, accurately Exhibit P2 confirms, that the Defendant sprayed her with water from a garden hose which he "pointed directly" at her from the balcony of his premises, which were "much higher" than where the Plaintiff was standing. The Plaintiff said that the Defendant "yelled to me fucking crazy bitch, I want to kill you". The Plaintiff recounted how she was subsequently hosed by the Defendant. The Plaintiff alleged that the Defendant "started throwing over 10 pebbles at me and said again "You fucking crazy bitch I want to kill you"". The Plaintiff said that "none of the pebbles hit me as I was moving to dodge the pebbles". Exhibit P2 provides no support for that part of the Plaintiff's account of the events of Christmas Eve 2019. Nor does any other evidence. 25. The Plaintiff further stated that she "had a whistle in my pocket" which she blew to get her husband's attention. Exhibit P2 provides no support for that claim. Nor does any other evidence. 26. The Court drew to the Plaintiff's attention (T 148) the contrast between her assertions whilst giving evidence that "I can't do this" and the robust and non-responsive answers which she also gave, upon which contradiction, properly, Counsel for the Defendant would seek to rely. That caution did not appear to influence the Plaintiff's attitude to answering questions in cross-examination. 27. The Plaintiff agreed (T 148) that up until 10.52 p.m. there were "only two incidents shown on the camera" of the Defendant hosing the Plaintiff. The Plaintiff did not mention in her statement to police of 26 December 2019 that, during the second incident when the Defendant hosed her, she was filming the Defendant with her camera. When cross-examined about alleged differences between what the Plaintiff told the police on 26 December 2019 and told the Court in these proceedings, the Plaintiff was evasive, and reiterated that she could not "actually remember everything" and "I don't actually think about for this incident", whilst reiterating the truth of her complaints. The Plaintiff's complaint to Police on 26 December 2019 is significant, being closest the report in time to the events of Christmas Eve, yet sufficiently long after the events for the Plaintiff's recollection to be unaffected by any shock the Plaintiff suffered as a result of them. The Plaintiff's alleged symptoms do not include memory loss. 28. The Plaintiff was asked about evidence she gave in the Local Court with respect to the number of times when the Defendant allegedly called her a "crazy fucking bitch" and said "I want to kill you". The Plaintiff was unable to recall the number of times she told the police, the Local Court or this Court that the Defendant said these things. Whereas the Plaintiff's inability to remember some details of the events of Christmas Eve 2019 assumes significance, these apparent deficiencies do not damage either the credibility or reliability of the Plaintiff's account of the events of that night. In the circumstances, failure of memory with respect to matters of detail of that kind is not necessarily indicative of mendacity, or an intention to mislead, or an inaccurate recollection. 29. The Plaintiff was cross-examined (T 155) on her statement to police on 24 August 2020 with respect to the unprovoked assault upon her in Belmore Park on 20 August 2020 by a person later identified as Rebecca Blessington (Exhibit D3, page 5596). The Plaintiff agreed that she had said in her statement that she was "very scared and do not understand why this happened to me. My heart is still in shock and am having nightmares of someone trying to kill me". The Plaintiff agreed (T 156) that the attack on her was "completely random" and "without any provocation or anything of the kind" and that what she told the police at the time was true. Having been made when they were, and in the circumstances in which they were, the statements made by the Plaintiff are likely to be the most accurate account of her reaction to the attack. The Plaintiff was justified in believing that Blessington was trying to kill her. 30. The Plaintiff was asked (T 156) what she told Dr Parmegiani about the attack. The Plaintiff replied "This incident, of course, he approve, because I hurt, but I – this is not for the effect my mental health, because I don't know her, she doesn't know me, at all, and is – is very sad to this lady, is doing this because she got mental illness. I don't know her; I don't know – I don't know her, anything about, but he [sic] got – she got mental illness. Policeman told me so, so this case, this incident no makes no any makes me any mental effect for my mental health, because is suddenly just one accident only". 31. It was put to both the Plaintiff and to Dr Parmegiani in cross-examination, and to the Court in final submissions that, contrary to their assertions, the likely effect on the Plaintiff's mental wellbeing of the vicious attack upon her on 20 August 2020 was far more significant than anything done by the Defendant on Christmas Eve 2019. During the course of cross-examination (T 158) the Plaintiff agreed that, during the assault, Blessington was "stabbing my arm – shoulder", that she had pushed the Plaintiff to the ground, and was "pushing down to me", that upon being stabbed she was in "sharp pain and I felt it go in", that she was "screaming very loudly" and that Blessington "kept smashing me in the middle of my face with something". The Plaintiff was adamant (T 159) that she "recovered from this quickly". The Plaintiff was unable to remember how long it took for her to recover from the incident but insisted that it was "very quick". 32. The Plaintiff was asked (T 159) "Are you saying you can remember Mr Dayoub's incident better than this (the Blessington attack)" in response to her suggestion that, because it was "nearly 4 years ago" she could not remember details with respect to either incident. The Plaintiff responded "This is I can easy to forget, because I don't know her, she doesn't know me, but also it's I'm a – it's actually passed. This kind of woman is very – I feel very sorry about for her, because she is mental illness for a long time, police told me, and she doesn't know what she do. She's doing for the – not on purpose for the somebody kill. So I can actually – it's easy to forget this incident, because she's not want to pointing me for the kill me, because she want to do anyone. I got just for the bad luck that day". 33. The Plaintiff agreed (T 160) that she was "almost beaten to death" when attacked by Blessington, but was adamant that the Defendant's conduct was "so much different" that it continued to impact upon her, whereas the Blessington attack did not. 34. The Plaintiff was cross-examined at length about the impact on her of the Blessington attack, during the course of which the following exchanges occurred "Q. How long did it take for you to recover from this incident, Mrs Cho? A. That hip takes more than month, but I don't ‑ shoulder is very quick. That actually takes around two, three weeks to heal my ‑ I can't exactly remember, really. I can't exactly how long, but that is actually all heal very quick. I can't remember how long, how long take time. No, actually. Q. You can't remember? A. How long, yes, it takes, because this is also four years ago. Yes. It's 2020 August. Q. This was after they have sprayed you with the hoses, wasn't it? A. Yes. Q. When you say it was four years ago, what are you trying to say? A. This is 2020. Nearly four years ago, yes, for the ‑ yes‑‑ Q. Are you saying you can remember Mr Dayoub's incident better than this? A. This is I can easy to forget, because I don't know her, she doesn't know me, but also it's I'm a ‑ it's actually past. This kind of woman is very ‑ I feel very sorry about for her, because she is mental illness for a long time, police told me, and she doesn't know what she do. She's doing for the ‑ not on purpose for the somebody kill. So I can actually ‑ it's easy to forget this incident, because she's not want to pointing me for the kill me, because she want to do anyone. I got just for the bad luck that day. Q. Is that what you say, it was bad luck? A. Just bad luck for that day, yes. Q. Mrs Cho, on your evidence you say that Mr Dayoub's conduct was worse than what happened on 20 August 2020? A. What? Q. You say that all of your injuries are because of Mr Dayoub? Is that what you say? A. No, this is ‑ when I ‑ why I come to this ‑ happened, because I have to go to a psychiatrist that night. That's why I got this incident. I don't have any ‑ Mr Dayoub's case, I don't need to go this time and this happen to come to me, because on the way I go to doctor. It's Dr Zhang, and on the way his office and happen to this comes to me. So is ‑ this is the ‑ yes, for the all that connecting with Mr Dayoub's case for I hurt him. Q. I'm sorry, Mrs Cho, I just didn't quite understand that. Do you say that Mr Dayoub has caused all of your injuries at present? A. That ‑ yeah, that is one of the part. That's the reason why I go to this ‑ I was go to doctor's office, that's the psychologist ‑ psychiatrist. Yes, but this is nothing absolutely effect my mental absolutely condition at all. Q. You see, Mrs Cho, you're lying to the Court, aren't you? A. No, I'm not liar. Q. You were almost beaten to death in this incident, Mrs Cho. A. That time, yes. Q. You say that Mr Dayoub spraying you with a hose caused all of your injuries over this? A. That is and this one different. So much different. Q. It is different in the sense that this incident is substantially worse than anything Mr Dayoub did to you. Do you agree with that? A. This is more hurting my body, but the story is sad story, because this woman is a poor woman. I didn't know this woman at all. I didn't know what is this name, whatever, but poor, poor woman is absolutely different. I'm a Christian. I should be happy for this lady, like this lady, mental illness lady. In my brain is absolutely ‑ is sorry to her, really. Q. Mrs Cho, what you're doing in this case is you're putting everything on Mr Dayoub, aren't you? A. I'm honest to talk. Q. I'm sorry, what was that? A. I'm talking honest talking to you. Q. You see, you suffered substantially injuries in this incident, didn't you? A. I have painful, yes. Q. You had nightmares, Mrs Cho? A. Yes, a ‑ yes, it's true for the‑‑ Q. When you went to your doctors‑‑ A. ‑‑one, two weeks only, yes. Q. When you went to Dr Parmegiani, you told him that this incident had no impact on your psychiatric state? A. Yes, I tell him to that, yeah. Q. In fact, Dr Parmegiani took a history from you, didn't he, about what happened? A. Yes. I talk‑‑ Q. What did you tell him? A. Yes, I talk to me psychologist ‑ psychiatrist, Dr Zhang, also. This is not for the mental effect my ‑ for me also. Q. We've just seen the footage of the night of the incident of the 24th. You expect this Court to believe that that was worse than this incident with Ms Blessington? A. That's my genuine fact because‑‑" (T 159 line 16 – T 161 line 12) 1. The Court cannot accept the Plaintiff's rejection of the suggestion that the Blessington attack was "substantially worse than anything Mr Dayoub did" to her. The Court's findings with respect to the reliability of the Plaintiff's evidence with respect to this issue, and generally, are relevant in this context, and when the competing opinions of Dr Parmegiani and Dr Roberts are considered. Dr Parmegiani did not effectively question the reliability of the Plaintiff's claims with respect to the impact of the Defendant's conduct on her, or the asserted absence of enduring impact on her of the Blessington attack. Conversely, Dr Roberts clearly rejected the Plaintiff's claims that the Defendant's conduct had a greater and more enduring impact on her than did the Blessington attack. 2. In a non-responsive answer to a question (T 161) with respect to her being "some sort of a property investor", the Plaintiff said that "for years I didn't do anything about the investment business". The reliability of the Plaintiff's evidence assumes significant relevance in the context of her economic loss claims. Ultimately, although the Court does not accept the Plaintiff's claims in that regard, rejection of them does not turn entirely on the unreliability of her evidence. The absence of corroboration of the Plaintiff's allegations by her husband, or otherwise, together with the circumstantial and source evidence to which the Court will refer, enable the Court to make the findings it does in that regard. The Plaintiff said (T 162) that "around 2015", after "moving houses" to her present home she and her husband ceased to have financial difficulties. What the financial difficulties were, and how they were resolved. was not explained. 3. The Plaintiff was cross-examined on an application she and her husband lodged with BMC Mortgage Corporation in 2014 to complete the purchase of 12 Loch Lomond Crescent (Exhibit D3, pages 1710-1721). In the course of that document (Exhibit D3, page 5714) the Plaintiff asserted that she was self-employed on a "full-time" basis from 1 July 2000 to the date of her application. That was contrary to the Plaintiff's evidence to which the Court has earlier referred. The loan which the Plaintiff and her husband sought was for $1.3 million, the total purchase cost of the property being stated as $3,478,056, $2,178,058 of which was being provided by the Plaintiff and her husband (Exhibit D3, page 5719). The "financial position" (Exhibit D3, page 5723) of the Plaintiff and her husband was represented as comprising a property at Arncliffe worth $1.8 million, a term deposit of $1,203,057.53 and savings of $60,000. The only significant liability disclosed was a mortgage of $684,958.14 to Citibank. The Plaintiff disclosed her income as "general manager" with an income of $57,298. The Plaintiff's husband was also described as a "general manager" with a yearly income of $57,297. The Plaintiff and her husband completed the declaration (Exhibit D3, page 5730) which recorded that "all statements made in this application are true and made for the purpose of obtaining the loan" which they sought. 4. The Plaintiff was unable to explain (T 169) why "general manager" was on the loan application, stating that she was "looking after property all the time". The Plaintiff suggested that responsibility for the entry rested with her accountant. The accountant was not called as a witness in the Plaintiff's case. Contrary to other evidence which she gave, the Plaintiff asserted that it was a "full-time job to looking after investment property". The evidence does not establish that the Plaintiff has at any material time looked after, or been involved in the management of property on a full-time or other significant basis. The Court is satisfied that the Plaintiff has, for the purpose of advancing her economic loss claim, grossly exaggerated the role which she claims that she played in property management prior to the events of Christmas Eve 2019. 5. Although further and more detailed reference will be made to it in the context of consideration of the Plaintiff's economic loss claim, cross-examination of her on the exclusive management agency agreement between herself and AAM Delta Pty Limited t/as MMJ South with respect to Mount Warrigal was damaging of the Plaintiff's credibility and the reliability of her evidence, and contrary to the Plaintiff's unparticularised claims with respect to her involvement in property management. 6. Cross-examination of the Plaintiff with respect to the listing of the Mount Warrigal property (T 178) provided further support for the Court's adverse view of the reliability of the evidence of the Plaintiff with respect to her economic loss claim. The sales inspection report and exclusive agency agreement (Exhibit D3, pages 4958-4965) clearly record that the Plaintiff placed the property on the market for sale on 4 December 2019 (Exhibit D3, page 4959), three weeks prior to the events of Christmas Eve. The Plaintiff was obliged to acknowledge in cross-examination that she had decided to sell Mount Warrigal "before Mr Dayoub sprayed you with the hose" (T 179). The Plaintiff sought to rationalise that by claiming that the Defendant had started "hurting" her in "September and October and November" and that, by 4 December 2019 managing the property was too stressful and that, on the advice of her husband that she "better sell" the Plaintiff listed the property for sale (T 179). The Plaintiff's husband did not give any evidence to that effect. There is no documentary, circumstantial or other evidence supportive of the Plaintiff's claims. 7. The Plaintiff stated that the money from the sale of the property was used to "pay back" the mortgage on 12 Loch Lomond (T 179). The Plaintiff's evidence with respect to what became of the proceeds of sale, and what money was owed on 12 Loch Lomond was evasive and vague. The Plaintiff ultimately said (T 180) that she did not "do any financial figures" at all, and that her husband did all of those matters. The Plaintiff's husband did not assert that he had given the Plaintiff advice or assistance with respect to the sale, and gave no evidence about "financial figures". 8. The Plaintiff rejected the suggestion (T 181) that she was pursuing the Defendant because she believed that, unlike Blessington, he "has money", and asserted that "I don't want his money at all. I want him to learn about [sic] lesson". The Court does not accept that assertion by the Plaintiff. Despite disavowing any desire for the Defendant's money, the Plaintiff asserted (page 182) that she sought to recover the losses she claimed had been incurred with respect to rental properties because of her inability to manage those properties. The Court does not accept, for reasons which will be further detailed in the course of considering the Plaintiff's claim for economic loss, that anything done by the Defendant caused the Plaintiff to sell either of her investment properties, or contributed to her decision to do so. The evidence does not establish that the decision to sell each of the investment properties was other than a commercial decision, albeit the details of the transactions, the real reasons for them, and their outcomes have not been revealed by the Plaintiff or her husband. 9. The Plaintiff was cross-examined (T 195-196) about the photographs that she took in January 2023 of the Defendant cleaning the boundary wall which divided the parties' properties. The Plaintiff rejected the suggestion that she took the photos to Dr Parmegiani to try to advance her claims. The Plaintiff's evidence in that regard was unconvincing. The Court is satisfied that the Plaintiff took those photographs to Dr Parmegiani to try to influence his opinion, particularly in view of Dr Parmegiani's opinion that, as at October 2022, the Plaintiff's condition was in remission or partial remission. The Plaintiff has not amended her Statement of Claim to rely upon the events of January 2023. Even if she had, doing so would not have advanced her intentional tort claims. 10. Consistent with her previous conduct, the Plaintiff took the photos of the Defendant cleaning his balcony in January 2023 to the Police. There is no evidence that the police took any action as a result of that disclosure. In view of the outcome of criminal proceedings against the Defendant, it is improbable that police would not have at least spoken to him if the alleged conduct may have been illegal. 11. As will be seen when his evidence is considered, Dr Parmegiani accepted the Plaintiff's interpretation of what she recorded in January 2023. The Court has looked at the Plaintiff's photographs. They are equivocal. Dr Parmegiani, largely uncritically, accepted the Plaintiff's complaints about the Defendant in each of his reports. Dr Parmegiani was influenced by the photos, as the Plaintiff intended that he would be. 12. The Plaintiff was further cross-examined (T 208-215) with respect to evidence previously given by her in the Local Court in relation to the CCTV footage which the Plaintiff recorded late on 24 and early 25 December 2019. The following exchange occurred: "Q. Mrs Cho, do you remember giving evidence in the Local Court on 4 February 2021? Do you recall giving evidence in the Local Court on 4 February 2021? A. Yeah. Q. Mrs Cho, did you tell the magistrate at the Local Court that your niece assisted you downloading the CCTV footage? A. She's only helping for how to do, how to work for the computer, and I doing all everything. She just helping for how ‑ working for computer. She just show how do it so I just listening how to do it and all I'm doing for record myself. Q. Mrs Cho‑‑ A. Yes. Q. ‑‑she helped you download the CCTV footage; is that what you told the Court? A. No. It's a misunderstand that is actually that time when I have talk, because he ‑ she is teach me how to ‑ because I'm not very good with the computer so I have to ‑ how this is working, and she's just show me how to working, and then I do it myself, yes. Q. You did it yourself, Mrs Cho? A. Yes, and she show me how to do, just she doesn't‑‑ Q. What did she show you? A. She doesn't look at anything about for that video‑‑ Q. How do you download the footage from the computer, Mrs Cho? Can you explain it to his Honour? A. Yes, that's the Smart Player and then put something on. How to loading for that, for make it USB record. She just show me but she doesn't know ‑ she doesn't see anything about that video. And also‑‑ Q. I'm asking you, Mrs Cho, if you can explain how to download the footage from your computer onto a USB. Can you do that? A. That's ‑ I have to get from my record and my record to USB to put it in the computer, and is show how is on the recording same copy, yeah. I have not actually is..(not transcribable)..computer, doing that kind of things because I never have before that is make it USB in myself, so I just want to know about from her. That's it. And also very short time she's..(not transcribable)..but is actually I'm doing all absolutely. Q. Mrs Cho, I'll give you one more opportunity. Can you explain the process of downloading CCTV footage from your computer onto a USB for his Honour? A. Yeah, she is just show me how work for the ‑ using computer. Q. I'm sorry, Mrs Cho, that's not my question. Can you explain the process of downloading footage from your computer onto a USB? A. How I explain about that? It's just put it in and‑‑ Q. Put what in? A. That's ‑ I'm doing that after that in myself. I can do that after that because‑‑ Q. Mrs Cho, I know you say you can do that yourself but can you explain the process of how to download CCTV footage from the computer onto a USB? A. You do through Smart Player on‑‑ Q. Smart Player's how you view the footage; is that right? A. And ‑ yes, and see that Smart Player for from USB from record, and you can see that. Q. Mrs Cho, start again from the beginning, please? A. Yeah, Smart‑‑ Q. How do you use the computer to download CCTV footage from your cameras? A. Yeah, that's my camera‑‑ Q. Can you please explain from step 1? A. ‑‑that's USB. My camera‑‑ Q. What's step 1, Mrs Cho? A. ‑‑is record, okay? Q. What's the first thing you need to do, Mrs Cho? A. I have to get from ‑ I have to ‑ I got the‑‑ Q. You're sitting at your computer, Mrs Cho. What do you need to do when you're sitting at your computer? A. I'm using for Smart Player for the my computer, yeah‑‑ Q. Mrs Cho, you've sat at your computer. What do you need to do to access the footage, first of all? A. Yeah, put it in a computer‑‑ Q. Put what in the computer? A. And ‑ is downloaded to Smart Player, and I see that ‑ what I record‑‑ Q. How does it get downloaded to Smart Player‑‑ A. ‑‑and then ‑ yeah, and then record for the same another copy, same copy for the Smart Player to ‑ I can just say that because I can do these things. Is ‑ she just show me for ‑ just for the ‑ how using for USB to copy to other USB is a copy, yes. Q. Is that what she showed you, how to copy from one USB to another? A. Yes. Q. That's all she showed you? A. Yeah, that kind of things. Q. She didn't show you how to access the footage? A. We have ‑ I have just for the ‑ is the same thing, same is actually just get record from a USB to a copy, is actually how keep it in the computer to and then another copy to other USB. She just show me that, but actually is only show time, and also I can't remember actually much all what she show me at that time because long time ago. 2020, January, yes." (T 208 line 31 – T 210 line 36) 1. As previously stated, the Plaintiff's evidence with respect to the missing footage was confusing and inconsistent. Ultimately, the significance of the cross-examination with respect to the missing 40 minutes is limited to the credibility of the Plaintiff, given that no-one suggests that anything happened during that time. 2. The Plaintiff was cross-examined (T 217-218) on photographs of her doing physical work. Although not conclusive, what was recorded in the photographs does not sit comfortably with the Plaintiff's claims with respect to the impact on her of the events of Christmas Eve 2019. As with her allegations about the impact on her of the Defendant's conduct on Christmas Eve 2019, the Plaintiff's claims were exaggerated, and not supported by reliable evidence. The evidence of Woo Hiun Kim 1. The Plaintiff's nephew Woo Hiun Kim swore an Affidavit on 26 August 2022. Mr Kim's Affidavit dealt with the incident on the afternoon of 26 August 2019. Mr Kim was cross-examined by AVL from the United Kingdom where he resides. 2. The first matter to which Mr Kim referred was a statement by the Plaintiff to the Defendant that a "beam is too close to the boundary" and was "breaking the council regulations". Mr Kim said that the Defendant responded "It will not go well for you if the council gets involved" and, alleged that, after the Plaintiff asked "What do you mean?" the Defendant replied "You will see, just wait and find out". As is not in doubt, the Plaintiff had complained to the council about the offending beam by 30 July 2023. The Plaintiff claimed that she felt threatened by the Defendant's words. There is no evidence that the Plaintiff ever "backed off" on her complaints to the Council. 3. Mr Kim referred to the Defendant calling the Plaintiff "a fucking crazy stupid bitch", a "stupid fucking woman", and "fucking stupid woman". Mr Kim said that he "felt threatened and was frightened for the Plaintiff's safety". He stated that the Plaintiff "needed to sit down" inside her house, and was "shaking and short of breath". 4. That night Mr Kim accompanied the Plaintiff to Sutherland Police Station. The Court has earlier recorded the terms of the COPS entry with respect to their attendance. The COPS entry (Exhibit D3, page 3429), created on 28 August 2019, recorded the Plaintiff and the Defendant having become "involved in an argument about a fence", and "ongoing issues with the fence". The COPS entry recorded "there were no threats made to the victim, however she feels that the (Defendant) was rude towards her". The entry concludes "there were no offences disclosed and the report is for record only". 5. Mr Kim confirmed in cross-examination (8 November 2023, page 229) that he was asked to give evidence in the proceedings two to three months before he swore his Affidavit. That would have been in about May or June of 2022, more than two and a half years after the incident on 26 August 2019. Mr Kim rejected any suggestion that he and his aunt had jointly prepared Mr Kim's Affidavit. The Court does not accept any suggestion that Mr Kim and the Plaintiff "put their heads together" with respect to Mr Kim's Affidavit. Although there is considerable similarity in the narratives of the incident provided by the Plaintiff and Mr Kim, the Court does not accept that their accounts were identical, or so similar, as to suggest that Mr Kim and the Plaintiff had collaborated in preparing their Affidavits. 6. Mr Kim maintained that (T 237) that when he and the Plaintiff attended the police station later on 26 August 2019 he was "scared for her safety". It is unlikely that, had the Police been told that, it would not have been mentioned in the COPS record. Although, sensibly, Counsel for the parties agreed that observance of the rule in Browne v Dunn would be appropriately limited, and did so, it is not insignificant that Mr Kim was not challenged in relation to his allegation that the Defendant referred to the Plaintiff in the terms recorded in his Affidavit. Acceptance of Mr Kim's evidence in that regard is consistent with the statement to police that the Defendant had been "rude" to the Plaintiff. Save in that respect, and without any adverse finding with respect to Mr Kim's credibility, or the reliability of his evidence, Mr Kim did not assist the Plaintiff's case. The evidence of Angelo Nadis 1. Mr Angelo Nadis was a witness in the Plaintiff's case. Mr Nadis swore an Affidavit on 3 August 2022. Mr Nadis deposed in his Affidavit to being at the Plaintiff's home on the afternoon of 2 November 2019. Mr Nadis alleged that the Defendant then held a mobile phone with the camera pointed towards where he was standing, prompting him to say to him "you don't have authority to take photographs of me", to which the Defendant allegedly replied "You fucking idiot. I can do whatever I want on my property". The Defendant then allegedly said to Mr Nadis "and I'll fucking fix you too", at a time when he was pointing a garden hose at himself and the Plaintiff. Mr Nadis said that he asked the Defendant "Are you threatening me?" to which the Defendant allegedly replied "You fucking idiot bitch slut". The Defendant then allegedly sprayed a stream of water from the hose onto the Plaintiff and Mr Nadis, and continued to do so for "a few seconds", soaking Mr Nadis. Mr Nadis alleged that the Defendant then raised a hand and extended his "ring finger and thumb in the shape of a gun pointed towards the Plaintiff", and that the Defendant "appeared to me to be agitated and aggressive". The Plaintiff and Mr Nadis then went inside the Plaintiff's house. 2. Mr Nadis also recorded his observations after he arrived at the Plaintiff's home on Christmas Eve 2019. Mr Nadis alleged that, after Christmas Eve 2019 he "observed changes in the Plaintiff's behaviour and demeanour", of which he gave little detail. 3. Although Mr Coolman complained to police on 3 November 2019 about statements allegedly made to him by the Defendant on 2 November 2019, there is no COPS entry in relation to the alleged events of 2 November 2019. Having regard to the Plaintiff's history of complaining to police, it is improbable that, had anything of the kind alleged by the Plaintiff and Mr Nadis on that day occurred, the Plaintiff would not have reported that to the Police. The parties' history of Police involvement suggests that it is improbable that, had the Plaintiff and/or Mr Nadis complained in the terms alleged in these proceedings, the COPS entries would not have recorded their complaints. 4. Mr Nadis was cross-examined with respect to credit, and the events of 2 November 2019. In cross-examination (T 261) Mr Nadis was referred to his Affidavit and his allegation that "you were sprayed by a hose by Mr Dayoub on 2 November? You don't remember it?" to which he replied "I don't remember, no". As the cross-examination developed, firmly but courteously, Mr Nadis became evasive and argumentative. 5. Mr Nadis was cross-examined at length about events which occurred in 2001 or earlier in the context of Family Law proceedings with his former wife. The cross-examination was asserted to go to Mr Nadis' credibility. There was no objection to the cross-examination. With respect to both Counsel, the subject matter and its antiquity meant that the cross-examination did not materially impact on the credibility of Mr Nadis. Perhaps understandably, Mr Nadis became quite excitable during the cross-examination about events involving his former wife from two decades earlier. 6. The Court is not persuaded that anything arising from the lengthy cross-examination of Mr Nadis with respect to events in or prior to 2001 militates against acceptance of his allegations with respect to events in 2019. There is no evidence that Mr Nadis recorded his version of the events of 2 November 2019 at any particular time prior to swearing his Affidavit more than two and a half years later. Mr Nadis' admitted absence of recollection of the event combined with the absence of any complaint to the police by the Plaintiff with respect to it militates against finding the Plaintiff's allegation made out. 7. Mr Nadis' evidence with respect to the events of Christmas Eve 2019 does not materially advance the case of either party. There is no reason to reject his evidence about what he saw when he arrived at the Plaintiff's home. Doing so does not assist the Plaintiff's case. The evidence of the Defendant 1. It is unclear whether English is the Defendant's first language. Conscious as a result of how the Defendant answered questions that it may not be, the Court has avoided an overly literal consideration of the Defendant's evidence. Relevant in that regard are circumstances which impact upon the probabilities of the Defendant's evidence being truthful and reliable, what he has previously said, and his obvious substantial financial and reputational motivation to present a very different version of critical disputed events to that advanced by the Plaintiff. Save on one or two occasions during his cross-examination, the Defendant was not evasive or argumentative, and did not make speeches or offer self-serving or non-responsive explanations for his conduct. Whilst this necessarily limited the scope for destructive cross-examination arising from such an approach to giving his evidence, and particularly by comparison with the Plaintiff, the Defendant presented as a generally more reliable recounter of the facts than the Plaintiff. The Defendant did not, and could not dispute what the CCTV footage of Christmas Eve revealed. 2. The Defendant was cross-examined (T 343) in relation to his asserted belief that he could "do whatever you like on your land and no-one can tell you what to do and what not to do". The Defendant responded "of course, except the council, not the neighbours". The Defendant rejected the suggestion of Mr Coolman in his Affidavit at paragraph 16 that he "crunched … into a ball" and threw away the notice of council regulations which Mr Coolman handed to him on an unspecified date in August 2019. The Court has not seen a copy of those regulations. The conduct of the Defendant on Christmas Eve was consistent with his believing that he could do whatever he liked on, or from his own land. 3. The Defendant denied that he had done as Mr Coolman alleged. Mr Coolman was not cross-examined on his allegation in that regard. On balance, the Court is persuaded that Mr Coolman's account of the handing of the council notice, and the Defendant's treatment of it, is more likely to be correct. Ultimately little turns on that preference, but it is consistent with a broader theme advanced by Counsel for the Plaintiff in cross-examination of the Defendant, which was that the Defendant was so angered by the Plaintiff and her husband's frustration of his construction of the shade awning that he resorted to verbal and physical violence in order to cause the Plaintiff fear, stress and anxiety. As is not in doubt, whatever the Defendant's intentions, they had no impact on the Plaintiff or Mr Coolman in terms of action with the council. It is not in doubt that, whether it was six months or twelve months before it happened, the Defendant had to move the offending beam one metre from the boundary between the parties' properties, and comply with the council's requirements with respect to his pool shade. This cannot have best pleased the defendant. 4. It is probable having regard to the cross-examination of the Defendant (T 346) that he did say to the Plaintiff that it would "not go well for you if council gets involved" on 26 August 2019. Whether he knew that the Plaintiff had already gone to the council is unclear. Whatever the Defendant's intention, the Court does not accept that the Plaintiff was intimidated from persisting with her complaint to the council, which she had lodged more than three weeks earlier, or that she was fearful for her safety. As recorded earlier, the report to Police with respect to 26 August 2019 was that the Defendant had been "rude" to the Plaintiff, which was an accurate statement. The absence of a reported threat to the Plaintiff is significant. 5. The Defendant's evidence in cross-examination with respect to his anger when he called the Plaintiff a "fucking crazy stupid bitch" was disingenuous. There is no doubt that the Defendant was, at least, "pretty angry" when he said those things. The evidence is clear that, for the approximately five years prior to the erection of the beam for the Defendant's shade cloth, the parties had lived side by side without incident. Despite the Defendant's denials, it is clear that the Plaintiff and Mr Coolman's opposition to the construction of the pool shade angered the Defendant, and marked the commencement of unpleasant, and ultimately unlawful exchanges between the parties. 6. The cross-examination of the Defendant (T 349) confirmed that, despite his claim that he was merely "annoyed", he was very angry about the interference with what the Defendant considered to be his right to deal with his property in whatever way he saw fit. The Defendant denied (T 340) that, because of his anger over the Plaintiff's complaint to the council he "decided to embark on a campaign of harassment, threats and intimidation of the Plaintiff". Whether pursuant to a campaign or not, the Defendant's conduct on Christmas Eve 2019 contained each of those things. 7. The Defendant pointed out, and the Court accepts, (T 351-252) that the replacement of a 3 metre section of boundary fencing was undertaken at a time when he was not present, and was done by contractors. The Defendant's photographs of the replaced section of fencing are consistent with his assertion that it was an improvement on the previous fencing. The Defendant's explanation for his not seeking the consent of the Plaintiff before commissioning the replacement of the section of fence was credible in the circumstances as they had become by that time. 8. Cross-examination of the Defendant with respect to the conversation with Mr Coolman on 2 November 2019 (T 354-356) arouses suspicion. The Defendant's explanation was not inherently improbable, or inherently incredible. He may or may not have said and done the things referred to at that time. The Court does not have an actual persuasion that the Defendant drilled holes in motor vehicles owned by the Plaintiff or Mr Coolman, or threw metal shavings onto his property. He may or may not have done some or all of those things. The Defendant's cross-examination (T 357) with respect to the other alleged events of 2 November 2019, the hosing of the Plaintiff and Mr Nadis, was not internally inconsistent, contradictory or implausible. 9. The Defendant's allegation that he did not call the Plaintiff a "fucking idiot bitch slut" is not consistent with the Defendant's admission that he used very similar language to the Plaintiff on 26 August 2019. The Court accepts that the Defendant did say "I will do whatever I want on my property" as that was undoubtedly his view at the time, and remained so, subject only to such limitations as the council could impose upon him in that regard. The Defendant denied having held up his hand in the shape of a pistol. That may or may not have happened. The Court is not persuaded on balance that it did. 10. The Defendant was cross-examined at length on the CCTV footage of Christmas Eve 2019. The CCTV footage speaks for itself and the Court can have regard to it as evidence of what occurred, without needing to impermissibly draw inferences or make assumptions of the kind which the Court of Appeal explained in Blacktown City Council v Hocking that it could not. The Defendant consistently maintained that when the Plaintiff was hosed on that evening it was in the course of the Defendant's attempts to stop her taking photos or videos of him with her phone. The Defendant acknowledged, as he had to, that the Plaintiff was likely to "get wet" as a result of his conduct using the hose in a "narrow needle like beam", and in fact did get wet. 11. The Defendant maintained that his sole purpose in spraying the Plaintiff was to stop her either shining a torch on his property or taking photos or video recordings of him with her phone. Any shining of a torch on the Defendant's property preceded his spraying of the Plaintiff by more than half an hour, during which time there is no evidence of the Plaintiff directing a torch onto the Defendant's property, or otherwise doing anything which could reasonably have invoked his ire. The Plaintiff first took photos of the Defendant after he had first hosed her. The Plaintiff's CCTV coverage of the boundary wall, and nearby wall of the Defendant's premises was operating well prior to the Defendant first hosing the Plaintiff. In any event, the Defendant does not suggest that the hosing was in response to the CCTV footage. Although the Court does not recall any precise evidence in that regard, the Plaintiff's CCTV camera recording activity in that area had been in place well prior to Christmas Eve 2019. 12. In cross-examination of the Defendant (T 369) the following exchange occurred: "Q. Do you suggest that water of that volume and that width would be appropriate to just try to hit a mobile phone or a torch? A. Both probably. She got one each hand. She got the torch and she got the phone. Q. There'd be no prospect whatsoever of it not also striking the person holding the phone and the torch, would there, with water coming like that? A. Yes, it does because I..(not transcribable).. on the phone where she's taking photos. Q. Mr Dayoub, streaming water towards somebody as you can see in that photo, it's inevitable that would be going to hit the person and wet them, isn't it? It's obvious‑‑ A. She might've got wet, yeah. Q. ‑‑isn't it? Isn't that obvious to you? A. I'm not denying it. I sprayed with water and she might've got wet, but she continued filming, using the torch. If she was scared and she's worried about her health, she could've sat inside. She went outside three, four time and she calling out, "You throwing eggs, you throwing eggs." I say ‑ that's when I go sit down and she came out. Q. You were angry with her? A. No. I was upset. I was upset how she's doing this. Our neighbours ‑ we're neighbours. I've been neighbours for 40 years with other neighbours, never have problem until she came in. Q. You decided to just simply assault her and batter her by spraying water onto her, didn't you? A. No, I'm trying to stop her from filming, that's all. That's what I was doing." (T 369 lines 19-48) 1. To the extent that the Defendant appeared to assert that he was solely aiming water from his hose at the Plaintiff's camera or phone, such a suggestion is disingenuous, and rejected. As is self-evident, the Plaintiff's torch or her mobile phone did not operate themselves- the Plaintiff operated them. The Defendant's clear intention was to dissuade the Plaintiff from continuing to do those things, by directing his hose at her, with the intention that the Plaintiff would be hit by the strong jet of water from it. The Defendant's actions on Christmas Eve 2019 constituted a battery upon the Plaintiff. 2. It was put to the Defendant (T 372) that a later hosing of the Plaintiff on Christmas Eve 2019 was a "pre-emptive strike" which was "in anticipation she'd take more photos or video of you". The Defendant responded candidly "Yeah, that's what she does every day. Every day." Although the Defendant later sought to resile from that admission, the Court accepts that the first answer given by the Defendant was the truth. Some support for that can be gained from the later question (T 373) "It was a pre-emptive strike, because you anticipated she would again try to take video of you. That would be a fair summary, wouldn't it? Isn't that right?". The Defendant replied "No. What do you to this, if someone gets scared". Rather than revealing the Defendant hosing the Plaintiff in a frenzied way, the CCTV footage reveals him acting with apparent calm deliberation. Although not conclusive, it is difficult to find, having regard to his visual presentation on Christmas Eve, that the Defendant made the threats to kill the Plaintiff of which she complains. If he did, the Defendant did nothing to suggest that he intended to carry out such threats. 3. The Defendant was cross-examined at some length (T 383-386) with respect to the throwing of an apple. The Defendant's reference to the apple in cross-examination was the first time that he suggested the involvement of an apple on Christmas Eve. It was not suggested that the Plaintiff may have mistaken the apple for pebbles or stones. The following exchange occurred: "Q. We're now on frame 01:23:33. 01:23:36 and 37. You just made a throwing action, didn't you, in that video? A. Maybe, but‑‑ Q. Overarm? A. I was eating. That time, I had apple in my hand. Q. You were throwing an object onto Mrs Cho's home, weren't you? A. No. I had‑‑ Q. What do you say you were doing in making that motion with your arm then? A. I'm telling you. Q. What? A. I had a plate of apple. I was eating. On the table, when I get up, because I heard her and with the ‑ and she shone the torch, and just ‑ I get up. Q. But you agree, whatever it was, you deliberately through it towards her property. Is that right? A. I didn't throw anything on her property. Q. Didn't you just say you were throwing an apple? A. I was eating an apple. I said might be, I throw the ‑ the end of the apple when it's finished. I was eating an apple. Q. Have you ever made any mention of this in any of the affidavit evidence in these proceedings, that you were throwing an object like that? A. No. Q. In fact, you've denied throwing anything at any time, haven't you? A. I don't remember throw anything. Q. But you've denied throwing anything. A. Yeah. I don't remember throw anything. I probably ‑ if I did, maybe it's going to be when I finish the apple I threw it. Q. Whatever, you're throwing something at Mrs Cho's property. A. No. Not on her property. The ‑ I was throwing ‑ on the ‑ if ‑ if I was throwing, probably, I don't know. Can't remember. Q. It's an overarm throw, isn't it, it's not an underarm. You're throwing it quite forcefully, aren't you, whatever you're throwing? A. If I want to throw it on her property, I'd throw it down straightaway on her. Q. You're doing a forceful throw, an overarm throw? A. No, I'm throw it far away, so it doesn't get her or any ‑ anyone else. Q. You're throwing it directly towards her property, Mr Dayoub, aren't you? A. No. No. Q. What, over the house, are you? Are you trying to throw it over the house, are you? A. Probably over the house. Q. Over the top of the house? A. Yeah. Q. That's your evidence, is it? A. Maybe. Maybe. Look, I'm not ‑ I'm not saying I threw something to make any damage or anything like that. I was eating an apple. I heard they talking, and she's yelling, "Why you throwing eggs?" I said ‑ I get up, the light's on, and I was eating an apple. I just threw that ‑ maybe the apple. Q. I suggest to you that's just not true. You were deliberately throwing an object. A. No, I'm not. Q. To harass and intimidate‑‑ A. No. Q. ‑‑Mrs Cho? A. No, I'm not. That's not true. Q. Certainly if what you've seen on there is in fact held by his Honour to be throwing an object, you would agree that's something you've always denied doing? A. No. That's not true. That's not true. Q. You've never admitted throwing anything onto Mrs Cho's property or at her? A. Never. Q. That's right, but you now agree that it appears that you were throwing something? A. No, I wasn't throwing anything on her property. Q. Didn't you just say it was an apple? A. Yeah, apple, but I throw it far away. Not on her property. LOCKE: We'll just show the action again of it. HIS HONOUR: Sorry, just a moment. Q. "I threw it far away", did you say, just then? A. Sorry? Q. I thought I heard you say, "I threw it far‑‑ A. Yeah, probably I threw it, something, far away, but not to her property. If I want to throw to her property, I throw it down, straightaway. LOCKE Q. But you say you threw it right over the top of her house? A. Probably, yeah. Q. So it would land in the neighbour's property, presumably, would it? A. Pardon? Q. It would land on or in the next‑door neighbour's property? A. No. It will go straight to the backyard, to the ‑ to the ‑ straight to the back. Q. Mr Dayoub, you're not being truthful with us, are you, about this? A. Sorry? Q. You're not being truthful for the Court? A. Yes, I am. Q. You threw an object at Mrs Cho or Mrs Cho's property? A. No, I did not throw anything on her property. Q. An intentional act intended to cause her distress and fear, and intimidate her, wasn't it? A. No. That's not true." (T 383 line 44 to 386 line 15) 1. That evidence has significance with respect to the credibility of the Defendant, in that this was the only time he admitted ever throwing anything towards the Plaintiff's premises. Neither the Plaintiff nor her husband or any other witness in the Plaintiff's case ever claimed to have seen the Defendant throwing the objects which the Plaintiff claims she found on her premises. The evidence is significant however in that, at no other stage during the lengthy CCTV footage of Christmas Eve 2019 was the Defendant seen using a throwing action of any kind. The Plaintiff has never suggested that she saw an apple thrown at her or her premises or that she found an apple on her premises which she believed had come from the Defendant's premises. The Defendant's cross-examination supports approaching his version of disputed events with caution. 2. The Defendant was cross-examined at considerable length (T 386) in relation to a fire which he lit in a barbeque on the boundary between the parties' properties on 13 February 2022. Video of the barbecue was played to the Court. Cross-examination about the incident went for some time. Beyond depicting neighbourly and environmental insensitivity, the incident does not advance the Plaintiff's case. It could not reasonably be suggested that anything done by the Defendant at that time was intended to, or did, cause the Plaintiff to be fearful for her safety. The absence of any report to Police with respect to that incident is significant in this regard. 3. The Defendant was cross-examined (T 392) with respect to his Affidavit sworn shortly prior to the hearing of the proceedings in which he sought to resile from the admission made in his Affidavit of 12 December 2022 that he called the Plaintiff a "crazy fucking bitch" on 24 December 2019. The Defendant asserted that he only used words to that effect to the Plaintiff once. It was suggested to the Defendant (T 392) with respect to the admission in his December 2022 Affidavit that he "would have given very careful thought to your affidavit to make sure it was true and correct before you swore it, wouldn't you?". The Defendant replied "No". The Defendant was unable to explain how his memory had improved since December 2022. The Defendant maintained his denial that he had ever said to the Plaintiff "I want to kill you". There is, the Court finds, a pattern of describing the Plaintiff as a "crazy fucking bitch" or words to that effect on 26 August 2019, 2 November 2019 and 24 December 2019. It is likely that on Christmas Eve 2019, when his self-control failed him, and the Defendant hosed the Plaintiff, that he also said that he "wanted" to "kill" the Plaintiff, notwithstanding that neither then nor on any prior occasion did the Defendant do anything consistent with an intention to carry out such a threat. Whatever was said, the evidence does not establish that the Plaintiff was fearful for her safety as a result. Her conduct after the words were used was not consistent with her being fearful. 4. The evidence of witnesses whose Affidavits were read in the Defendant's case who were not required for cross-examination does not impact materially on the probabilities having regard to the extent to which objections were taken to those Affidavits. Other than the Defendant's son on 26 August 2019, there does not appear to have been any other person present at the Defendant's premises on any of the occasions when the Defendant is alleged to have assaulted or battered the Plaintiff. The incident on 26 August 2019 1. The Plaintiff and the Defendant each have substantial motivation to remember the events of that day differently. The evidence suggests that the earliest that either of them swore an Affidavit in relation to the incident was three years after the event. The evidence does not reveal that either made a contemporaneous note or diary entry about the event. The Defendant admitted that he had called the Plaintiff a "crazy fucking bitch" during that incident. That admission is consistent with the complaint made to the Police by the Plaintiff and her nephew, Mr Kim, that the Defendant had been "rude" to the Plaintiff. The Plaintiff's claims with respect to the actions of the Defendant on that day are materially inconsistent with what she and Mr Kim reported to Police about the incident. 2. The evidence does not establish that the Defendant did anything on that occasion which constituted an assault on, or battery of the Plaintiff. Although the Plaintiff asserts that she was "short of breath and shaking" and "felt shocked" and felt "physically threatened and fearful for my safety", the COPS entry with respect to the complaints made by the Plaintiff and her nephew was that "no threats were made". No reason for Police misreporting what they were told has been advanced. 3. The Plaintiff's claim that she was in fear of the Defendant as a result of his allegedly saying that things would "not go well for you if the council gets involved" needs to be considered against the background that, more than three weeks earlier, the Plaintiff had complained to the Council about the erection of the beam on the boundary between the two parties' properties. The Plaintiff did not resile from, or in any way "back-off" on her complaints to the Council after the incident. The Court is not satisfied that the Defendant's threat, if it was a threat, put the Plaintiff in fear for her safety, at the time it was made, or subsequently. 4. The Plaintiff bears the onus of proof of her allegations. Largely because of what was reported to and recorded by Police, within hours of the incident, the Court is not satisfied that the Defendant assaulted the Plaintiff on that occasion or that anything said or done by the Defendant on that occasion put the Plaintiff in fear for her safety. Mr Kim's evidence creates no obstacle to so finding. The unreliability of the Plaintiff's evidence provides further support for the finding. The incident on 2 November 2019 1. The Court is satisfied that there was an unpleasant exchange between the Plaintiff and Mr Nadis, and the Defendant on 2 November 2019. As with the incident on 26 August 2019, the first time when the Plaintiff and Mr Nadis and the Defendant made statements about the alleged events were between two and a half and three years after the incident, by which time all of them had substantial motivation to recall the event differently. 2. The Court accepts that the Defendant again called the Plaintiff a "fucking idiot, bitch, slut" or words to that effect. The Plaintiff asserted that the Defendant hosed her and Mr Nadis on that occasion. The Plaintiff asserted in her Affidavit [114] that her husband called Sutherland Police Station and "Senior Constable Ford attended my property that evening". There is no COPS entry recording the Plaintiff as having ever made the complaint to Police which she alleged in her Affidavit. Having regard to the readiness of the Plaintiff to make complaints to the police about the Defendant, that absence is significant. 3. There was undoubtedly an unpleasant exchange on 2 November 2019, but the Court does not have an actual persuasion that the Defendant assaulted the Plaintiff, or committed a battery on her, or that the Plaintiff was in fear for her safety as a result of anything said or done by the Defendant. The Plaintiff said that she was "very upset to learn that such an offence word" as "slut" had been used towards her and that she was "unnerved" by the Defendant behaving "in such a hostile manner towards me and my guest on my property". 4. The Plaintiff's alleged that her fear arose from being sprayed with a hose by the Defendant and "seeing him make a threatening gesture with his hand to Angelo and myself". In cross-examination, Mr Nadis could not recall the hose being used. The unreliability of the Plaintiff's version of disputed events identified in detail earlier in these reasons also militates against finding her allegations proved. 5. In reality, the more serious allegation made by the Plaintiff is probably the hand gesture made by the Defendant. It is improbable that, if the Plaintiff had made a complaint to Police in the terms alleged in her Affidavit, there would not, at least, have been a COPS entry and, equally probably, some follow up by the Police, or advice to the Plaintiff and/or Mr Nadis with respect to the ability of the Plaintiff and Mr Nadis to seek an Apprehended Violence Order against the Defendant. 6. The events alleged by the Plaintiff may or may not have occurred. The Court does not have an actual persuasion that they did, or that anything done or said by the Defendant caused the Plaintiff to fear for her safety. Mr Nadis' admitted absence of recollection creates no difficulty in finding that this allegation is not made out. The events on Christmas Eve 2019 1. The Plaintiff alleged that she was the victim of assaults and batteries at the hands of the Defendant on Christmas Eve. The tort of assault is "directed to the apprehension of contact. Assault is an intentional offer of force or violence to the person of another, who reasonably believes that the threat will be carried out forthwith. The menace must be accompanied by an intention to raise in the mind of the person threatened an apprehension that violence is about to be committed. It is committed when a defendant commits an act which causes a plaintiff immediately to apprehend contact with his or her person" (Mansour v Marhop Pty Limited at [65]). 2. In Rixon v Star City Pty Limited (2001) 53 NSWLR 98, Sheller JA stated, at [56] that: "A traditional definition of assault is "an overt act indicating an immediate intention to commit a battery, coupled with the capacity of carrying that intention into effect; see Clerk v Lindsell at 590 [12-12]." 1. His Honour also referred [57] to JG Fleming, Law of Torts, 9th Ed (1998) Sydney, LBC Information Services at 31-32: "Assault consists in intentionally creating in another person an apprehension of imminent harmful or offensive contact … there may be an assault without a battery if the threat to inflict unlawful force is not in fact carried out … Since the gist of assault lies in the apprehension of impending contact, the effect on the victim's mind created by the threat is the crux, not whether the defendant actually had the intention or the means to follow it up. The intent required for the tort of assault is the desire to arouse apprehension of physical contact, not necessarily to inflict actual harm." 1. Sheller JA further said [58] that "Proof of assault requires proof of an intention to create in another person an apprehension of imminent harmful or offensive contact" and that "If the assault lies in creating an apprehension of impending contact, proof of the assault does not require proof of an intention to follow it up or carry it through". 2. The Court has viewed the compilation of CCTV footage used in cross-examination which the parties provided after the hearing in order to evaluate the events of Christmas Eve from start to finish. The findings of fact with respect to the Plaintiff's claims in assault, battery and trespass to the person are informed by that footage. The nature and content of the footage renders reliance upon it for what it shows safe, and involving no impermissible speculation or hypothesising - what it shows is what happened that night. 3. At 22:18 a bright light was shining on the wall of the Defendant's home at a level below the upper balcony from which the Defendant later sprayed a hose on the Plaintiff's premises, and then on the Plaintiff. To the right of the bright light something appeared to be moving behind the glass wall or partition on the lower deck. It is apparent from other footage that it was probably the Defendant sitting in a swivel chair. The bright light shining against the wall of the Defendant's home did not move during the several minutes when it was seen to be doing so. 4. The person apparently sitting in the Defendant's home, behind the glass partition on the water side of the shining light did not appear to be aware of it, or if so, did not react to it. It is improbable that, if the source of the light shining on the wall of the Defendant's home was a torch held by the Plaintiff, that she could have held it so still for as long as the light was fixed on the Defendant's premises. It may be that the source of the light on the Defendant's wall was the Plaintiff's CCTV camera which appeared in the top left hand corner of the CCTV footage. Whatever the reality, the light source emanated from the Plaintiff's premises. 5. At 22:26 a light came on on the upper level of the Defendant's house. The chair on the lower level appeared to still be moving slightly. There appeared to be reflections of movement on the upper level of the Defendant's house. 6. At 22:28 the chair on the lower level did not appear to be moving but, other than by reflected movement, the Defendant was not visible on the upper level of his house. It is not controversial that the only person in or on the Defendant's premises at relevant times on Christmas Eve 2019 was the Defendant. 7. At 22:30 the bright light ceased shining on the wall of the Defendant's house, and the focus of the light appeared to move more in the direction of the Plaintiff's premises than in the direction of the Defendant's, having regard to the shadows which were then thrown by the dividing wall. 8. At 22:31 the upstairs lights in the Defendant's premises were extinguished. The parts of the property that are visible through the Plaintiff's CCTV were then in darkness. 9. At 22:34 lights went on on the upstairs level of the Defendant's premises, but there was no sign of the Defendant until 22:34 when the Defendant appeared to enter the premises from his upstairs balcony. 10. At 22:35 the Defendant emerged onto his upper balcony on the corner nearest to the Plaintiff's premises. He stood there looking down for some seconds. At 22:36 the Defendant left the balcony and entered the upper level of his house. At 22:36 the Defendant re-appeared on his upper balcony, towards the corner of the balcony closest to the Plaintiff's premises. The Defendant appeared to be looking out over the waterfront. 11. At 22:38 the Defendant again left the upper balcony of his home and was not visible immediately thereafter. 12. At 22:42 the Defendant was briefly visible inside the upper level of his home. 13. At 22:43 the Defendant was moving through the upper level of his home. 14. At 22:44 the Defendant was inside the upper level of his home. At 22:45 the Defendant was still moving within the upper level of his house. 15. At 22:46 the Defendant appeared on the upper balcony of his home. He was holding a garden hose and directed a spray of water from the hose over the dividing wall between the parties' properties and onto the wall of the Plaintiff's house. Water appeared to be splashing on the Plaintiff's CCTV camera. The jet of water appeared to be of less than .5 metre diameter at or near the point of impact. Nothing turns on the diameter of the jet- no one disputes that, although not likely to cause death or injury, it was a powerful stream. At no time was the Plaintiff thrown off her feet by the stream. Prior to the Defendant commencing to hose the wall of the Plaintiff's house the parties had not engaged that evening. The Defendant hosed for a little less than 2 minutes before he ceased doing so. 16. At 22:48, the Defendant re-emerged on his upper balcony. It is not apparent whether he was still holding a hose. The Defendant looked in the direction of the Plaintiff's CCTV camera. The Plaintiff is not visible in the CCTV footage at 22:49. The Defendant continued to look in the direction of the Plaintiff's home. 17. At 22:50 a light was shone from the Plaintiff's side of the boundary wall onto the paved courtyard below the Defendant's house. It is fairly apparent that this was a torch beam which, although not flashing onto the Defendant, also flashed onto the deck below his house. The Defendant left his upper balcony briefly and returned, walking quickly, with the hose in his hand and, at 22:50, resumed hosing the Plaintiff's premises. 18. At 22:51, the Plaintiff appeared and walked down the side of her house. She was holding what appears to be (and was not disputed to have been) a mobile phone which she was pointing in the direction of the Defendant. The Defendant hosed the Plaintiff. The Plaintiff looked away on several occasions before turning back and again holding the phone or camera up towards the Defendant. The Plaintiff continued to do this as the Defendant continued to spray water on or near to her, albeit for most of the time the spray appeared to be hitting on or near the boundary wall. The Defendant periodically aimed the hose at the Plaintiff. A light flashed in the Plaintiff's hands as she leant across the dividing boundary wall. 19. At 22:53 the Plaintiff went down several steps before returning to her home. The Defendant's house was in darkness. As the Plaintiff returned to her home, at 22:54 the Defendant again, from his darkened premises, sprayed in the direction of where the Plaintiff was last seen. The top left hand corner of a doorway can be seen in the bottom right hand corner of the CCTV footage. 20. At 22:54 the Defendant's premises were in darkness, although the Defendant continued hosing, it appears predominantly in the direction of the Plaintiff's CCTV camera, with a spray which has a radius of approximately .5 of a metre. 21. At 23:36, after the missing 40 minutes of film, the Plaintiff appeared to shine a torch or other light source on the Defendant's darkened home. The Defendant was not visible, but a hose, which the Defendant had previously used was sprayed onto the Plaintiff's premises, predominantly in the direction of her CCTV camera. The Defendant then sprayed the wall of the Plaintiff's house. This continued for a little less than 3 minutes. Discs appeared on the screen which, it is not in dispute, represented droplets of water on the lens of the Plaintiff's CCTV camera. The droplets of water on the lens of the Plaintiff's CCTV camera and the darkness in which both houses appear to be enveloped by that time make it difficult to suggest clearly what was happening, but the Defendant appears to have continued to spray water at or in the direction of the Plaintiff's CCTV camera for a little less than 4 minutes. The state of the CCTV footage is such that, if either party reappeared during this time, neither he nor she is visible on the CCTV footage. 22. At 23:40 the Defendant resumed hosing at or in the direction of the Plaintiff's CCTV camera. In this instance the spraying appears to have continued for less than 1 minute. At 23:41 the Defendant again sprayed at or in the direction of the Plaintiff's CCTV camera. The spraying appeared to continue for about a minute. 23. At 23:44 the Defendant appeared to briefly resume spraying at or in the direction of the Plaintiff's CCTV camera. He continued doing so for less than a minute. 24. At 23:45 what appears to be a torch was shone from the Plaintiff's premises onto the wall and, briefly, upper balcony of the Defendant's premises. 25. At 23:46 the lights were on in the Plaintiff's house. The Defendant's house remained in darkness. The Defendant resumed hosing at or in the direction of the Plaintiff's CCTV camera. The lights on the side of the Plaintiff's home appeared to then be extinguished. The Defendant continued hosing at or in the direction of the Plaintiff's CCTV camera for approximately 2 minutes. The CCTV camera lens was so covered by water from the Defendant's hose that it is difficult to make out what, if anything, was happening, other than the Defendant's continued hosing at or in the direction of the Plaintiff's CCTV camera and, by 23:48, the area beyond the dividing wall adjacent to the entrance to the Plaintiff's garage. The Defendant continued hosing for several minutes. The Plaintiff was not sighted outside her home during this episode. 26. At 23:48 the Defendant was still hosing in the general area of the Plaintiff's CCTV camera, or below it in the direction of the side door to the Plaintiff's garage. 27. At 23:50 the Defendant was still hosing in those directions, and appeared to cease doing so at approximately 23:50. By that stage, although it is difficult to be certain having regard to the effect of the water droplets on the lens of the Plaintiff's CCTV camera, both the Plaintiff's and the Defendant's premise were in darkness. Findings with respect to the events on Christmas Eve 2019 1. In C Van der Lely NV v Bamfords Limited (1963) RPC 61 at 71 Lord Reid said that a judge ought not to attempt to "read or construe" a photograph but rather to look at the photograph "in determining which of the explanations given by the witnesses appears to be most worthy of acceptance". In Stillwell Trucks Pty Limited v McKay & Ors [2002] NSWCA 292 at [73] Campbell AJA, with whom Handley and Beazley JJA agreed, said that the "use of other components in the photograph or series of photographs to identify objects in a photograph is an appropriate procedure. Upon occasion it may be a matter of common sense. In a case involving machinery parts, as here, it would normally require an expert to make the identification". 2. In Blacktown City Council v Hocking at [169] Tobias JA said that: "It should be noted that the use by a trial judge of photographs is nothing new. They can … be descriptive of what a witness says he or she saw, being a representation of the witness' knowledge and observations. But they should not be used by a judge to make findings of fact which are otherwise unsupported by the evidence and are therefore no more than conjectural." 1. His Honour added at [170] that the use of photographic evidence must be the subject of "careful delineation", particularly "as a means of proof of matters of fact". His Honour added that: "This is not to say that photographs can have no probative value of themselves even in the absence of an oral description of what is depicted; only that care must be taken to ensure that they are not used as the sole source from which a primary fact is to be inferred where that fact is not revealed on the face of the photographs such as the condition of a structure at a time sufficiently removed from that when the photographs were taken." 1. The Court is satisfied that the primary facts with respect to the events of Christmas Eve 2019 are revealed "on the face" of the CCTV footage, and that they are revealed with such clarity as to rely upon them as the best evidence of what then occurred. Doing so involves no impermissible conjecture or interpretation by the Court. 2. The Court is comfortably satisfied that, by threatening the Plaintiff with a hose on Christmas Eve 2019 the Defendant intended to create in the Plaintiff an apprehension of imminent contact and/or offensive contact. That apprehension was reasonable, having regard to the Defendant's earlier application of a forceful spray of water from the hose against the Plaintiff's home. It was reasonable in the circumstances for the Plaintiff to apprehend that, when the Defendant appeared on his balcony armed with a hose, that she was likely to be sprayed with it, as she was. An apprehension of being intentionally sprayed by a neighbour with a hose comfortably falls within the category of contact which can be considered offensive. 3. The Defendant has not suggested, nor could he have on the evidence, that his apprehended conduct was in self-defence, preservation of property, or of necessity. Nor did the Defendant assert, or could he have successfully asserted that any provocation by the Plaintiff justified or rendered proportionate or appropriate his assault of the Plaintiff. Although the position is less clear with the Defendant's subsequent appearances on his balcony armed with the hose, the Court has an actual persuasion that his intention when first appearing on his balcony with the hose was to create in the Plaintiff an apprehension of imminent offensive contact. 4. The focus in assault is on the intention of the alleged perpetrator. The relevant intent is, in the present circumstances, an apprehension of imminent "offensive contact". Whether the Plaintiff apprehended offensive contact after the first assault is less than clear, having regard to the fact that the Plaintiff subsequently exited her home, knowing what the Defendant had done the first time she did so, and reasonably anticipating that he was likely to do so again. Ultimately, having regard to the conduct of the Plaintiff during the subsequent hosing of the Plaintiff that night, little turns on finding assaults made out with respect to those events. Put bluntly, having regard to the Plaintiff's provocative conduct with her phone, the Court would award her no more by way of general damages, or other damages, if more than one assault is found proved than if only the first assault was proved. 5. Having regard to the seriousness of the allegations, the Court is not persuaded on the balance of probabilities in the Briginshaw sense that the conduct of the Defendant on other than the first occasion when he appeared on his balcony armed with a hose constituted an assault. Although it might be inferred that the Defendant's intention was to cause the Plaintiff to anticipate further offensive conduct, her willingness to engage with him, and provoke a response by filming the Defendant with her phone are inconsistent with the Plaintiff having such fears. 6. The Plaintiff alleged that, on each of the occasions when the Defendant directed water from his hose at her, the Defendant committed a battery. The tort of battery is an act of the defendant which directly, and either intentionally or negligently, causes some offensive physical contact with the person of the plaintiff. Like all suits in trespass, the tort is actionable per se without proof of damage. It is the protection of the right to bodily integrity in itself that is the gist of the action, not the suffering of harm (Mansour at [90]). At the heart of the cause of action is the "intentional application of force by a defendant to the plaintiff without the latter's consent" (Mansour at [91]). 7. There is no suggestion in this case, nor could there be, that anything done by the Defendant with his hose on Christmas Eve 2019 was done negligently. There is no issue that the Defendant intentionally sprayed water from his hose towards the Plaintiff. There is no doubt that water from the Defendant's hose struck the Plaintiff, as the Defendant intended that it would. The Plaintiff did not, on any of the occasions when she was struck by water from the Defendant's hose, do or say anything which could have conveyed to the Defendant that she consented to his doing so. There is no issue that the Defendant sprayed the Plaintiff with force. There is no suggestion that the Defendant's actions did not involve "offensive physical contact" with the person of the Plaintiff. 8. The Court rejects the Defendant's assertion that he was only trying to hose the Plaintiff's torch and/or mobile phone, and not the Plaintiff herself. As is self-evident, neither the torch nor the phone operated independently of the Plaintiff during the events of Christmas Eve 2019. During the first hosing of the Plaintiff there is no sign of her having a phone in her hand. The Defendant did not assert that the Plaintiff's torch or phone was other than in her hand when she was later sprayed. 9. Unlike the tort of assault, the tort of battery does not involve any apprehension on the part of the victim. The issue is whether the elements of the cause of action are intentional acts of the Defendant which cause, in the circumstances of this case, "offensive physical contact with the person of the plaintiff". With respect to the first hosing of the Plaintiff by the Defendant on Christmas Eve 2019 each of those elements is comfortably established. 10. The position with respect to the subsequent hosing of the Plaintiff is less clear. Ultimately, the Court is satisfied on the balance of probabilities in the Briginshaw sense (Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34) that each time the Defendant subsequently hosed the Plaintiff constituted a battery. Although the Plaintiff acted provocatively on the second occasion, the actions of the Defendant were not justified by the provocative conduct of the Plaintiff, and involved offensive physical contact. To suggest otherwise would be to invite the law of the jungle to govern relationships between neighbours. As with the alleged assaults, having regard to the Plaintiff's own conduct, finding one or more batteries established does not ultimately change the award of damages to which the Plaintiff is entitled. 11. The Court is not persuaded on the balance of probabilities in the Briginshaw sense that the Defendant said during the course of events on Christmas Eve 2019 "I want to kill you", or words to that effect. He may have. If he did, the Court is not satisfied that the Defendant made that thtreat with the intention of causing the Plaintiff to reasonably believe that the threat would be carried out. On the Plaintiff's own evidence, the conduct of the Defendant could not reasonably have had that effect. The Plaintiff's actions after the first time she was sprayed are inconsistent with her fearing for her life or safety if the Defendant did utter those words. The Plaintiff did not suggest that the Defendant did anything during Christmas Eve 2019 which led her to fear that the Defendant intended to carry out any threat which he is alleged to then have made. 12. The Court is satisfied that the Plaintiff has proved an assault, and two batteries on Christmas Eve 2019. To the extent that the batteries also constituted trespasses to the person, in the circumstances of this case, so finding would not justify awarding any damages in addition to those properly awarded for the batteries. The assault and batteries occurred during what was essentially the same incident. Assessing the Plaintiff's damages by reference to three separate intentional torts would be artificial in the present circumstances, and not result in the Plaintiff's damages being greater than they will be if, as proposed, they are assessed globally. The Court does not understand Counsel for either party to ultimately suggest that doing so would be impermissible, or inappropriate. Whether the Plaintiff's claim is governed by the Civil Liability Act 2002 (NSW) 1. The Plaintiff contended that the assessment of her damages is not governed by the provisions of the Civil Liability Act 2002 (NSW) (Civil Liability Act). The Defendant contended that they are. 2. Section 3B(1) of the Civil Liability Act relevantly provides that: "The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows: (a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person – the whole Act except" 1. The Plaintiff submitted that "intent" is to be considered in relation to a specific act, and not a specific cause of action. The Plaintiff further submitted that the subjective state of mind of the Defendant may be inferred from circumstances other than the Defendant's own perception, and is a question of fact to be determined not only by having regard to the Defendant's subjective state of mind, but also by reference to objective facts from which intention may be inferred. 2. It was submitted by the Plaintiff that it was a presumption of law that a person intends the natural and probable consequences of their acts (Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69). It is not in contest that the Defendant intended to spray water onto the Plaintiff with his garden hose. That involved no inadvertence, or negligence. What happened was what the Defendant intended would happen. The more difficult issue is whether the Defendant did what he did with the intention of causing the Plaintiff "injury". The Plaintiff submitted that evidence that a person is aware that his or her conduct will produce a particular result provides support for an inference of intent to be drawn. The Defendant did not disagree with that submission. 3. The Plaintiff submitted that it was "sufficient to engage s 3B(1)(a) for a person, knowing that injury might result from an intentional act by them, nevertheless takes the risk of that injury occurring, not whether the injury occurs or not – i.e. recklessness". That proposition was sought to be supported by the decision in State of New South Wales v McMaster [2015] NSWCA 222. In view of the Court's findings, it is unnecessary to rely upon "recklessness" in order to determine this issue. 4. It was submitted by the Plaintiff that it was necessary only to establish that the Defendant intended to cause "some" injury, not necessarily the injuries which were allegedly suffered by the Plaintiff. The Defendant did not disagree with that submission. "Injury" is not defined for the purposes of s 3B of the Act and the definition of "personal injury" in other parts of the Act does not apply (Spedding v State of New South Wales [2022] NSWSC 162). 5. The Plaintiff relied upon the decision of the Court of Appeal in State of New South Wales v Ibbett [2005] NSWCA 445 in support of her contention that "injury" has its ordinary and natural meaning (Project Blue Sky Inc v Australian Broadcasting Association (1998) 194 CLR 355; [1998] HCA 53), which encompasses not only "personal injury" but also humiliation, indignity, fear, stress and anxiety". The Plaintiff submitted that a person who "directly causes physical contact with another person will commit a battery unless the person proves that the physical contact they caused was "utterly without fault" (i.e. no intentional negligence)". The Plaintiff relied upon the decision in Croucher v Cachia [2016] NSWCA 132 in support of that contention. The defendant did not disagree with that submission. 6. The Plaintiff submitted that the elements of battery were: "(a) an intentional act by the perpetrator; (b) that immediately or directly caused physical contact with the other person; and (c) such contact was offensive, in that it was likely to cause injury or affront." 1. It was submitted that it was not necessary for the person committing the battery to physically contact the other person, and being sufficient to establish battery if a person hits or strikes another person with something they have thrown or directed at or towards the other person (see Fede v Gray by his Tutor NSW Trustee and Guardian [2018] NSWCA 316). The Court does not understand either of those propositions to be controversial. 2. The Plaintiff identified, correctly, that the critical issue is whether the Court finds that the Defendant committed an intentional act which was intended to cause injury to the Plaintiff. It was submitted that the definition of "personal injury damages" in Part 2 of the Civil Liability Act does not apply to s 3B and that ss 11 and 11(a) of the Act also have no application. Section 28(3) of the Civil Liability Act provides that Part 3 does not apply to civil liability for "mental harm" and that is excluded by s 3B. Section 28(1) of the Act provides that Part 3 applies to any claim for damages for "mental harm" resulting from "negligence". 3. The Plaintiff reiterated in closing submissions that her claim is, and has always been for intentional tort, and not negligence. That was made clear well prior to the commencement of the hearing, and did not take the Defendant by surprise. 4. The Plaintiff submitted that: "Irrespective of whether the Act does or does not apply it is not incumbent upon the Plaintiff to prove: (a) that she suffered a recognised psychiatric injury; and (b) reasonable foreseeability of injury to a person of normal fortitude." 1. The Plaintiff relied upon the High Court decision of Tame v New South Wales; Annetts v Australian Stations Pty Limited (2002) 211 CLR 317; [2002] HCA 35; (2002) 149 AR 449; (2002) 76 ALJR 1348, in support of those contentions. The Court does not understand the contentions to be controversial. 2. The Plaintiff submitted, and the Defendant accepted, correctly in the Court's view having regard to the decision of the Court of Appeal in Irlam v Burns, that contributory negligence is not a defence to an action for intentional tort. It was further submitted that the Defendant bore the onus of establishing that the stabbing of the Plaintiff by a third party in August 2020 constituted a novus actus interveniens and that it was incumbent upon the Defendant to adduce evidence to "disentangle" the effects of the conduct of the Defendant and the damages arising from the August 2020 stabbing (Watts v Rake (1960) 108 CLR 158; [1960] HCA 58; Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34). The Defendant did not disagree with that contention. 3. It was submitted by the Plaintiff that she was entitled to common law damages for "every act of the Defendant that is held to have been intentional and intended to cause injury". The Plaintiff also submitted that, pursuant to the common law, in addition to compensatory damages, she was entitled to aggravated and exemplary damages. 4. The Defendant submitted that the Civil Liability Act applied to the proceedings because the CCTV footage with respect to Christmas Eve 2019 "goes against any objective anxiety, stress or apprehension in the context of s 3B(1)(a) of the Act". 5. The Defendant submitted that his intention had been to "spray the Plaintiff's phone and not her person" but, that notwithstanding, "at most, he was reckless" in hosing the Plaintiff and that as such the provisions of the Civil Liability Act were not displaced. In oral submissions, Counsel for the Defendant said little more in support of the Defendant's contention that the Civil Liability Act governed the Plaintiff's claim. That is not a criticism of Counsel- the issues requiring determination were fully and effectively agitated by both Counsel. 6. With respect to the Plaintiff's assault claims, the Defendant relied on the Judgment of Leeming JA in Croucher v Cachia at [99] in which his Honour said that: "Assault consists in intentionally creating in another person an apprehension of imminent harmful or offensive contact. There may be an assault without battery if the threat to inflict unlawful force is not in fact carried out … Since the gist of assault lies in the apprehension of impending contact, the effect on the victim's mind created by the threat is the crux, not whether the defendant actually had the intention or the means to follow it up. The intent required for the tort of assault is the desire to arouse apprehension of physical contact, not necessarily to inflict actual harm or physical contact." 1. The Court does not understand his Honour's definition of assault to be controversial in these proceedings. The first hosing of the Plaintiff satisfied the requirements of the tort of assault to which Leeming Ja referred. The Court is not satisfied that the Defendant subsequently assaulted the Plaintiff. 2. The Defendant relied with respect to the tort of battery on the decision of the Victorian Supreme Court of Appeal in Carter & Anor v Walker & Anor [2010] VSCA 340, in which it was held at [215] that the law with respect to battery in Australia is that: "(1) it is a species of trespass to the person; (2) it is a so-called "intentional" tort, but care needs to be taken in considering the intention which is relevant; (3) as a starting point, it involves the defendant doing an act which causes physical contact with the plaintiff; (4) the act must be voluntary, that is directed by the defendant's conscious mind; (5) the act must have a direct rather than a consequential impact upon the plaintiff; (6) it does not require that the defendant intend the plaintiff any harm, or that the plaintiff suffer harm in fact. It is actionable per se; (7) if the act is voluntary, and the defendant "meant to do it" in the sense of meaning to contact the plaintiff, it will be relevantly intentional; (8) it may be that an act should also be considered intentional if it is substantially certain that the act will result in contact with the plaintiff; and perhaps also if the act is reckless with respect to contact with the plaintiff; (9) battery may be contrasted, historically, with two other forms of action: (i) action on the case; and (ii) negligent trespass to the person; (10) a feature of the former was that it accommodated consequential relief rather than direct interference by the defendant upon the plaintiff. A feature of the latter was that it maintained the requirement of directness, but that it accommodated negligent rather than intention acts in the sense that the defendant's act, though intended, was careless with respect to contact with the plaintiff; (11) once battery is established, immediate harm and consequential damage are compensable. The boundary of entitlement is set by the conception of "natural and probable consequence" (or "result"). That appears to be a common control mechanism for intentional torts. It is not a test of reasonable foreseeability, even though the two tests might yield the same result in some, or even many, cases." 1. The Defendant submitted, correctly, that the Plaintiff bore the obligation of proving the elements of her case on the balance of probabilities pursuant to s 140 of the Evidence Act 1995 (NSW). The Defendant submitted this to be "especially the case where the Plaintiff alleges an intention by the Defendant to cause injury" and relied in that regard upon the decision in Nguyen v Tran [2018] NSWCA 215 at [62]-[64]. The Plaintiff did not dispute that she bore the onus of establishing that the Civil Liability Act did not govern the assessment of any damages to which she is entitled. 2. The Defendant also relied on the decision in Gautam v Health Care Complaints Commission at [88], a case involving disciplinary proceedings brought by the Commission in which the Court held that the standard of proof was "comfortable satisfaction". The Court is comfortably satisfied that the Defendant assaulted the Plaintiff and battered her twice on Christmas Eve 2019. 3. The Defendant relied upon the statement by Gleeson JA (with whom Bell P and Macfarlan JA agreed in Musa v Alzreaiawi [2021] NSWCA 12) that: "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences." 1. The Court accepts that the Plaintiff bears the onus of proving each element of her case, and must do so on the balance of probabilities, having regard to the matters referred to in Musa. With respect to the issue of intent in the context of s 3B(1)(a) of the Civil Liability Act the Court must be satisfied that the Defendant acted with the requisite intention, having regard to the gravity of the consequences flowing from so finding. 2. In Ibbett, on which the Plaintiff relied, Spigelman CJ considered the definition of "personal injury" for the purposes of Part 2 of the Civil Liability Act, and could "see no reason" to apply the definition of "personal injury" for the purposes of Part 2 of the Civil Liability Act to the word "injury" in s 3B(1)(a) of the Act for five reasons. Although the Judges in Ibbett were not entirely in agreement with respect to all aspects of the appeal, there does not appear to have been disagreement with respect to his Honour's conclusion with respect to the meaning of "injury" in s 3B(1)(a). The Court accepts that the definition of "personal injury" for the purposes of Part 2 of the Civil Liability Act does not apply in this case, and that it is appropriate to consider "injury" in the manner submitted on behalf of the Plaintiff. 3. In Ibbett, Spigelman CJ accepted, at [16] the finding of the Primary Judge that conduct which was found to have been "calculated to cause fear and apprehension particularly in a woman of 69 years of age confronted as she was by a stranger in ordinary street clothes behaving in a highly agitated and threatening manner" supported a finding that the defendant "intended to cause injury in the form of an apprehension of physical violence". In that case the defendant police officer "pointed the gun at (the plaintiff) and demanded she do something whilst under the threat". Although a more extreme example, his Honour's Judgment provides support for the Plaintiff's contentions. The Defendant acted in a threatening manner. The Chief Justice added [16] that the conclusion which the Primary Judge drew, that the defendant "intended to cause injury in the form of an apprehension of physical violence" was justified. The first time the Plaintiff was hosed with a powerful stream of water on Christmas Eve 2019 entitled the Plaintiff to apprehend physical violence. In the circumstances revealed by the CCTV footage, it is difficult to accept that the Plaintiff could have, or did, have that apprehension when she was subsequently hosed by the Defendant. 4. In Ibbett, Basten JA at [211] referred to the finding of the Primary Judge that "Even in the absence of evidence that the assault caused any medically (including psychiatrically) identifiable injury, the anxiety and distress caused by the assault should be compensated by an appropriately substantial award of general damages". His Honour said [214] "The fact that the concept of harm is broader than that of injury does not turn on the use of the word "impairment"". 5. Viewed objectively, and with hindsight, it is difficult to accept from the CCTV footage of the events of Christmas Eve 2019 that the Defendant intended to cause injury to the Plaintiff in the form of an apprehension of physical violence on any but the first occasion when he sprayed her with his hose on Christmas Eve 2019. 6. The Defendant applied a powerful stream of water to the Plaintiff's person by hosing her. The Plaintiff was clearly the target of the Defendant's hosing. It can reasonably be inferred from the manner in which the Defendant applied the hose, and the absence of any conduct on the part of the Plaintiff prior to his doing so which could possibly justify the Defendant's conduct, that he intended the spraying to have an effect upon the Plaintiff. The Defendant asserted that he sprayed the Plaintiff (the second time) to try to stop her filming him. The CCTV footage suggests that the filming commenced after the Defendant resumed spraying the Plaintiff. 7. Given the background to the events of Christmas Eve 2019, the Court finds that the Defendant intended that spraying the Plaintiff would have a variety of impacts upon her. These include causing her humiliation and indignity, fear that she could easily be hosed again in that manner by the Defendant for no reason whenever the Defendant decided to do so, and stress and anxiety as a result of the apprehension of that occurring. That is particularly so given that, other than by selling her home and moving, the Plaintiff could not avoid being vulnerable to such conduct. 8. It is relevant that the Plaintiff was at all material times on her own property. Although the Plaintiff's CCTV camera being clearly, if not aimed at, recording events on a substantial portion of the Defendant's property would have been likely to have been annoying, his conduct could not possibly be justified on that basis. The Defendant may have had other civil remedies, not involving recourse to self-help. Whether he did or not is irrelevant - the Defendant's conduct was an unjustified invasion of the Plaintiff's right to personal safety, and safe and quiet occupation of her home. 9. The Judgment of Basten JA in Ibbett provides support for finding that, provided that the conduct was intended to cause fear, stress and anxiety, it is not necessary to prove that it was intended to cause a recognised psychological or psychiatric disorder or condition. When he first sprayed the Plaintiff, the Defendant intended to cause her fear, stress and anxiety. The absence of any, or any rational reason for his doing so could only have increased the Plaintiff's stress and anxiety, if not her fear for her present and future safety. 10. The Plaintiff exhibited what Dr Meyerowitz recorded on 9 January 2020 (consultation 67 Defendant's cross-examination bundle 2448) as "anxiety", the Plaintiff having attended on Dr Meyerowitz on 6 January 2020 (consultation 66) as a result of "mental deterioration". On 6 January 2020 Dr Meyerowitz determined that the Plaintiff's "management" warranted referral to a psychologist. Whether the clinical notes reflected Dr Meyerowitz's opinion, or the Plaintiff's claims is unclear, but the fact that Dr Meyerowitz concluded that referral to a psychologist was indicated provides support for finding that the Plaintiff suffered injury as a result of the Defendant's conduct on Christmas Eve 2019. In the absence of any intervening cause, and none emerges, Dr Zhang's diagnosis of the Plaintiff in 2020, prior to the Blessington attack, establishes that the Plaintiff suffered a recognised psychological or psychiatric injury as a result of the Defendant's conduct on Christmas Eve 2019, if proving that to have been the case was required. 11. In Irlam v Byrnes, Cavanagh J, with whom Simpson AJA and N Adams J agreed, at [124ff] considered a number of aspects of the determination of damages in intentional tort claims. His Honour referred, at [127] to Leeming JA's judgment with respect to the meaning of battery in Croucher v Cachia, and said that battery "may be described as an intentional tort but may also occur when the defendant is merely negligent" but that "even though a cause of action in battery may be established out of either intentional or merely negligent conduct, the distinction is important in a matter such as this having regard to s 3B(1)(a)" of the Civil Liability Act. 12. Cavanagh J recorded [129] that the provisions of the Civil Liability Act "do not apply to the civil liability of a person in respect of an intentional act that is done by the person with the intent to cause injury or death". His Honour reiterated [132] the statement of Leeming JA in Croucher that "battery is normally established merely by the proof of direct physical conduct unless the defendant proves that the defendant was "utterly without fault"". His Honour recorded that battery "may be committed using an instrument or an object" (Darby v Director of Public Prosecutions (2004) 61 NSWLR 558; [2004] NSWCA 431). It is not in contest in this case that the Defendant's hosing of the Plaintiff could constitute a battery even though there was no direct physical conduct between the Defendant and the Plaintiff (Fagan v Metropolitan Police Commissioner [1969] QB 439). 13. Cavanagh J recorded [134], and it was accepted in this case, that it is the plaintiff who must establish that the Civil Liability Act does not apply (Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc (2020) 103 NSWLR 658; [2020] NSWCA 294). 14. In view of the findings recorded above, the critical issue is whether the Court is satisfied that the Defendant intended to cause the Plaintiff the injury she suffered on Christmas Eve 2019. His Honour said, at [135] that "whilst it has been suggested that injury means the injury the subject of the claim … I do not consider that it is necessary for a plaintiff to establish that a defendant intended to cause the precise injuries sustained". The contrary has not been suggested in this case. 15. As in these proceedings, the question of drawing an inference with respect to the alleged tortfeasor's intention arose in Irlam. Cavanagh J said [163] that there was "a difference between drawing an inference from proven facts and conjecture". His Honour referred to Lane v R [2013] NSWCCA 317, in which it was accepted that "inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture". 16. Permissibly drawing the inference sought by the Plaintiff requires careful consideration of the evidence of the events of Christmas Eve 2019, and the facts which are found after evaluation of it, and avoidance of the heresy of conjecture. Each case turns materially on its own facts. In Irlam, contrary to the primary judge, the Court of Appeal was satisfied that the defendant acted with the intention to cause injury. Why the Court so concluded can be readily understood in view of the statement by Cavanagh J, at [173] that the "compelling inference" was that the respondent drove a motor vehicle "with someone hanging onto the side" [171] with the intention of causing injury to the appellant. His Honour said "That is, once the respondent refused to accede to the Applicant's request that he stop, his continued driving of the vehicle could only have been with the intent of forcing the appellant off the vehicle". His Honour added [174] that "intending to force a person to fall from a moving vehicle must include an intention to injure that person. That is the likely consequence of any person driving a motor vehicle with another person hanging onto the side". 17. As recorded earlier, the CCTV footage of the events of Christmas Eve 2019 establishes that the Defendant was guilty of one assault on, and two batteries of the Plaintiff that evening. Those findings provide the context for determining whether the Defendant committed those torts with the intention of causing the Plaintiff injury. It has not been suggested, and could not have been, that the Defendant intended to cause the Plaintiff death or serious physical injury. The Court finds, by reference to the CCTV footage, and without speculating, or needing to, that by assaulting and battering her on the parties' first encounter that night, and subsequent battery, the Defendant intended to, and did cause the Plaintiff fear, stress and anxiety. Finding that he did gains support from Dr Meyerowitz's opinion on 6 January 2020 that referral of the Plaintiff to a psychologist was warranted. It has not been suggested that anything which occurred between Christmas Eve 2019 and that date could have led Dr Meyerowitz to that opinion. 18. The only explanation proffered by the Defendant for his tortious conduct on Christmas Eve 2019 has earlier been considered and rejected. The non-responsive statements of the Defendant referred to earlier as apparent justification for his conduct provide support for finding that he intended to cause the Plaintiff fear and anxiety, as does the course of the Defendant's hosing of the Plaintiff's person and premises on Christmas Eve 2019. Drawing a bright line between inferences permissibly drawn from proven facts and impermissible conjecture is not as easy in this case as Cavanagh J's judgment reveals it to have been in Irlam. The course of the Defendant's tortious conduct, and its likely impact on the Plaintiff satisfy the Court that objectively, and, if it be necessary, subjectively, the Defendant intended to cause the Plaintiff injury on Christmas Eve 2019. 19. On balance, and accepting that, as with evaluative determinations of this kind, minds may reasonably differ, the Court is satisfied that s 3B(1)(a) of the Civil Liability Act is enlivened. The Plaintiff's damages will be assessed in accordance with the provisions of the common law. Whether the Plaintiff suffers from a psychiatric or psychological condition 1. The Defendant disputed that the Plaintiff was currently suffering from any psychological, psychiatric or other medical condition which was causally connected with any the conduct of his on Christmas Eve 2019. The Defendant asserted that, to the extent that the Court found the Plaintiff to have any current psychiatric or psychological condition, the conduct of the Defendant on Christmas Eve 2019 could only have aggravated pre-disposing conditions which the Plaintiff had prior to Christmas Eve 2019. The Defendant also submitted that the Blessington stabbing in August 2020 caused or contributed materially to any psychiatric or psychological condition from which the Plaintiff was found to currently suffer. 2. The evidence which informs these issues is the Plaintiff's evidence of her alleged symptoms, the clinical records and/or reports of the Plaintiff's treating health practitioners who have not been called as witnesses in the Plaintiff's case, hospital records and the medico-legal reports of psychiatrists who have never treated the Plaintiff. The Court has set out in detail its reasons for finding that the Plaintiff's evidence of disputed matters, which include her alleged symptoms and their alleged consequences, should be approached with caution, and not found proved unless it is corroborated by other reliable evidence. Before considering the medico-legal evidence, it is appropriate to consider the contemporaneous records of the Plaintiff's treating health professionals. Clinical records of Dr Meyerowitz and reports of Associate Professor Allan 1. The Plaintiff was cross-examined with respect to a Discharge Summary produced by St George Hospital on subpoena (Defendant's cross-examination material page 2278) dated 7 February 2014, which described the Plaintiff as "57 year old lady with atypical chest pain for 2 months". The notes further recorded (page 2279) "2 month history of non-radiating chest tightness, worsens at night but gets better in midday. Chest tightness has been constant and persistent. Associated with dyspnoea, palpitations. States has exertional dyspnoea. No diaphoresis at rest. Denies calf pain/recent travel. States pain improved after taking aspirin prior to arrival." 2. The Plaintiff was cross-examined with respect to her consultations with Dr Allan, an Interventional Cardiologist, who she saw in 2014 on referral from Dr Meyerowitz. The documents on which the Plaintiff was cross-examined were admissible as business records. Properly, there was no suggestion to the contrary, or objection to their tender, or to the Plaintiff being cross-examined on them. 3. On 24 March 2014 Dr Allan reported on his consultation with the Plaintiff to Dr Meyerowitz (Defendant's cross-examination bundle page 2285). Dr Meyerowitz is the only General Practitioner who the evidence reveals has been the Plaintiff's regular or treating GP. In his report, Dr Allan reported that the Plaintiff "has had a syndrome of chest tightness and palpitation for approximately 3 to 4 months which she describes as a burning sensation in her chest when at the same time she is unable to take in a full breath. It is often at the time of stress or an emotional period in her life and it usually bothers her most at night". Dr Allan further recorded that there was "a family history of hypertension", that the Plaintiff "has had a mild hypertension herself and has been well managed on Atacand 8mg a day". Although the Plaintiff disputed other aspects of Dr Allan's recording of her statements, those statements were not asserted to have been inaccurate. 4. Dr Allan agreed with Dr Laurence Schneider's opinion based on ECG results obtained earlier in the year that the Plaintiff's "symptoms were probably secondary to an anxiety syndrome". Dr Allan reiterated his view that "the most likely cause (of the Plaintiff's reported symptoms) is anxiety and there is no evidence of any myocardial ischaemia". Dr Allan said he had "increased (the Plaintiff's) Inderal to 20mg twice a day to see if that helps further". 5. Dr Allan saw the Plaintiff subsequently and, on 30 June 2014 (Defendant's cross-examination bundle page 2286) reported to Dr Meyerowitz that the Plaintiff reported that "while Inderal helped her palpitations she was unable to tolerate the side effect of headache". He further recorded that the Plaintiff "also talked today about anxiety and depression she had been experiencing particularly in relationship to a neighbourhood issue and wondered if either of us could help her with medication for that. She mentioned already that she was on Antenex". There is no rational basis for finding that Dr Allan inaccurately recorded what the Plaintiff told him. 6. Dr Allan recorded that he had "changed (the Plaintiff's) Inderal to Metoprolol 25mg bd as this is less likely to cause the headache and still give her the advantage of controlling her palpitations. I have also added Lexapro 5mg a day to try and assist with her anxiety depression syndrome". 7. On 15 December 2014 Dr Allan reported to Dr Meyerowitz the results of his recent consultation with the Plaintiff, and recorded that the Plaintiff had been "very concerned about chest pain. She looked very distressed when she arrived complaining of headache and feeling unwell generally. She noted that Metoprolol had been helpful in the past for such sensations but this seemed different to her, was heavier in character and was when she breathed in. She admitted that there had been some anxiety over the last few weeks and that this was sometimes how she reacted to anxiety but thought this might have been different". 8. Dr Allan recorded that the Plaintiff's examination was "unremarkable but an echocardiogram did demonstrate a small slither of pericardial fluid and her ECG did demonstrate some non-specific ST-T wave abnormalities in the anteroseptal leads. This ECG pattern can sometimes be seen late in patients with pericarditis and I noted from the previous estimations that her ECG and echo were normal in March of this year." (Defendant's cross-examination bundle page 2293.) 9. Dr Allan again reported to Dr Meyerowitz on 19 January 2015 (Defendant's cross-examination bundle page 2294). He recorded that the Plaintiff "really hasn't settled despite the therapy directed at her pericarditis. She was unable to tolerate the Voltaren and the Colchicine suggesting severe headaches because of either or both. She thought it was probably the Colchicine which may be a possibility". Professor Allan recorded that he had suggested "further anti-inflammatory medication which she is reluctant to have but reinstated Cardizem 180mg slow release 1 per day to cover her for palpitations she has been experiencing and some mild breathlessness". 10. On 23 June 2015 Dr Allan again reported to Dr Meyerowitz, but made no mention of any opinion that the Plaintiff's physical symptoms were referable to anxiety. 11. On 30 November 2015 Dr Allan again reported to Dr Meyerowitz (Defendant's cross-examination bundle page 2298), and again made no mention of the Plaintiff experiencing anxiety. Similar observations apply to Dr Allan's report to Dr Meyerowitz of 16 May 2016 (Defendant's cross-examination bundle page 2300). 12. On 21 November 2016 Dr Allan again reported to Dr Meyerowitz. He recorded that the Plaintiff was "more comfortable on the Inderal but having some side effects of headache which are described. The palpitations are much less and she is much more settled with her thinking". Dr Allan recorded that he changed the Plaintiff's medication from "Inderal 10mg twice a day to Metoprolol 12.5mg/a day" to "see if that makes her feel more comfortable". 13. On 7 August 2017 Dr Allan wrote to Dr Meyerowitz recording that "there seems to be an increase in her palpitation symptoms above previous levels. The palpitations appear to be much more marked and give rise to a combination of other symptoms such as nausea and headaches". He wrote that he and the Plaintiff "talked a lot about the home situation and recognised that some of the difficulties there are assisting this, but there is no question that she does experience irregular heartrates from time to time". 14. Dr Allan reported that he had "elected" to commence the Plaintiff on therapy for pericarditis for which he prescribed Colchicine and Voltaren. The Plaintiff reported "some anxiety over the last few weeks", well prior to the genesis of the difficulties in her relationship with the Defendant in July 2019, and what she alleged had occurred on 26 August 2019 and 2 November 2019. 15. It was not suggested that Dr Allan was qualified, or purported to make a psychiatric or psychological diagnosis of the Plaintiff. Dr Allan's reports are of significance for what they record the Plaintiff telling him about experiencing "anxiety", the last occasion when she did so being in August 2017. Contrary to the Plaintiff's claims, there is no reason to find that Dr Allan inaccurately recorded what the Plaintiff told him. The frequency of the Plaintiff's reporting of anxiety, their duration (2014 to 2017) and proximity to Christmas Eve 2019, and the fact that Dr Allan was a specialist medical practitioner whose detailed reports to Dr Meyerowitz the Plaintiff sought to impugn in only one significant respect- the reported cause of her anxiety in 2014- provide rational support for the Defendant's contention that the Plaintiff was pre-disposed to react to the events of Christmas Eve 2019 in ways that she would not otherwise have. 16. The clinical records of Dr Meyerowitz were put into evidence by the Defendant (Defendant's cross-examination bundle Tab 4). Dr Meyerowitz's clinical notes reflect the substance of the Plaintiff's complaints to him, and his treatment of her in response to them after Christmas Eve 2019. 17. Dr Meyerowitz saw the Plaintiff on 6 January 2020 (visit 66, Defendant's cross-examination bundle 2447). The reason for the Plaintiff's visit on that occasion was recorded as "mental deterioration", the "management" of which was a referral to a psychologist. Dr Meyerowitz again saw the Plaintiff on 9 January 2020 (visit 67, Defendant's cross-examination bundle 2448). He noted the reason for the Plaintiff's visit as "anxiety" and wrote a letter to Uplift Psychological Services. 18. On 21 January 2020 (visit 68, Defendant's cross-examination bundle page 2449) Dr Meyerowitz saw the Plaintiff, who recorded "has seen Uplift twice. They won't write a legal letter yet. I explained to her and husband that 2 visits is not enough for a psychologist to give accurate report. Sees her again on Tuesday. I will write letter that she is seeing psychologist. Mentally not doing well. She and neighbour needs to be a few 100 metres apart at all times. She now wants a psychiatrist. Feels they may write letter after one visit". Contrary to her claims in cross-examination, less than one month after Christmas Eve 2019, the Plaintiff was concerned to build a case against the Defendant. 19. On "examination" Dr Meyerowitz recorded "She looks down in the dump ++. Is scared of neighbour". The reason for the Plaintiff's visit was noted as "anxiety/depression". Dr Meyerowitz saw the Plaintiff on 28 January 2020 (visit 69, Defendant's cross-examination bundle page 2450) and recorded that the Plaintiff had seen the psychologist that day for her third visit and was "still very anxious". Dr Meyerowitz recorded as "reason for visit" "PTSD". 20. On 16 March 2020 (visit 70, Defendant's cross-examination bundle page 2451) Dr Meyerowitz again saw the Plaintiff and recorded that "Uplift helping", and the "reason for visit" as "depression". On 27 March 2020 (visit 71, Defendant's cross-examination bundle page 2452) Dr Meyerowitz saw the Plaintiff who reported that her court case had been "postponed until September", a reference to the AVO proceedings against the Defendant in the Local Court. Dr Meyerowitz noted that "neighbour on purpose does things to upset her like throw grass in her driveway. Causes PALPS. Sore left foot". Under the "reason for visit" was recorded "skin infection". 21. On 13 May 2020 Dr Meyerowitz saw the Plaintiff (visit 72, Defendant's cross-examination bundle page 2453). The "reason for visit" was noted as pharyngitis and URTI. There was no mention anywhere in Dr Meyerowitz's notes of the Plaintiff complaining about anxiety or depression. 22. Dr Meyerowitz saw the Plaintiff on 21 May 2020 (visit 73, Defendant's cross-examination bundle page 2454) and noted "case with neighbour really upsetting", a reference to the Local Court proceedings. On "examination" the Plaintiff was "looking scared and anxious". The reason for her visit was noted as "anxiety and fear". Under "management" Dr Meyerowitz recorded "Chat. Must continue with legal case". 23. On 24 July 2020 (visit 74, Defendant's cross-examination bundle page 2455) Dr Meyerowitz noted "Was so bad last night, went to casualty. See DC letter. Had chest pain. As has private cover, Wesley Hospital will admit her, but needs letter from me". The "reason for visit" was noted as "panic attacks". Dr Meyerowitz wrote a letter to Wesley Hospital re "depression/anxiety/panic". 24. On 26 August 2020 Dr Meyerowitz saw the Plaintiff and noted "was stabbed in street by another woman". Dr Meyerowitz recorded with respect to the Plaintiff's July 2020 hospital admission that "not seeing neighbour did wonders to her. Was calm and no anxiety". The "reason for visit" was assault (not by the Defendant). Dr Meyerowitz's notes with respect to "examination" involved physical injuries referable to the attack on the Plaintiff on 20 August 2020 (visit 75, Defendant's cross-examination bundle page 2456). 25. On 10 September 2020 (visit 76, Defendant's cross-examination bundle page 2457) the "reason for visit" of the Plaintiff was noted as "legal report". Dr Meyerowitz noted "copy of full file given to husband to give to lawyer". 26. On 7 October 2020 (visit 77, Defendant's cross-examination bundle page 2458) Dr Meyerowitz noted the Plaintiff informing him that the Defendant "pleaded guilty to hosing her X-mas" and that the Plaintiff was "worried as why do people lie etc. and maybe she is the wrong. Developed palpitations. Also headache." The "reason for visit" was noted as "anxiety and fear". The Plaintiff was prescribed Antenex and Propranolol. The Plaintiff was at that time on 10mg of Inderal. 27. On 22 October 2020 (visit 78, Defendant's cross-examination bundle page 2459) the Plaintiff saw Dr Meyerowitz for the purpose of renewal of her Driver's Licence. Nothing was recorded with respect to any psychological problems at that time. 28. On 18 November 2020 (visit 79) the Plaintiff saw Dr Meyerowitz for the purpose of a referral for "more psychologist treatment". The "reason for visit" was noted as "anxiety/depression". 29. On 7 January 2021 Dr Meyerowitz saw the Plaintiff (visit 80, Defendant's cross-examination bundle page 2461) for reasons not involving psychological issues, as was the case with the Plaintiff's visit to Dr Meyerowitz on 27 January 2021 (visit 81, Defendant's cross-examination bundle page 2462). Dr Meyerowitz saw the Plaintiff on 28 January 2021 (visit 82, Defendants cross-examination bundle page 2463) and noted that "feels psychologist not helping anymore. Found Korean psychologist Jun Mo Jeong". Dr Meyerowitz wrote a letter to the psychologist with respect to "mental review". The "reason for visit" was noted as anxiety/depression. 30. Dr Meyerowitz saw the Plaintiff again on 23 April 2021 (visit 83, Defendant's cross-examination bundle page 2464). He noted that the Plaintiff was "worried. If ceases propranolol, her anxiety and palps returns. Is it safe to take = yes. There is a right and wrong way to cease". The "reason for visit" was noted as "anxiety/depression". The Plaintiff again saw Dr Meyerowitz on 6 May 2021, the reason for her visit being recorded as anxiety/depression. Dr Meyerowitz wrote to Jun Mo Jeong and to Dr Zhang. 31. On 1 July 2021 Dr Meyerowitz saw the Plaintiff (visit 85, Defendant's cross-examination bundle page 2466). Nothing was recorded with respect to any complaints about psychological matters on that occasion. Dr Meyerowitz saw the Plaintiff on 15 July 2021 (visit 86, Defendant's cross-examination bundle page 2467). Nothing with respect to any alleged psychological matters was recorded on that occasion. Dr Meyerowitz saw the Plaintiff on 5 August 2021 (visit 87, Defendant's cross-examination bundle page 2468). Other than recording that a letter had been written to Jun Mo Jeong, nothing with respect to any psychological matters was then recorded. The reason for the visit was a Covid-19 vaccination. 32. On 26 August 2021 (visit 88, Defendant's cross-examination bundle page 2469) the Plaintiff saw Dr Meyerowitz for "heartburn". Nothing was recorded with respect to any complaints about psychological matters. Dr Meyerowitz again saw the Plaintiff on 30 September 2021 (visit 89, Defendant's cross-examination bundle page 2470). Dr Meyerowitz recorded "worried BP high and neighbour problems again". The Court has heard no evidence of any such alleged problems at that time. On examination the Plaintiff was "anxious" and Dr Meyerowitz recorded the reason for the Plaintiff's visit as "anxiety/depression". 33. On 28 October 2021 Dr Meyerowitz saw the Plaintiff (visit 90, Defendant's cross-examination bundle page 2471). That consultation was for purposes associated with the Plaintiff's Driver's Licence. Nothing was recorded with respect to any psychological matters. 34. On 2 November 2021 (visit 91, Defendant's cross-examination bundle page 2472) the Plaintiff saw Dr Meyerowitz, who recorded that "court unsettles her more". The reason for the Plaintiff's visit was noted as "anxiety/depression". On 15 November 2021 (visit 92, Defendant's cross-examination bundle page 2473) Dr Meyerowitz saw the Plaintiff. He recorded the Plaintiff saying "not doing well and spoke to Dr Zhang who will admit her". The reason for the Plaintiff's visit was noted as "anxiety/depression". Dr Meyerowitz said that he had written a letter to Dr Zhang re "admit". Dr Zhang's notes produced on subpoena (Defendant's cross-examination bundle Tab 4) conclude with an entry for 5 October 2021 which recorded that the Plaintiff "will come to hospital for admission after the court hearing. Encourage psychotherapy with psychologist". There is no evidence of the Plaintiff then being hospitalised. 35. On 14 January 2022 (visit 93, Defendant's cross-examination bundle page 2474) the Plaintiff attended on Dr Meyerowitz for the purpose of a further Covid-19 vaccination. Nothing was noted with respect to any complaints about psychological issues. Similar observations apply to the Plaintiff's visit to Dr Meyerowitz on 20 January 2022 (visit 94, Defendant's cross-examination bundle page 2475). The last recorded visit of the Plaintiff to Dr Meyerowitz (visit 95, Defendant's cross-examination bundle page 2476) was on 7 February 2022 and was for the purpose of a prescription of Sertraline which Dr Meyerowitz noted the "psych has her on". 36. Dr Meyerowitz's clinical notes provide some support for the Plaintiff's case, at least up until November 2021. The fact that the Plaintiff consulted Dr Meyerowitz as soon as she did after Christmas Eve 2019 supports finding that the Plaintiff suffered injury as a result of the tortious conduct of the Defendant on Christmas Eve 2019. In view of the Court's considerable reservations about the reliability of the Plaintiff's evidence, the speed with which she sought medico-legal assistance further suggests that the reliability of her recorded complaints in 2020 and thereafter should be viewed with caution. 37. It is not clear whether what Dr Meyerowitz recorded with respect to "anxiety/depression" was, on the overwhelming bulk of occasions when he saw the Plaintiff, what he diagnosed clinically, or what the Plaintiff alleged. Whether Dr Meyerowitz's qualifications and experience enabled him to diagnose anxiety or depression is not apparent from his clinical records. His clinical notes do not reveal that Dr Meyerowitz conducted any psychological or similar tests on the Plaintiff, or had regard to the edition of the DSM which was then current. Dr Meyerowitz's evidence with respect to the Plaintiff's psychological well-being between January 2020 and November 2021 is entitled to limited weight in these circumstances. 38. In the absence of any explanation for the failure to call him as a witness in her case, and in the manner identified in the authorities referred to earlier, the Court infers that Dr Meyerowitz's evidence with respect to her presenting symptoms, diagnosis and prognosis after November 2021 would not have assisted the Plaintiff's case. Reports of Barbara Preston 1. On 14 February 2020 Barbara Preston, a Clinical Psychologist with Uplift Psychological Services wrote to Dr Meyerowitz after he had referred the Plaintiff to her. By that time the Plaintiff had attended five sessions with Ms Preston for "psychological treatment regarding generalised anxiety and depression". Ms Preston noted that the Plaintiff reported "experiencing acute psychological stress and anxiety since September 2019 with stomach disturbance and heart palpitation frequently occurring to her. These acute stress symptoms have occurred following her property being pelted with eggs, with metal shavings and damage occurring in other ways. She advises that she has received verbal threats against her safety and been assaulted by forceful hose pressure against her body. Joanne has recorded many instances of adverse action being taken against her in her home and property and she has been assisted with a letter re her attendance and treatment". Ms Preston recorded that "psychological treatment is being provided to (the Plaintiff) to help her to reduce her acute level of stress and anxiety which could affect her permanent physical and mental health". 2. On 18 March 2020 Ms Preston again wrote to Dr Meyerowitz (Defendant's cross-examination bundle 3268). Ms Preston identified the Plaintiff's referral by Dr Meyerowitz to her for "psychological treatment regarding generalised anxiety and depression". By that time the Plaintiff had attended six sessions with Ms Preston. Ms Preston noted the Plaintiff's report that she "continues to experience acute psychological stress and anxiety with stomach disturbance and heart palpitation when she is confronted by neighbours parking across her driveway. The acute stress symptoms has decreased as her property is no longer under attack from eggs or damage occurring in other ways. She advised that she had previously received verbal threats against her safety and been assaulted by forceful hose pressure against her body but an interim AVO is being processed through a court". Ms Preston wrote that "psychological treatment is being provided to (the Plaintiff) to help to reduce her acute level of stress and anxiety and does appear to be helping". The Plaintiff was to continue to attend on Ms Preston. 3. On 4 August 2020 (Defendant's cross-examination bundle 3341) Ms Preston wrote to Dr Meyerowitz. By that time the Plaintiff had attended ten sessions with Ms Preston. Ms Preston recorded the Plaintiff as reporting "her ongoing acute psychological stress and anxiety with stomach disturbance and heart palpitation when she is confronted by neighbours parking across her driveway etc. There was some improvement when her property was no longer under attack from eggs or damage occurring in other ways. When other forms of what she names as harassment continue against their wellbeing and that of their visitors. She advised that she had previously received verbal threats against her safety and been assaulted by forceful hose pressure against her body but an AVO was being processed through a court. With no end in sight, Joanne is pursuing other legal action". Ms Preston recorded that "psychological treatment with (the Plaintiff) to help to reduce her acute level of stress and anxiety and does appear to be helping Joanne at the time. She will continue to be seen for ongoing psychological treatment and has been provided a letter re her symptoms and treatment". 4. The Plaintiff has not adduced evidence from Ms Preston of any consultations with her subsequent to 4 August 2020, a period which now exceeds three years. No explanation for the failure to call Ms Preston has been offered. The Court infers that Ms Preston's evidence would not have assisted the Plaintiff's case with respect to her psychological well-being after August 2020. Whether Ms Preston diagnosed the Plaintiff as having a psychological condition in 2020 is unclear. If Ms Preston did so, how she arrived at her diagnosis is not apparent from her letters to Dr Meyerowitz. To what extent any diagnosis Ms Preston may have arrived at was based on what the Plaintiff told her is unclear. It is not apparent from her letters what therapies Ms Preston utilised in her consultations with the Plaintiff. Conversely, there is no reason to doubt that Ms Preston considered that her consultations with the Plaintiff were justified on psychological grounds. In the circumstances, the weight afforded Ms Preston's evidence with respect to the Plaintiff's psychological well-being between January 2020 and August 2020 is limited to supporting the Court's finding that the Plaintiff suffered injury as a result of the Defendant's tortious conduct on Christmas Eve 2019. Wesley Hospital records 1. The Plaintiff was cross-examined on the clinical records of Wesley Hospital produced on subpoena and contained in the Defendant's cross-examination bundle. 2. On 27 July 2020 a Registered Nurse (RN) at the hospital completed an intake interview with the Plaintiff. The Plaintiff was recorded as having "stopped" her attendance at church "every Sunday" due to Corona virus. The Plaintiff's evidence in cross-examination (Defendant's cross-examination bundle page 347) was that she had ceased her attendances because of the Defendant's conduct. No rational basis for finding that the RN "got it wrong" emerges from the evidence. 3. The "personal risk assessment" completed by the RN on the Plaintiff's admission to the hospital recorded "Yes" against the item "previous diagnosis of a mental illness". That is not inconsistent with the clinical notes of Dr Meyerowitz and Ms Preston's letters. 4. The clinical notes record that, later on the day of the Plaintiff's admission to the hospital (Defendant's cross-examination bundle page 2564) the Plaintiff "presented with low mood, poor sleep, poor appetite, anxiousness and poor concentration exacerbated due to conflict with next door neighbour. Patient reported that she had been experiencing these symptoms since October" 2015 or 2019. The Court is not comfortable that the hand-writing is sufficiently clear to enable it to find to which date the entry is intended to refer. If, as seems likely, it was a reference to October 2019, that preceded Christmas Eve, and anything more than "rudeness", by two months. 5. Entries on the clinical notes for 11 August 2020 (Defendant's cross-examination bundle 2614) record the Plaintiff as being "polite and cooperative on approach. Mood (indecipherable) euthymic with reactive affect … reported feeling better after having propanolol. Nil overt agitation or distress evident during conversation. Attending groups. Attending meals and medications. Nil concerns raised until the time of report". Propranolol is a beta blocker prescribed for heart problems, anxiety and migraine. 6. The clinical notes for 12 August 2020 (Defendant's cross-examination bundle 2618) record that the Plaintiff had been "seen by Dr Zhang this morning, can be discharged tomorrow. But Pt requested to stay longer, permission granted from Dr Zhang to stay until Friday. Observed to be socialising well with the peers otherwise nil any other concerns ator". 7. These clinical notes provide the best contemporaneous objective indication of the Plaintiff's general well-being shortly before she was viciously attacked on 20 August 2020. In view of their terms, they provide only limited support for the Plaintiff's claims with respect to her psychological well-being prior to the August 2020 attack. 8. The Wesley Hospital clinical notes with respect to the Plaintiff's October 2020 admission (Defendant's cross-examination bundle 2716) record on 12 October 2020 under the heading "Reason for presentation", "low mood, poor sleep, poor appetite, anxiety panicking after seeing neighbour, conflict with neighbours, 4th October 2020 ("20-30 people at neighbour's house annoyed me as they were having barbeque with the intention to trouble and annoy me")". The Plaintiff suggested in cross-examination that the hospital had wrongly recorded that statement. How the hospital could have recorded what appeared in the clinical records unless the Plaintiff told it those things was not explained. The Court prefers the hospital's record of the Plaintiff's statements to her version of them. 9. Under the heading "Mental health history" the clinical notes referred to the Plaintiff's admission to the hospital on 27 July 2020 and discharge on 14 August 2020 and recorded "depression and anxiety" and "verbal aggression from neighbours". The admission notes (Defendant's cross-examination bundle 2736) record under the heading "What do you consider to be your major problem, difficulty or area of concern?", "palpitation, anxiety, panic, low mood, poor sleep". Under the heading "Have you ever experienced a similar problem previously? If so, what was that problem and how did you handle it? Was your handling of the problem successful", the Plaintiff was recorded as responding "Yes, I have experienced a similar problem previously similar problems of low mood, poor sleep, anxiety that was resolved due to admission at WHK". It is not in doubt that "WHK" is a reference to Wesley Hospital Kogarah and, inferentially, the Plaintiff's July 2020 admission. No other admission has been suggested to have been the admission to which the Plaintiff referred. There is nothing in the hospital records supportive of finding that anything done by the Defendant precipitated, or contributed to the Plaintiff's October 2020 admission. Medico-legal reports of Dr Fernando Roldan 1. The Defendant relied on three reports prepared by Dr Fernando Roldan, a Consulting Clinical Psychologist, dated 1 November 2022, 20 October 2023 and 21 October 2023 (Defendant's Tender Bundle Tabs 15, 16, 17). Dr Roldan first saw the Plaintiff on 18 October 2022. Dr Roldan has never been in a therapeutic role with the Plaintiff, his engagement being to provide medico-legal reports. Dr Roldan was not required for cross-examination on his reports. His qualifications, experience and methodology not having been criticised, unless there are sound reasons for not doing so, and none have emerged, Dr Roldan's opinions are entitled to be afforded significant weight. 2. Dr Roldan identified the extensive material which had been provided to him for the purpose of preparing his reports. Dr Roldan had also been provided with the reports of the Plaintiff's medico-legal psychiatric expert, Dr Parmegiani, and the Defendant's medico-legal psychiatric expert Dr Roberts. Dr Roldan reported that, for the reasons he identified, it was not possible to administer the Plaintiff the MMPI-3 or "similar instruments" (paragraph 5.6 page 24) but that (5.7) he did administer the Plaintiff the "depression anxiety stress scales (DASS), which is a self-report symptom inventory tapping the examinee's emotional functioning for the week preceding the consultation". He noted that the DASS "does not contain validity checks, scores on the DASS simply manifest face value acceptance of the examinee's symptom endorsement, and the DASS is not designed to assess for psychotic thought disorder." On the DASS the Plaintiff obtained a score of 35 for depression which was said to be "within the extremely severe range", 34 for anxiety and 29 for stress, the first two of which were within the "extremely severe range, the last within the severe range". As Dr Roldan frankly acknowledged, the weight to be given to the Plaintiff's scores is limited in the circumstances which he identified. In view of the Court's findings with respect to the unreliability of the Plaintiff's evidence, little weight is given to her DASS scores. That is no reflection on Dr Roldan. 3. The results of the test of memory malingering (TOMM test) which Dr Roldan administered resulted (5.10) in scores which were "well within the credible range" which provided "no psychometric evidence of deliberate cognitive underperformance or feigned disability". As the Court has earlier recorded, the unreliability of much of the Plaintiff's evidence is not found to have been deliberate. 4. Under the heading "Summary and opinion" Dr Roldan recorded (6.6.1, page 26) that some of the Plaintiff's allegations "could possibly be interpreted as having been somewhat "dramatic"". The Court finds a number of the Plaintiff's allegations do fit that description. Properly, Dr Roldan acknowledged that he was not in a position to comment on the accuracy or otherwise of the Plaintiff's allegations. The Court has earlier recorded in detail why it regards the reliability of the Plaintiff's recollection of disputed events as problematic. Dr Roldan further recorded (6.6.2, page 26) that "on presentation for me, while (the Plaintiff) appeared to display significant psychological reactivity to discussion of the events in question, there was no frank evidence of psychotic phenomena in her presentation". 5. On the basis of the matters to which he had earlier referred Dr Roldan's opinion (para 6.6.4, page 27) was that he had "no frank evidence to suggest that (the Plaintiff) suffers from psychotic thought disorder, including a "paranoid state"". In view of the "limited information I was able to elicit from (the Plaintiff) with regards to her alleged symptoms, as well as some potential inconsistencies and/or confounding variables in her history which require further investigation", Dr Roldan was "reluctant to offer a conclusive opinion with regards to (the Plaintiff's) diagnosis and the aetiology of her alleged difficulties" (6.8.1, page 27). Having regard to the findings which the Court has earlier recorded, Dr Roldan's reticence was appropriate. The "potential" deficits in the Plaintiff's "history" have been substantially established by her evidence in cross-examination. 6. Dr Roldan was (6.8.2) "prepared to accept that (the Plaintiff) suffers from symptoms of anxiety and depression" but had "reservations" as to whether the Plaintiff was a person of "normal fortitude" at the time of the alleged events of Christmas Eve 2019. Dr Roldan referred to Dr Allan's reports to which the Court has earlier referred, and expressed his reluctance to accept that the stabbing of the Plaintiff in August 2020 had no significant effect on her psychological functioning. Dr Roldan recorded that "In view of her alleged response to the events allegedly involving (the Defendant), it would be remarkable to say the least if (the Plaintiff) did not suffer some form of psychological injury as a result on been [sic] attacked with a knife by a stranger or, at the very least, if such event had not contributed to her anxiety and depression". Dr Roldan reiterated (6.13.3, page 28) that, for the reasons he had set out earlier he had difficulty in conceiving that "the limited acts which (the Defendant) has admitted to given [sic] rise to the severe, wide ranging, incapacitating and persistent psychological difficulties now alleged, let alone such acts given [sic] rise to the now reported difficulties in a person of "normal fortitude"". 7. Although he was a witness in the Plaintiff's case, Dr Roldan was unfailingly faithful to the expert witness code, and made concessions which were entirely appropriate. The Court's findings with respect to the unreliability of the evidence of the Plaintiff with respect to disputed events amply underpin Dr Roldan's reticence in that regard. Dr Roldan's opinion evidence has the added attraction of according with commonsense, particularly with respect to his reasoned scepticism about the two matters referred to immediately above. 8. In his second report of 20 October 2023, which was prepared after Dr Roldan again saw the Plaintiff on 12 October 2023, he referred (paragraph 2.5, page 5) to the Plaintiff telling him what she alleged the Defendant had done on 15 January 2023. The Plaintiff clearly had the photographs which she showed Dr Parmegiani and the Court with her at the time. Dr Roldan recorded (2.6, page 5) that the Plaintiff "did not describe any other specific incidents involving her neighbour having occurred in the period since she last saw me. However, she did say, in general terms, that "sometimes" (when she is at the front of her house on her way out and her neighbour is at the front of his house) her neighbour points his telephone towards her as if he is filming her. She said that he does this "as intimidation". The Court has no recollection of that allegation having been made by the Plaintiff during these proceedings. 9. Dr Roldan reported the Plaintiff as telling him (2.7) that her condition was "getting worse" since she saw him in October 2022 but was "unable to obtain elaboration about this" from the Plaintiff. Dr Roldan reported (2.8) that the Plaintiff told him that she continues to see a Clinical Psychologist, Mr Jun Mo Jeong once a month and continues to see Dr Zhang (Psychiatrist) on average 2 to 3 times, inferentially annually. Neither Mr Jeong nor Dr Zhang has been called as a witness in the Plaintiff's case. No explanation for those failures has been advanced. The Court infers that their evidence would not have assisted the Plaintiff's case. 10. As with his previous report, Dr Roldan recorded (2.9) that it "proved extremely difficult to obtain detailed and/or clear elaboration from (the Plaintiff), who restricted herself to the observation that her psychological condition is deteriorating because "nothing changes"". Dr Roldan's observations are consistent with the Court's findings with respect to the Plaintiff's evidence. So is her lack of candour with Dr Roldan, her own expert. 11. Dr Roldan reported (4.5.4, page 11): "The fact (the Plaintiff) can undertake the tasks/activities she has been shown to undertake during periods of covert surveillance do not, in my opinion, necessarily negate that she may suffer from the psychological/psychiatric condition alleged in this case. This is because individuals with Major Depressive Disorder, depending on fluctuations of mood and associated symptoms, may at times be capable of undertaking such activities and, furthermore, covert surveillance cannot possible [sic] assess (the Plaintiff's) activities consistently across time. However, having stated the above, I would also note that the activities (the Plaintiff) was shown to have performed during periods of covert surveillance give rise to the suspicion that (the Plaintiff) may not be as impaired by her alleged psychological/psychiatric disorder as alleged … and also as implied by aspects of her presentation and report. Specifically, relating to the latter, I note that while (the Plaintiff) has told me and others that she is extremely fearful of her neighbour, she avoids the potential for encounters with her neighbour and generally remains inside her home, covert surveillance footage appears to show her gardening at the front of her home (where she alleges she continues to be harassed and intimidated by certain actions undertaken by her neighbour) without overt signs of hypervigilance or agitation." 1. Dr Roldan commented on aspects of reports of Drs Parmegiani and Roberts and recorded (4.15.3, page 17) that "Dr Parmegiani further opined that there was no sufficient basis to state that (the Plaintiff) had suffered from a psychological/psychiatric condition prior to the subject enquiry. I agree with this". Dr Roberts did not disagree with Dr Roldan's opinion. Nor does the Court. Whether the Plaintiff was pre-disposed to suffer psychological or psychiatric harm on Christmas Eve 2019 is another issue. 2. Dr Roldan recorded (6.6.19, page 25): "In my opinion, comparison of what (the Plaintiff) told me and others within the context of the current proceedings about the magnitude and/or impact of the stabbing incident that (took place in) August 2020 and what she described in a witness statement to police four days after this incident, points to inconsistencies and suggests that within the context of the current proceedings (the Plaintiff) has sought to minimise the stabbing incident and its impact on her." 1. Dr Roldan further recorded (6.6.22, page 25) that there was: "a vacuum of material referring to (the Plaintiff's) reaction to the stabbing incident, other than material pertaining to the first few days post-stabbing incident, and given (the Plaintiff's) apparent attempt to minimise the impact of the stabbing incident within the context of the current proceedings, it is difficult to offer an opinion about the long term implications of this incident for (the Plaintiff's) psychological functioning. I can only state here that I suspect that the stabbing incident may have had some impact on (the Plaintiff's) psychological functioning. However, I reiterate that on the basis of the evidence available it is difficult for me to offer a more definite opinion regarding the extent of this contribution and/or its duration." 1. Dr Roldan's reports provide little assistance to the Plaintiff's case. That is not said critically of Dr Roldan. The Court's findings with respect to the reliability of the Plaintiff's evidence of disputed events amply underpin Dr Roldan's frankly expressed scepticism about her psychological health. The unreliability of the Plaintiff's evidence renders acceptance of psychological opinions based, or substantially based on her uncorroborated statements fraught. The Court agrees with Dr Roldan's "suspicions" regarding the impact of the August 2020 stabbing on the Plaintiff's psychological well-being. Medico-legal evidence of Dr Enrico Parmegiani 1. The Plaintiff relied on five reports prepared by her medico-legal psychiatric expert, Dr Enrico Parmegiani. The reports were dated 28 July 2021, 20 October 2022, 30 May 2023, 26 September 2023, and a further report which was filed in Court during the hearing which also became an exhibit (Plaintiff's Court Book Tabs 4, 5, 6 and 7). 2. Dr Parmegiani's 28 July 2021 report followed a consultation with the Plaintiff on 22 March 2021. Dr Parmegiani recorded an extensive history of the Plaintiff's complaints. Not insignificantly (page 6) there was no reference to the alleged hosing of the Plaintiff and Mr Nadis on 2 November 2019. Having regard to Dr Parmegiani's extensive recording of the Plaintiff's statements, that cannot have been inadvertent. Dr Parmegiani also recorded the Plaintiff's stated symptoms. Dr Parmegiani identified the documentation which had been provided to him, which included clinical records of Dr Meyerowitz prior to 25 July 2020, reports of Ms Preston prior to 5 August 2020 and a report from Dr Zhen Zhang, Psychiatrist, dated 20 August 2020 (found at Exhibit P5 page 824) in which Dr Zhang referred to his diagnosis of the Plaintiff on 27 July 2020 with psychiatric symptoms that were diagnosed as an Adjustment Disorder with Anxiety. Why Dr Parmegiani was not given later clinical notes of Dr Meyerowitz was not explained. 3. With respect to his consultation with the Plaintiff on 22 March 2021, Dr Parmegiani recorded (page 11): "When assessed on 22 March 2021, she reported the psychiatric symptoms documented in the sections above, which in my opinion are now consistent with a Major Depressive Episode characterised by marked symptoms of anxiety, including recurrent panic attacks. (The Plaintiff) reported persistently depressed and anxious mood, with lack of reactivity and anhedonia. She was constantly preoccupied by ruminations about her neighbour's past abusive behaviours, and the fear that he could well escalate them further in the future, leading to personal harm to her. (The Plaintiff) reported sleep disturbance, appetite disturbance with weight loss, and lack of energy, motivation and libido. In my opinion the symptoms are sufficient in duration and severity to satisfy the diagnostic criteria for a Major Depressive Episode, within the context of the DSM-5 classification system. The reported recurrent panic attacks are in my opinion caused by the persistent symptoms of Major Depressive Episode. According to (the Plaintiff's) reported history, the psychiatric symptoms began after her negative interactions with her neighbour and progressed further after additional unpleasant interactions with him. In my opinion the reported events constituted a sufficiently stressful set of circumstances to be considered causally related to her current psychiatric diagnosis. It is well known that episodes of Major Depression can be, and often are, precipitated by stressful life events." 1. Significantly, and properly, the expression "Plaintiff reported" recurs throughout Dr Parmegiani's several reports. As explained later in these reasons, with respect to him, Dr Parmegiani uncritically relied significantly on what the Plaintiff "reported" to him as the factual basis or foundation of his report. Necessarily in those circumstances, the weight to be afforded to his expert opinion evidence was significantly dependent upon the Court's acceptance of the Plaintiff's reporting of disputed events. The Court's findings in that regard render affording Dr Parmegiani's disputed opinion evidence significant weight problematic. 2. Dr Parmegiani said (page 12) of the stabbing of the Plaintiff in August 2020 that "it did not appear to be related to the current difficulties that she is experiencing with her neighbour. In any case, I believe the episode was incidental, and unlikely to contribute significantly to her current condition". Why that opinion was held, and how it was formed was not explained. With respect to Dr Parmegiani, it is difficult to accept that the opinion was not wholly or at least substantially based on acceptance of what the Plaintiff "reported". Cross-examination of Dr Parmegiani reinforced that impression. 3. Dr Parmegiani opined (page 12) that: "Ultimately, (the Plaintiff's) ability to recover from her current condition will rely on her having access to more assertive treatment, and even more importantly on the resolution of the ongoing legal proceedings in which she remains involved. The best case scenario, I believe that (the Plaintiff's) psychiatric condition could resolve fully within twelve months of the conclusion of the legal proceedings, and initiation of more assertive psychiatric treatment. Given that this is her first episode of major depression, I would cautiously hold an optimistic expectation about her prognosis." 1. More than two years since Dr Parmegiani's report was provided to the Plaintiff's solicitors, and presumably read by the Plaintiff, there is no evidence that she has undergone "more assertive psychiatric treatment". Notwithstanding that the Plaintiff reported continuing to see Dr Zhang and a psychologist, neither of those professionals has given evidence in the proceedings. The Plaintiff herself has given no evidence at all of her current or recent treatment by Dr Zhang, or by any other appropriately qualified health practitioner. 2. In his second report dated 20 October 2022 (Tab 5) Dr Parmegiani reported on his consultation with the Plaintiff on 30 September 2022. After reiterating many of the matters reported by the Plaintiff and recorded in his first report, Dr Parmegiani referred to the Plaintiff's reported current symptoms and, under the heading "Current and proposed treatment" recorded that the Plaintiff "continued to consult with her treating psychiatrist monthly for medication review. She was now on two different antidepressant medications, Sertraline and Mirtazapine" (paragraph 9). Dr Parmegiani recorded that the Plaintiff reported that she saw a "Korean speaking psychologist regularly, at which time she would discuss the most recent events". The Court has not heard evidence from that psychologist, or any explanation for that absence. The Court infers that such evidence would not have assisted the Plaintiff's case. 3. After referring to affidavits and other material provided to him, Dr Parmegiani reiterated his earlier opinions, including (page 16) that the Plaintiff "definitely suffers from a recognised psychiatric illness, namely a major depressive disorder". Dr Parmegiani recorded (page 17): "I have acknowledged that on a single occasion in 2020 (the Plaintiff) was stabbed by a stranger in the street near Darlinghurst and was treated promptly and discharged from the St Vincent's Hospital. While unpleasant in its nature, I do not believe that this episode is a major contributor to her current psychiatric illness, given the constant and pervasive effect of the confrontations that she has experienced with her neighbour over the past three years." 1. With respect to Dr Parmegiani, "unpleasant" is an understatement of considerable magnitude having regard to the objective evidence with respect to the attack and its sequelae, even on the Plaintiff's statements at the time. It is not clear to what extent, if any, Dr Parmegiani considered the incident to have been a "contributor" to what, in his opinion, was the Plaintiff's current psychiatric illness. It is reasonably apparent from the concluding part of the statement, that Dr Parmegiani substantially accepted the truth of what he was told by the Plaintiff. The Court does not find that, as at 30 September 2022, there had been any significant "confrontations" between the Plaintiff and the Defendant since Christmas Eve 2019, two years and nine months earlier. With respect to Dr Parmegiani, his uncritical acceptance of the Plaintiff's statements about the effect on her of the August 2020 attack renders his opinion vulnerable to challenge in view of the Court's findings in reliance upon close examination of the Plaintiff's statements in cross-examination. 2. Dr Parmegiani recorded (page 17): "Given the circumstances described to me by (the Plaintiff) in the two interviews, and the corroboration of the affidavits I have read, it is my opinion that the stress of the circumstances would be sufficient to cause a psychiatric illness such as major depression in a person of normal fortitude". 1. With respect to Dr Parmegiani, reliance upon what the Plaintiff described, and untested affidavit evidence relating to disputed issues of fact provided a contestable basis for his diagnosis. The Plaintiff's self-serving statements in affidavits did not constitute "corroboration" of the Plaintiff's account of disputed events. It is difficult to accept that, although undoubtedly qualified to express expert opinions about the Plaintiff's psychiatric well-being, Dr Parmegiani's opinions were formed by the application of his expertise, rather than by acceptance of the Plaintiff's account of disputed events. As these reasons record, other than with respect to the events of Christmas Eve 2019, such acceptance was unsafe. 2. Dr Parmegiani recorded (page 18) that the prognosis of the Plaintiff's psychiatric illness was "presently at best guarded". He recorded that the Plaintiff "expressed the opinion that if her neighbour was subjected to sufficient punishment to act as a strong deterrent, his behaviours might cease. This is a distinct possibility, and should it occur, I anticipate that (the Plaintiff's) symptoms of major depression may well resolve". In the light of that statement, it is unsurprising that the Plaintiff was keen for Dr Parmegiani to view her footage of the event in January 2023 when she next saw him. 3. Dr Parmegiani again referred (page 18) to the Plaintiff "receiving treatment with a combination of antidepressant medication under the supervision of her treating psychiatrist, and ongoing psychological counselling with a Korean speaking psychologist. I believe both treatments are reasonable and necessary". Dr Parmegiani did not seek to inform himself of those matters by speaking to either of those practitioners. Obtaining the Plaintiff's authority to do so should not have been problematic. 4. No doubt because the Plaintiff did not either adduce evidence from either of those health professionals, or provide reports from them to Dr Parmegiani, the last information he had from Dr Zhang was, at that time, two years and one month old. Dr Parmegiani does not appear to have ever seen a report from the Plaintiff's psychologist, or known what therapeutic treatment the Plaintiff was receiving. With respect to him, based on the absence of knowledge of those matters, it is difficult accept that Dr Parmegiani was in a position to express opinions about the reasonableness or necessity of the treatment being provided by the Plaintiff's psychiatrist or psychologist although, the Court infers that it was considered by them to in some way be necessary or beneficial for the Plaintiff to have such treatment. 5. In this third report dated 30 May 2023 Dr Parmegiani reiterated his earlier opinions, having seen the reports of Dr Roberts and Dr Roldan. Dr Parmegiani recorded (page 3) that he remained of the opinion that the Plaintiff "can be diagnosed with a major depressive disorder that was precipitated and perpetuated by the repetitive threatening behaviours demonstrated by her neighbour". Dr Parmegiani added: "Ordinarily, I would specify that the veracity of her allegations should be tested in a court of law, and that my role is confined to comment on her diagnosis, treatment and prognosis, as well as the likelihood of a causal relationship between said diagnosis and the experiences described if indeed they occurred as reported. Considering the witnesses' statements that I have read, and photographic evidence that she has brought to my assessments, I restate my impression that she presented as a credible historian." 1. It is reasonably apparent, as the Defendant contended, that Dr Parmegiani accepted the Plaintiff's account of her encounters with the Defendant. The Court's findings do not embrace the Plaintiff's allegations to the extent that Dr Parmegiani did. Had Dr Parmegiani not accepted the Plaintiff's version of disputed events, and maintained the position which he, correctly, described in the first sentence of the paragraph cited above, the Court may have afforded greater weight to his opinion evidence. The Court having not found the Plaintiff's allegations proved in a number of material respects, the foundation of Dr Parmegiani's opinions is substantially undermined, and the weight afforded to those opinions is materially reduced. 2. In his fourth report dated 26 September 2023, Dr Parmegiani referred to his consultation with the Plaintiff on 13 September 2023. As is not in doubt, during this consultation the Plaintiff showed Dr Parmegiani the video footage she took of the Defendant hosing the dividing wall between the parties' properties in January 2023. Dr Parmegiani recorded (page 2) that the Plaintiff continued to see Dr Zhang "every few months", having had her last appointment with him in March 2023, and next scheduled appointment being 21 September 2023 and that the Plaintiff saw her Psychologist Mr Jeong every month for about an hour. As with previous reports, Dr Parmegiani had no information from either of those health professionals with respect to the treatment which the Plaintiff was receiving. It was not suggested that he was prevented from, or unable to obtain such information. Dr Parmegiani confirmed in oral evidence that the Plaintiff's medication, Zoloft, 100mg daily and Mirtazapine 15mg at night were low dosage antidepressant medications. 3. Under the heading "Progress since our last appointment" Dr Parmegiani recorded matters reported by the Plaintiff and reiterated his previous opinions. He recorded (page 6) that he had in September 2022 "believed her symptoms were in partial remission, but having examined her today I note that she had experienced further deterioration in her symptoms, now reporting anxious distress and current panic levels". Dr Parmegiani's diagnosis was major depressive disorder with anxious distress. Dr Parmegiani reiterated (page 7) that the Plaintiff "reported that the (August 2020) attack was sudden and unexpected and did not cause her to worry excessively about her safety. She understood that the woman concerned was mentally ill and she bore her no resentment. Moreover, she did not experience any significant symptoms relating to that episode afterwards. In my opinion, the only clearly identifiable persist pattern of stress arises from her repeated and distressing interactions with the neighbour". Why even the possibility that the August 2020 attack could not have contributed to the Plaintiff's reported symptoms was rejected was not explained. Consistent with his earlier reports, Dr Parmegiani substantially accepted the Plaintiff's description of her symptoms, and based his opinions on her allegations being facts. As with his earlier reports, doing so rendered acceptance of Dr Parmegiani's opinions problematic if, as has transpired, the Court found the Plaintiff's evidence significantly unreliable. 4. Dr Parmegiani reiterated his previous opinion that "a person of normal fortitude might indeed suffer such psychiatric illness in the circumstances accounted by (the Plaintiff) with her neighbour". The basis of that opinion was not stated. 5. Dr Parmegiani recorded (page 8) that the Plaintiff "has now received assertive treatment with antidepressant medication and psychological counselling, and that her progress has been minimal, given her persistent fears about the neighbour's behaviour". Again, and with respect to him, Dr Parmegiani had no evidence from the health professionals who the Plaintiff actually sees regularly and has seen for a lengthy period. What his opinions were based on what was not stated, and appear to have been in reliance on what the Plaintiff reported. 6. Dr Parmegiani expressed the opinion that: "Given the diagnosis of a major depressive disorder with anxious distress, the treatment of choice should include assertive treatment with antidepressant medication, possibly augmented by other strategies such as mood stabilisers, and the provision of ongoing psychological counselling. In my opinion, her current treatment is maintaining her at best at her present level and will need to be continued indefinitely as long as she lives in the same house and the neighbour continues to live next door." 1. In his final report dated 6 November 2023 (Exhibit P4), Dr Parmegiani referred to the reports of Drs Roldan and Roberts and reiterated his views with respect to the Plaintiff's condition and prognosis remained as he had previously stated them. Medico-legal evidence of Dr John Roberts 1. The Defendant relied on reports of Dr John Roberts of 12 June 2022, 26 February 2023 and 1 November 2023 (Defendant's Court Book Tabs 12, 14 and 15). 2. As was Dr Parmegiani, Dr Roberts was engaged to provide a medico-legal report. Dr Roberts referred to the documentation provided to him and provided his comments on some of that documentation. Dr Roberts suggested (page 10, Tab 12, of his first report) that the Plaintiff's "psychopathology extends to a periods [sic] long prior to her problems with (the Defendant)". Dr Roberts referred to the Plaintiff as "unreliable as a historian" and suggested that "any allegations made by (the Plaintiff) would need to be confirmed by an independent verification". As will be seen, whereas Dr Parmegiani uncritically accepted the Plaintiff's description of disputed events and her symptoms, Dr Roberts essentially rejected them. 3. Dr Roberts referred to his consultation with the Plaintiff on 9 May 2022 and suggested a number of matters which in his view raised "doubt as to the truth and accuracy of the allegations made" by the Plaintiff. Cross-examination revealed that the reference to "doubt" was something of an understatement. Dr Roberts noted a number of respects in which his engagement with the Plaintiff differed materially from that of Dr Parmegiani, with consequentially different opinions as to the reliability of the information provided. 4. Dr Roberts referred (page 16) to Dr Parmegiani's opinion that the Plaintiff's "psychiatric condition could resolve fully within twelve months at the conclusion of legal proceedings, and initiation of more assertive psychiatric treatment" and stated that "I would consider that such is a reasonable conclusion based on the total assumption of the history given by (the Plaintiff), but if in fact her condition is based on a condition of a paranoid state, such may not (be) the case". That area of significant agreement is the most important matter which emerges from the medico-legal evidence, and provides the essential basis for the Court's ultimate finding with respect to this issue. Inherent in that finding is the absence of a finding that the Plaintiff has a condition based on a condition of a "paranoid state", which neither expert, sensibly having regard to the evidence, suggested. 5. Dr Roberts further referred to Dr Parmegiani's "comments about this being her first episode of major depression and that he would cautiously hold an optimistic expectation about her progress" but suggested that this "requires confirmation of the diagnosis". 6. With respect to whether the Plaintiff had sustained a recognised psychiatric illness as a result of her interaction with the Defendant, or in the conduct which he has admitted, Dr Roberts considered that "no valid conclusion can be drawn in this regard, until it is established what the appropriate diagnosis is and as to whether to what degree (if any) (the Plaintiff's) perceptions of her neighbour are influenced by a mental illness". Dr Roberts stated unequivocally that the Plaintiff's "reliability as a historian and certain bizarre but not necessarily possible fears held by her, require the exclusion of a psychosis which by definition is a mental illness in which there is an inability to appreciate reality and therefore an ability to give an account of reality until proven otherwise, cannot be accepted". Although the plaintiff's evidence at times was suggestive of such inability, the absence of tangible evidence of an inability to discern reality in her day to day life, and absence of expert opinion suggesting that the Plaintiff has a psychotic condition preclude so finding. The Court does not understand that to be urged by either party in any event. 7. In his second report dated 26 February 2023 (Tab 14), Dr Roberts commented on Dr Parmegiani's report and (page 6) reiterated his concurrence with Dr Parmegiani's prognosis. In "summary" Dr Roberts was of the opinion that "based on the information available a provisional diagnosis of an Adjustment Disorder as a working diagnosis is to be considered. If that diagnosis is accepted as stated I concur with Dr Parmegiani's prognosis". The Court accepts that diagnosis. 8. In his report of 21 October 2023 (Defendant's Court Book Tab 17), Dr Roberts referred to his examination by Zoom of the Plaintiff on 18 October 2023. Dr Roberts referred (page 2) to the covert surveillance footage of the Plaintiff undertaking various activities on her premises which had been provided to him, and considered that it "clearly indicates that (the Plaintiff) contrary to her assertion that she does not feel like doing anything, is videoed as being actively involved in the maintenance of her home, undertaking what appears to be sweeping, gardening activities and cleaning activities of the house". Dr Roberts reiterated (page 3) that the "assertion of doing nothing is inconsistent with what has been filmed on the video surveillance provided which showed (the Plaintiff) as being highly active in maintaining her garden, her home, driving and shopping." Dr Roberts considered that the video surveillance footage was inconsistent with other allegations made by the Plaintiff with respect to the impact on her way of living of the Defendant's conduct. Dr Roberts' opinion finds some support in what the footage showed the Plaintiff doing. 9. For the reasons which he had earlier detailed, and in the light of his comments with respect to Dr Parmegiani's evidence, Dr Roberts recorded his opinion (page 13) that "an appropriate diagnosis is a Generalised Anxiety Disorder which predated the interaction between (the Plaintiff) and (the Defendant)". He added that "the assessment of symptomatology and the assessment of the reliability of (the Plaintiff) as a historian is difficult since one cannot rely on the truth and accuracy of her statements because of her deliberate falsification of past history". Although the Court has found the Plaintiff a less than reliable recounter of history, or of her alleged current symptoms, it does not find "deliberate falsification" of past history. Selective but inconsistent recollection, consciously or unconsciously motivated by a desire to assist her case more accurately describes the Court's findings. It is concerning that Dr Roberts felt it necessary to suggest more than unreliability of recollection on the part of the Plaintiff. Albeit in opposite directions, the evidence of Dr Parmegiani and Dr Roberts suffers from their unjustified "nailing their colours" to the Plaintiff's or the Defendant's mast. 10. Dr Roberts concluded that "assuming that the relationship between the neighbours (Plaintiff) and (Defendant) approximates what is being alleged, I would consider that such is difficult for both parties but I would consider that it is not possible to accurately assess (the Plaintiff) since her concealment of past history, especially in regard to psychopathology renders such an impossible task". Cross-Examination of Dr Parmegiani and Dr Roberts 1. As recorded earlier, the Plaintiff did not adduce evidence from the medical practitioner who has been her regular GP for many years, or from the psychologist or psychiatrist who she has seen since early 2020. All that is known from those practitioners has earlier been referred to. The Court infers that adducing further or other evidence from those practitioners would not have assisted the Plaintiff's case. There has been no explanation for the failure to call any of those practitioners. The evidence suggests that the Plaintiff continues to be in regular contact with her GP, her psychologist and her psychiatrist, but, other than the likely frequency of her consultations with them since November 2021 at the latest, there is no evidence of those matters. 2. Neither Dr Parmegiani nor Dr Roberts has ever been in a therapeutic relationship with the Plaintiff. Each has only ever met the Plaintiff for the purpose of preparing evidence for the Plaintiff in the case of Dr Parmegiani, and the Defendant in the case of Dr Roberts. Their reports are aptly described as "medico-legal". Without suggesting that Dr Roberts was simply a "hired gun" for the party who retained him, and "made light" of her alleged disabilities (Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44), or that Dr Parmegiani blindly accepted that what the Plaintiff told him was true, the Court is satisfied that, without impropriety, each medico-legal expert was solicitous to serve the interests of the party by whom he was retained. 3. Dr Parmegiani tended to accept at face value and without question the veracity of the Plaintiff's statements, particularly with respect to the events of 23 January 2023. Conversely, Dr Roberts was overly sceptical, or in some instances simply rejecting of the reliability of the Plaintiff's account of events. The truth with respect to the Plaintiff's symptoms probably lies somewhere between the two substantially divergent medico-legal views of them. Had the medico-legal experts expressed their opinions on the long accepted basis of identified factual assumptions, as Dr Roldan did, the Court would have been likely to have afforded more weight to their opinions. 4. Both Dr Parmegiani and Dr Roberts were reluctant to concede matters which each of them would have known was unhelpful to the party who retained him. Although to a significantly lesser extent than did Dr Roberts, Dr Parmegiani at times advocated for the Plaintiff in the course of his evidence. At least to some extent, Dr Parmegiani seemed to distance himself from his earlier more benign opinion when justifying the opinion which he most recently expressed. 5. Against those introductory remarks, it is appropriate to refer in some detail to the cross-examination of Dr Parmegiani and Dr Roberts. Dr Parmegiani's evidence in cross-examination 1. The medico-legal experts differentiated between "major depressive episode" and "major depression" conditions. The Court accepts that the events of Christmas Eve 2019 constituted a "major depressive episode", and that, absent any intervening aggravating events, it would be realistic to expect the Plaintiff to take some time to recover from that episode. As noted earlier, despite their differences, the medico-legal experts do not ultimately differ materially with respect to the Plaintiff's prognosis. 2. Dr Parmegiani confirmed (T 269) that he first met the Plaintiff on 22 March 2021. Dr Parmegiani confirmed (T 271) that he considered the Plaintiff to be a "comprehensive historian". Although "comprehensive", the Plaintiff's presentation in the witness box established that the Plaintiff was not a comprehensively reliable historian. 3. Dr Parmegiani confirmed (T 272) that in his report of 20 October 2022, based on his assessment of the Plaintiff on 30 September 2022, his opinion was that she was in "partial remission". Dr Parmegiani referred (T 273) to his written opinion that the Plaintiff "reported psychiatric symptoms that were consistent with a diagnosis of major depressive episode now in partial remission, and the symptoms were understandable within the context of her experience, and did not appear to be exaggerated or embellished". The only objective basis on which Dr Parmegiani justified later retreating from that opinion was the footage of the events of January 2023, and the Plaintiffs interpretation of those events, and the reporting of her alleged symptoms. Dr Parmegiani speculated or conjectured about matters which were not self-evident from the footage itself. So doing was fraught. As with most exchanges between the parties, there were two sides to the story. Dr Parmegiani erroneously chose to adopt a malign interpretation of the footage. A benign interpretation was also available. 4. Dr Parmegiani confirmed that, at the time he did a "review of documents" that were provided to him on 30 May 2023 he had no reason to alter his previously stated opinion. When it was suggested to Dr Parmegiani that meant "that as far as you were aware, you thought she was still in partial remission?" (page 273, line 24), Dr Parmegiani replied "having been given offered information, I couldn't comment, because major depression can be a fluctuating condition, but the last report, my opinion, I believe was correct then". With respect to him, unlike his responses generally during cross-examination, Dr Parmegiani was somewhat guarded when further questioned on this topic. When it was put to Dr Parmegiani (page 273, line 36) that as at 30 May 2023, when he wrote his report "You had no reason to change your diagnosis. That's what you say in there?", Dr Parmegiani replied "Which diagnosis? I have no reason to change the diagnosis of major depression". 5. In the answers to the questions that followed, Dr Parmegiani maintained that his first report recorded "major depression" and that his second report recorded "partial remission". With respect to him, Dr Parmegiani's explanation for the different wording was less than compelling. It was put to Dr Parmegiani (page 274, line 35) that in his last report of 26 September 2023 his "diagnosis and opinion changed quite substantially". Dr Parmegiani replied, "Not substantially. Still major depression. It's the severity of the condition has worsened, so, in my opinion, it was no longer in partial remission and, in fact, I described it with anxious distress, because at that time the features of anxiety and agitation seemed to be a lot more prominent than they had previously been". Dr Parmegiani confirmed that he based that opinion on "the way she presented". In view of his written and oral statements, the "presentation" which Dr Parmegiani substantially relied upon was what the Plaintiff told him, and what he inferred from the January 2023 CCTV footage the Plaintiff showed him. 6. The Court is satisfied having regard to the Plaintiff's presentation in the witness box under cross-examination that she well understood that Dr Parmegiani's assessment of her would turn materially on how she "presented" when she saw him. The Plaintiff was concerned to have Dr Parmegiani accept her report of her symptoms. Support for that is gained from the Plaintiff taking photographs of the events of 23 January 2023 unsolicited to show Dr Parmegiani. 7. Dr Parmegiani commented with respect to the photographs (T 275) "To the best of my recollection, there was a photograph of dirty foliage and rotten leaves on a footpath next to the house. I believe that she did take a photograph of the neighbour spraying the wall on the house and, at least from the photograph, it looked like the render had been damaged by the heavy pressure spray". The Plaintiff has never given evidence that on that or any other occasion has the render on the wall of her house been damaged. Subsequent cross-examination of Dr Parmegiani on the photographs provided to him in September 2023 by the Plaintiff made clear that Dr Parmegiani assumed that the Plaintiff's version of the event was correct, and drew inferences adverse to the Defendant in reliance upon it. 8. Dr Parmegiani said in cross-examination (page 276) that he did not "change my diagnosis" asserting that the diagnosis had been "consistent all along. I changed the severity based on a clinical presentation on the day. If there was a linkage to the behaviour of the Defendant, that's what happened to be the case, according to her rendition of the events, but I'm not here to judge whether those events occurred or not. That's a matter for the Court to decide. I'm just saying that if they did happen as reported, it make sense that her clinical condition would have deteriorated". As Dr Parmegiani properly observed, it is for the Court to determine the probabilities with respect to disputed issues of fact. Regrettably, Dr Parmegiani did not adhere to that principle, and essentially accepted the Plaintiff's version of disputed events. As is apparent from these reasons, Dr Parmegiani and the Court view the reliability of the Plaintiff's accounts of disputed events quite differently. 9. In further cross-examination of Dr Parmegiani in relation to the events of 15 January 2023, Dr Parmegiani said that (page 277, line 38): "It feeds into my opinion that the alleged behaviour by the Defendant, if it occurred as reported, was a causal factor for the deterioration in her clinical condition. Q Doctor, if it didn't happen as reported, what effect would have that on your report? A Then if it absolutely did not happen, the deterioration would have to be explained by other means." 1. After further cross-examination Dr Parmegiani acknowledged (page 278, line 49) that "If there was no perception of intimidation, then the deterioration is not explained by those events". Other than her saying so, there is no basis for finding that the Plaintiff then perceived intimidation. The Court's reservations about the reliability of the Plaintiff's evidence renders that an insufficient basis for so finding. Dr Parmegiani confirmed, in response to questions from the Court, that the antidepressant dosage of Zoloft which the Plaintiff was taking (page 279) was a "mid-range dose" whilst (page 280) the Mirtazapine which the Plaintiff was taking was a "low dose". 2. Dr Parmegiani (page 280) was invited to agree that the Plaintiff's appointments "tend to be about six monthly with Dr Zhang". Dr Parmegiani agreed with that suggestion and said that "it implies that her condition is stabilised and he is not planning to make any immediate changes in her – in her treatment". As Dr Zhang is, and has for some time been the Plaintiff's treating psychiatrist, that evidence is significant, and unhelpful to the Plaintiff. 3. Dr Parmegiani was asked (page 280) whether "in general, would it be your expectation that her condition really could – would be improved by the cessation of litigation, still?" Dr Parmegiani replied (page 281) "After the – in my opinion, after the end of litigation, and based on – on the assumed diagnosis of major depression – depressive disorder, pardon me, I think that she most likely will respond fully to the medication and to the psychological treatment that she is receiving within a period of six months, six to twelve months, and that is based on the assumption that the end of litigation also means the end of conflict". The Court accepts Dr Parmegiani's opinion. The Court has made no findings of relevant "conflict" since Christmas Eve 2019. Although a cold war is likely, the evidence does not establish a likelihood of conflict resuming. 4. Save for the alleged events of 15 January 2023, which the Court finds capable of explanations not involving "conflict", it is now more than four years since the events of Christmas Eve 2019 and there has been no allegation of anything remotely resembling the events of that evening in that period. It would be realistic in the circumstances to expect, if Dr Parmegiani's medico-legal opinion is embraced, that by the end of 2024 or early 2025, the Plaintiff "most likely will respond fully to the medication and to the psychological treatment that she is receiving". As will be seen, that finding assumes considerable significance in determining the Plaintiff's damages. 5. Dr Parmegiani was cross-examined about the Plaintiff's pre-Christmas Eve 2019 psychological wellbeing. Dr Parmegiani said (page 284) that "2016 to 2020, without medication that would suggest that she was clinically well". Dr Parmegiani added that (page 284) "After 12 months of remission … on no medication, you can assume that she's clinically well". That opinion was not based on the Plaintiff's contested statements, and is accepted. 6. Dr Parmegiani was asked (page 284) to assume that, as at 4 June 2018, the Plaintiff had been provided with a "management plan referred to anxiety and depression by her general practitioner." Dr Parmegiani seemed unaware of the management plan. Dr Parmegiani was asked (page 284) whether, if it were proven to be the case "that she was undergoing that treatment or if she was going to undergo, and she was suffering from those symptoms that I've outlined; how would that affect your opinion?" Dr Parmegiani replied "it would influence it, but based on the findings of general practitioner – you haven't suggested any symptoms, any – you referred to substance abuse; I don't what the substance abuse is. Based on just the opinion of a general practitioner, I would take it with a pinch of salt. I would like to have confirmation from a specialist". The Court has not heard from the medical practitioner best placed to give evidence about that. In the circumstances, it can be inferred that such evidence would not have assisted the Plaintiff's case. The general practitioner in this case had been the Plaintiff's general practitioner for many years prior to 2018. Having not been called as a witness, the Court cannot make findings about the "salt" to which Dr Meyerowitz's opinions were entitled. It can reasonably be inferred that the Plaintiff told Dr Meyerowitz things and/or he considered that a management plan to address "anxiety and depression" was indicated in 2018- the year before the parties' differences commenced. 7. Dr Parmegiani reiterated (page 285) that he would "prefer the opinion of a psychiatrist before I commit to believe that she suffered from a major depressive disorder all along". Dr Zhang may have been able to provide that opinion, had the Plaintiff elected to have him give evidence. The Court does not find that the Plaintiff had a major or other depressive disorder "all along". However, that does mean that the Plaintiff was not pre-disposed to suffer the injury which she suffered on Christmas Eve 2019. 8. Dr Parmegiani was asked about a vicious attack on the Plaintiff on 20 August 2020. Dr Parmegiani was reminded of the statement in his report that the incident "did not sound particularly traumatic" (page 287). Despite her claims in these proceedings, and suggestions to Dr Parmegiani, the Plaintiff did not view it that way at the time. The Court is not in doubt that, two years later, the Plaintiff was anxious to, and did, convey a very impression of the impact of the attack on her to Dr Parmegiani. 9. Dr Parmegiani confirmed that he reached that "conclusion" from "what she described her response to the attack" to be, but did not recall "exactly what she described", and said that the Plaintiff "did not describe any specific symptoms of a psychological nature arising from that attack". That was unsurprising. It was put squarely to Dr Parmegiani (page 287) "So is it your opinion that she suffered – she sustained no psychiatric injury as a result of that incident?" Dr Parmegiani responded "My opinion is that such an incident may have exacerbated at the time the symptoms of depression and anxiety she was already suffering from." Dr Parmegiani was referred (page 288) to statements which the Plaintiff made approximately four days after she was stabbed. Dr Parmegiani conceded (page 288) that it was "evident that such an incident would have an effect on her" although he suggested that, as the Plaintiff asserted, the impact could have been short-lived. With respect to him, and having regard to his opinion with respect to the impact of the Defendant's conduct on Christmas Eve 2019, and in January 2023 on the Plaintiff's mental health, Dr Parmegiani's unquestioning acceptance of the Plaintiff's statements about the impact on her of the August 2020 attack renders acceptance of his opinion in that regard fraught. 10. Dr Parmegiani agreed (page 290) that "based just on being sprayed with a hose" the Plaintiff "would have no reason to believe that he (the Defendant) would attempt to kill her". Acceptance of that proposition renders more problematic acceptance of Dr Parmegiani's opinion with respect to the impact of the August 2020 attack on the Plaintiff. 11. Dr Parmegiani was reminded (page 290) that "On 27 August 2020 when she saw Dr Zhang, 7 days after the stabbing, (the Plaintiff) told Dr Zhang that she believes her mental health condition is permanent and will not improve on that day, 7 days later after the stabbing". When asked "How does that fit in with what you've just explained, in terms of her relating it back to the Defendant?" Dr Parmegiani replied "All I can say is that at that time she was probably in such a state of distress to believe that she (would) not get better". Dr Parmegiani agreed after further questioning (page 291) that if the Plaintiff "was already suffering from a psychiatric problem before, then that situation most likely would have made that problem worse". Dr Parmegiani said (page 292) that "The stabbing could have made the condition of depression and anxiety worse" and "I speculate that she had been seeing Dr Zhang. You don't just go and see a psychiatrist for no reason, so she must have been suffering from some kind of psychiatric symptoms that preceded the assault, and I presume that those symptoms are anxiety and depression and I presume – which is logical – that they got worse immediately after a physical assault". Although based on a series of "assumptions", those concessions were appropriate, and significant. 12. Dr Parmegiani said in response to a question from the Court (page 293) that it "stands to reason that immediately after that (August 2020) assault (the Plaintiff) may feel more distress, more anxiety, and her symptoms would become worse, but the symptoms were present beforehand." Dr Parmegiani reiterated (page 294) in response to the Court enquiring whether his opinion was "that that assault would have exacerbated what you believe was her state of psychological, mental health, immediately prior to it" Dr Parmegiani answered "yes". Dr Parmegiani (page 295) qualified that evidence saying that the Plaintiff: "… developed symptoms of anxiety and depression from 2019. She consulted with Dr Zhang then. He made a diagnosis of adjustment disorder. An adjustment disorder is a relatively less severe form of depression and anxiety, and he began to treat for her, but she did continue to get worse. … If the behaviour of the Defendant is proven to be correct, or incorrect – malicious, if we want to use that word, that persistent behaviour led to the progression from adjustment disorder to major depressive disorder. Now, she was exposed to a single incident … in August 2020, when her symptoms became worse, temporarily, I believe. I don't know how temporarily because evidently I was not able to – to see documented symptoms immediately after and then months after. However when I saw her in 2021, I believe that she fulfilled diagnostic criteria for major depression. When I saw her in 2021, I thought that the major depression was improving. Now, that would suggest, or may suggest, a few things. One, she is responding to antidepressant medication, that she hadn't been prescribed at my first assessment; and two, is that the long term effect of that assault, stabbing, had not been permanent; had resolved so that she was on her way to getting better. Now, I have to explain why she became worse again between 2022 and 2023, and again, if the behaviour of the Defendant is proven, I can see that as the most evident causal factor for her deterioration. In other words, we're looking at an exposure to repeated events all the time, versus a single incident." 1. The Court has not found that the Plaintiff has been exposed "to repeated events all the time, versus a single incident". The Plaintiff has proved only one incident, on Christmas Eve 2019, and no conduct of the Defendant subsequent to that date which could provide an objective reason for the Plaintiff becoming "worse" in that time. Dr Roberts' evidence in cross-examination 1. Dr Roberts was cross-examined by AVL, the quality of which was variable. Dr Roberts agreed (T 327, line 21) that there were "no medical or hospital records that evidence any psychological disorder in the Plaintiff" during the "12 month period prior to the middle of 2019". It was put to Dr Roberts (T 327) that the Plaintiff "had a well established history of significant psychiatric symptoms before the incident at Central (in August 2020); would you agree?" Dr Roberts replied "I wouldn't agree, as I would say, but such is alleged". 2. Dr Roberts was asked, having seen records of Dr Meyerowitz, Dr Zhang and Ms Preston (page 328) "Would you not agree that that evidences substantial psychiatric problems in the period prior to the assault at Central?" Dr Roberts replied "Yes, I would agree that a person presented as if they had certain psychiatric problems, but as I said, psychiatrists are dependent upon the reliability and veracity of the person who gives an account of symptomatology, and if there is evidence that what you are told is in fact incorrect, the diagnosis of the patient is very – and this is the situation with". The AVL link failed at that point. 3. On resumption Dr Roberts said that Ms Preston, Dr Meyerowitz and Dr Zhang "reported the matter as they saw it, and as they were informed". It was put to Dr Roberts that (T 328) "They appear to have accepted the complaints, and proceeded to engage in a treatment program for psychiatric illness would you agree?" Dr Roberts replied "Yes. I would assume that they would have, yes". Implicit in Dr Roberts' response was an unfounded inference that the health professionals would have treated the Plaintiff without having formed the opinion that such treatment was warranted. Dr Roberts reiterated (T 328) his "understanding" that there was "no medical or hospital evidence up until prior to 24 December 19, Ms Cho had sought any or obtained any medical, psychiatric or psychological treatment in that period". 4. It was put to Dr Roberts (T 333) that "Your criticism of the Plaintiff is that you consider she has given inconsistent accounts about the severity of that (August 2020) incident and you think that she's understated it. Would that be a fair summary of your view?" Dr Roberts replied: "My opinion of Ms Cho is that she gives vastly different accounts in regard to a significant matter at different points in time and that would, if one was assessing a person psychiatrically, forensically psychiatrically, that would raise the question of her being an unreliable historian and that's why I said it. It's very difficult for a psychiatrist to make a – an opinion with regard to someone who changes the story in a very dramatic way because one is dependent on the veracity of the client to give a consistent account of a matter's effect." 1. It was then put to Dr Roberts "In any event, whatever the events (of August 2020) magnitude was, that there was no medical or hospital evidence subsequent to the event, apart from the first few days, a week, that indicates it had any lasting effect upon or worsening of her symptoms she'd been experiencing prior to that incident. Do you agree with that? That is, that there is no objective evidence in the medical hospital reports that suggest that otherwise?". Dr Roberts replied (T 333) "I can only say that if you have a person who is suffering from a psychiatric condition let's call it, at it's – and it's unrelated – to put the assault by this woman to one side, if she was presenting, you would consider the possibility that if PTSD was not formally diagnosed and even if you assume that a PTSD diagnosis was not applicable, the significant assault would have the potential to aggravate the condition of the claimed mental illness that she claims as present". 2. Dr Roberts was obliged to concede that he had not seen any "medical hospital evidence as to the magnitude of that after the event and the effect on the Plaintiff's pre-incident symptoms". Dr Roberts added (T 334) that what he had seen "is ongoing allegations of psychiatric symptomology to the extent that that was aggravated by the assault is very difficult if not impossible to establish, but from a reasonable psychiatric grounds, you would consider that a person who was suffering from a condition and who had had such an assault would be very vulnerable to aggravation of that condition regardless of what label you put on it. So, if this was a workers compensation thing, the diagnosis would be exactly that – that this incident had the potential to aggravate pre-existing other conditions by virtue of the intensity of the stressor". 3. Dr Roberts agreed (T 335) that "If the complete gambit of Ms Cho's history is assumed, the possibility of an adjustment disorder would be a matter for consideration". That "assumption" lacks foundation in view of the Court's findings with respect to the reliability of the Plaintiff's recollection of disputed events. 4. Dr Roberts was asked questions arising from Dr Roldan's reports. It was suggested to Dr Roberts (T 337) that Dr Roldan "concluded that there was no sufficient basis to state that the Plaintiff had suffered from a psychological or psychiatric condition prior to the injury. By that, he appears to mean in the period immediately preceding, not the entirety of her medical history. On that assumption, I think you already have agreed to an earlier question that there was no evidence of that in the 12 months. Is that right?" Dr Roberts replied "Yes, to the best of my knowledge, there is no evidence". Dr Roberts was then asked "Do you agree with Mr [sic] Roldan's view that the Plaintiff suffers from symptoms of anxiety and depression?" Dr Roberts replied: "That's a really difficult question. I mean, the consensus is that she does suffer from a condition, and I would not resile from that. The question is, what condition? Because one can't get a consistent reliable history. Another fairly peculiar aspect of her presentation is – relates to language. She had – Mrs Cho had an interpreter when she saw me. Dr Roldan did not have an interpreter, as far as I'm aware, and I don't think Dr Parmegiani had one. She is a person who has been in Australia for many years. She completed a tertiary degree in Australia to become a Minister. She's married to an Australian. I cannot understand why her level of English appears to be so compromised when she saw Dr Roldan". 1. Dr Roberts was asked (page 338) whether the Plaintiff's "symptoms are consistent with a diagnosis of major depressive disorder with anxious distress". Dr Roberts replied: "No, if you look – if it is assumed that she has a condition, I would prefer the diagnosis of an adjustment disorder, because the situation is that if one considers the activities undertaken by her – and I'm referring to video film of her sweeping the garden, gardening outside, driving the car, going shopping – that would be [sic] preclude a major depressive condition, because if you look at the DSM-5-TR, that's the latest DSM, you would have a person who would be suffering from a depressed mood most of the day, nearly every day, as indicated either by a subjective report or observation of others. There would also be markedly diminished interest or pleasure in all or almost all activities most of the day, nearly every day, as indicated by either subjective account or observation. I was shown films of Mrs Cho being actively involved in taking care of her house, doing gardening and being interested in this. Another feature is psychomotor agitation or retardation, nearly every day, observable by others, not merely subjective feelings of restlessness or being slowed down. Diminished ability to think, concentrate, or indecisiveness, nearly every day. Well, we can't really comment about that. Recurrent thoughts of death, not just fear of dying. Recurrent suicidal ideation without a specific plan, or a suicide attempt or specific plan to commit suicide. And, so, the situation is that if you've got a major depressive disorder this person is very significantly handicapped. I would prefer the diagnosis of an adjustment disorder, if a diagnosis is to be considered, because with an adjustment disorder, it would still be consistent with that diagnosis that she did engage in gardening, drive a car, go shopping, go to church and do all the activities that she alleges." 1. Dr Roberts was asked (page 339) whether he would "agree that an adjustment disorder is a low level form of depression, depression disorder, in effect". Dr Roberts replied "It's – an adjustment disorder with anxiety and depression includes both anxiety and depression. It is a condition of much lesser severity than the major depressive disorder. It's normal life is approximately 6 months but it may become persistent if the circumstances that give rise to it persist. When the circumstances cease to be operative, the usual but not inevitable outcome is a remission of that symptomatologies [sic]". If it is accepted that the Court is not required to make, or attempt to make definitive findings as to the precise nature or medical classification of any psychiatric or psychological condition from which the Plaintiff currently suffers, Dr Roberts' concessions would support a finding that the Plaintiff suffers from adjustment disorder with anxiety and depression, which may persist to the present day, and, potentially for a time into the future. So doing would accord with the Court's views with respect to the opinions of Dr Parmegiani. 2. Dr Roberts agreed with Dr Roldan's opinion that the activities which the Plaintiff was shown doing in the surveillance video "do not necessarily negate that the Plaintiff may suffer from the psychological/psychiatric condition alleged by her", but added that: "There's certain aspects of this video that are very peculiar. I mean, this is a – this – Mrs Cho believes, or purports to believe, that she's at the risk of being killed by Mr Dayoub, and yet she stands there in full view of him, for quite a lengthy period of time in one particular video, and doesn't make any attempt to conceal herself from a man she asserts has – has this intention to kill her. That does not seem to be the response that I would expect from a person who would be extremely frightened of a next door neighbour who is going to kill her. To the extent that that was her conclusion when she was assaulted by this person in the street." 1. Dr Roberts was then asked (page 339) "Would you agree that Dr Parmegiani has a different view to you about that aspect of the matter?" Dr Roberts replied "Yes. I'm surprised that he has maintained his view when there's irrefutable evidence that he has been lied to". Dr Roberts rejected the suggestion that he was trying to "advocate for the Defendant" in his evidence but, curiously given those denials, reiterated that he was "just saying that if when people lie, the – once a person lies in a psychiatric assessment, it's very, very difficult to place reliance on the complaints made". 2. Although the Court has recorded reservations about the reliability of the Plaintiff's recollection of disputed events, the Court is not persuaded that she has lied to the Court or to any medico-legal experts who she has seen during the course of these proceedings. It is concerning that Dr Roberts felt it necessary to record his view of the Plaintiff's credibility, and do so in such strident terms, instead of saying that "if" the Court found the Plaintiff's account of disputed events unreliable that would support his contested opinion(s). The Parties' submissions with respect to the medico-legal evidence 1. Counsel for the Plaintiff submitted, correctly, that there had been no challenge to the qualifications and expertise of Dr Parmegiani. Similar observations apply to the evidence of Dr Roberts. It was submitted that the histories provided by the Plaintiff to Dr Parmegiani were "consistent with her affidavit and oral evidence". The former proposition is correct, the latter incorrect in view of the Court's findings with respect to disputed issues of fact, and the Plaintiff's evidence in cross-examination on which they were based. 2. The Plaintiff submitted, accurately, that in his report of 28 July 2021 Dr Parmegiani "opined that the Plaintiff was suffering from a major depressive episode characterised by marked symptoms of anxiety, including recurrent panic attacks". 3. Counsel for the Plaintiff relied on Dr Parmegiani's opinion that the August 2020 incident was "unrelated to her current condition" and that the Plaintiff was "a person of normal fortitude, and that her current symptoms are unrelated to previous vulnerabilities or predispositions". 4. The conundrum emerging from the evidence in this case can be simply stated, although its resolution is less simple. If, as Dr Parmegiani and the Plaintiff contend, the vicious assault upon her on 20 August 2020 had no lasting impact on the Plaintiff's psychological or psychiatric wellbeing, it is very difficult to accept that being sprayed with a garden hose on Christmas Eve 2019, with no suggestion of any subsequent conduct of that kind could have had the effect on the Plaintiff which she claims, and which forms the basis of Dr Parmegiani's medico-legal opinion. Conversely, if the events of Christmas Eve 2019 had the effect on the Plaintiff's psychological well-being which she alleges, it is very difficult to accept that something far more serious, as occurred on 20 August 2020 would not have had a significant adverse impact upon her psychological or psychiatric well-being. Although with initial reluctance, Dr Parmegiani accepted in cross-examination that the August 2020 stabbing was likely to have aggravated any psychological issues the Plaintiff had prior to it. 5. The Plaintiff submitted that it would "appear that Dr Roberts did not have access to any affidavit evidence". Having regard to the evidence which Dr Roberts did have, and particularly that of Dr Parmegiani and Dr Roldan, there is little doubt that he was well aware of the Plaintiff's allegations. Cross-examination of Dr Roberts, and his view that the Plaintiff had told "lies" is consistent with his having at least an adequate working knowledge of the Plaintiff's allegations. 6. The Plaintiff submitted, primarily in reliance upon the evidence of Dr Parmegiani, that the Plaintiff was "not formally diagnosable with any psychiatric illness before 2019". In view of the evidence of Dr Roldan, and the concessions made by Dr Roberts, the Court is unable to make a finding contrary to that submission. That does not however render consideration of the Plaintiff's alleged predisposition to suffer injury as a result of the events of Christmas Eve 2019 otiose. That remains a live issue. The other relevant issues are the impact on the Plaintiff's psychological wellbeing of the Defendant's conduct on Christmas Eve 2019, the impact on the Plaintiff of the vicious attack upon her on 20 August 2020 and the Plaintiff's likely prognosis. 7. The Plaintiff submitted, significantly in reliance upon the evidence of Dr Parmegiani that it was "understandable that the Plaintiff would develop a pervasive and intense fear of the Defendant and that he might kill her". The Court cannot accept that it was objectively understandable that the Plaintiff would develop or maintain such fear having regard to the Plaintiff failing to prove her allegations save with respect to the events of Christmas Eve 2019. The Plaintiff's contention that "The stress of the circumstances (relating to the Defendant) would be sufficient to cause a recognised psychiatric illness in a person of normal fortitude" remains one of the matters which the Court must determine. Whilst Dr Parmegiani gave a "guarded" prognosis for the Plaintiff, accepting his evidence, it is open to the Court to find that the Plaintiff's condition is likely to resolve by the end of 2024 or early 2025. 8. It was submitted in reliance upon the evidence of Dr Parmegiani, that the Plaintiff "will continue to experience permanent incapacity to return to work". The Plaintiff's claim for economic loss will be dealt with later in these reasons, but it can be recorded at this stage that the Plaintiff has not worked for many years, has not expressed a desire to attempt to work during those years, and has expressed no desire to "return to work" in these proceedings. Although it is no criticism of him, in those circumstances, Dr Parmegiani's evidence cannot provide support for this contention. 9. Dr Roberts' evidence was criticised on a number of grounds, one of which was that the "opinion and diagnosis of Dr Roberts is in stark contrast to that of the Plaintiff's treating psychologist, treating GP and treating psychiatrist (and by Wesley Hospital)". The extent to which there is a "stark contrast" cannot be properly evaluated having regard to the Plaintiff's failure to call evidence from each of the Plaintiff's treating psychologist, treating GP and treating psychiatrist. 10. It was submitted, properly, that Dr Roberts was "somewhat evasive in his responses to some of the questions asked of him during cross-examination, and that he made a point of restating his negative view of the Plaintiff even when this was not responsive to the questions he had been asked". It was further submitted that Dr Roberts "appeared to be reluctant to make appropriate concessions". That was said to be in contrast to Dr Parmegiani. The Plaintiff's criticisms of the evidence of Dr Roberts are well founded, although the asserted "contrast" with the evidence of Dr Parmegiani is far less than the Plaintiff asserted. 11. The Plaintiff recorded, accurately, that Dr Roldan was not required for cross-examination on his reports. The Plaintiff relied upon a number of matters which Dr Roldan recorded which supported Dr Parmegiani and created an impediment to accepting the opinions of Dr Roberts to those of Dr Parmegiani. The Court has earlier recorded its acceptance of Dr Roldan's expert opinions, and why it did so. Those matters were: "193. Mr Roldan expressed the opinion that: (a) there is no frank evidence that the Plaintiff suffers from psychotic thought disorder including a paranoid state; (b) the fact that the Plaintiff can undertake the tasks/activities [shown in the surveillance video) do not necessarily negate that she may suffer from the psychological/psychiatric condition alleged in this case; (c) covert surveillance cannot possibly assess the Plainiff's activities consistently across time (noting that Mr Roldan appears to have been unaware that the Plaintiff only engaged in the activities shown in the video when she believed that the Defendant was not at home); (d) if the Plaintiff's allegations against the Defendant are accepted, this could result in symptoms of depression and anxiety; (e) he had seen no objective evidence that the Plaintiff manifested psychological disturbance prior to the events the subject of her claim; (f) he could not discount that symptoms of adjustment disorder would not eventually develop so as to meet criteria for major depressive episode or disorder; (g) he accepts that the Plaintiff's treatment history is more consistent with major depressive disorder than adjustment disorder; (h) he had seen no documentation (than the Plaintiff's witness statement to the Police made four days after the occurrence of the Incident) on which to base an opinion regarding the long term impact of the Incident upon the Plaintiff - "a vacuum of information referring to [the Plaintiff's] reaction to the stabbing incident"; (i) the Incident may have had an impact upon the Plaintiff, but on the basis of the available evidence, it is difficult to offer a more definite opinion regarding the extent of this contribution and/or its duration; (j) the Plaintiff's scores on the depression anxiety stress scales showed extremely severe range scores for depression and anxiety, and a score within the severe range for stress; and (k) the Plaintiff scored well within the credible range in the the test of malingered memory, and there was no psychometric evidence of deliberate cognitive underperformance or feigned disability." (Paragraph 193 of the Plaintiff's outline) 1. Having regard to those matters, the Plaintiff submitted that the Court would comfortably prefer the opinion evidence of Dr Parmegiani to that of Dr Roberts. 2. The Defendant contended that, to the extent that the Court found that the Plaintiff suffered from a recognised psychiatric condition after Christmas Eve 2019 the Court would also find that the Plaintiff suffered from a similar, albeit not identical condition from well prior to that time. 3. The Defendant relied upon the Plaintiff's attendances at St George Hospital on 7 February 2014 "complaining of atypical chest pains and symptoms, no different to what she complains the Defendant caused in these proceedings" (Defendant's Cross-Examination Court Book page 2278). The Defendant relied upon the Plaintiff having seen Dr Schneider, Cardiologist, whose report dated 10 February 2014 recorded that he "tried to reassure Joanne that she had good cardiac health with her chest discomfort not cardiac in origin" (Defendant's Cross-Examination Court Book page 2349). Reliance was placed upon the Plaintiff's continued consultations with Professor Allan, Cardiologist, who "diagnosed" her with anxiety and depression disorder (Defendant's Cross-Examination Court Book 2286). 4. The Defendant relied, both in this context and with respect to the credibility of the Plaintiff generally, on the Plaintiff saying that, at the time of those consultations her problems "related to financial stress" (T 51 line 5) which was contradicted by what the Plaintiff told Dr Allan about her neighbour in June 2014. The Defendant submitted that the reason for the Plaintiff's attempt "to disavow this history is because it demonstrates the difficulties placed upon others by the Plaintiff". 5. The Defendant referred to the Plaintiff suffering from "chronic" pain and tightness to her upper shoulders, neck and back (Defendant's Cross-Examination Court Book 2231) as at 29 August 2015, which continued into 2017 and as late as 2019. The Plaintiff continued to see Professor Allan at least up to August 2017 (Defendant's Cross-Examination Court Book 2303). 6. The Defendant relied on the Plaintiff having been provided with the GP management plan by Dr Meyerowitz, which she signed (Defendant's Cross-Examination Court Book 2232) on 4 June 2018 and the component of the plan which included "treating anxiety and depression … maintaining social/family life and maintaining moods". The Defendant also relied upon the Plaintiff agreeing to undergo "psychological counselling, cognitive behaviour therapy and "AA group" or alcohol abuse groups". 7. The Plaintiff's rejection of any suggestion that she had ever had a problem with alcohol or attended alcohol abuse groups can be accepted. Doing so does not detract materially from the weight which is otherwise able to be attached to the fact that the Plaintiff's long time GP considered a management plan was indicated, and that it was for the reasons which he recorded. 8. The Defendant relied on the Plaintiff receiving treatment from Dr Byung-Hoon Choi for anorexia and weight loss, lethargy and malaise as at 13 November 2018 (Defendant's Cross-Examination Court Book 2237). The Defendant also relied on the Plaintiff having undergone physiotherapy under the care of Thomas Kuk, including sessions on 31 December 2019. The Defendant relied upon the Plaintiff having sought physiotherapy for unrelated injuries before seeking psychiatric treatment in response to the Defendant's alleged conduct. 9. The Defendant further submitted that the clinical records of Dr Meyerowitz demonstrated that the Plaintiff was "on large amounts of medication for the preceding 10 year period, in addition to a multitude of other health complaints" (Defendant's Cross-Examination Court Book 2241). 10. The Plaintiff was submitted to have given Dr Parmegiani a "dishonest history which was in her favour" with respect to any history of psychiatric illness prior to the events of December 2019. The Plaintiff's statements to Dr Parmegiani have not been shown to have been literally incorrect, although Dr Parmegiani was given less than the whole story, and was given a version of events which the Plaintiff thought would best assist her case. 11. The Defendant urged the Court to find that the "Plaintiff's medical history permits a finding that her symptoms, now said to have been caused by the Defendant, existed well before the events on 24 December 2019". 12. The Plaintiff's recorded symptoms over the five years prior to Christmas Eve 2019 have similarities with those which she has alleged in these proceedings but, in the absence of evidence of her having been seen or diagnosed by a psychiatrist with any recognised psychiatric condition or disorder, and with no disrespect to her long term treating GP Dr Meyerowitz, the evidence falls short of establishing that the Plaintiff had a pre-existing psychiatric condition or disorder. It is unlikely that Dr Meyerowitz would not have referred the Plaintiff to a psychiatrist had he not considered that to be appropriate. On the other hand, there is force in the submission on behalf of the Defendant that the Plaintiff's recorded symptoms over the five years prior to Christmas Eve 2019 suggest that she may have been more prone to suffering psychological or psychiatric injury on Christmas Eve 2019 than she would otherwise have been. This touches upon the conundrum identified earlier in these reasons to which more detailed reference will be made later. 13. The Defendant submitted that the Plaintiff had been "proven to have lied about the history she provided to Dr Parmegiani" during cross-examination. Although the Court has earlier recorded numerous instances in which the evidence of the Plaintiff was inconsistent, contradictory, unconvincing and unreliable, it is not prepared to, and does not need to find that the Plaintiff "lied" to Dr Parmegiani. It is sufficient to record that, for the reasons the Court has set out in detail earlier, the Plaintiff's disputed allegations have to be approached with considerable caution. To record that the Plaintiff recounted events and symptoms selectively would be to encapsulate the Court's findings with respect to her evidence of disputed matters. It is not insignificant that very shortly after Christmas Eve 2019 the Plaintiff was already seeking to gather medical evidence to assist the claim which she later brought against the Defendant. In January 2020 the Plaintiff seems to have been as anxious to gather evidence as she was to seek treatment for the symptoms which she claimed she suffered after the events of Christmas Eve 2019. 14. The Defendant submitted that the Plaintiff attempted to explain away that the true source of her anxiety and depression in 2014 was not the "financial struggle" which at various times she asserted ceased shortly thereafter but at other times suggested continued until 2018, but rather what she told Professor Allan at the time. The Plaintiff's inconsistent explanations with respect to the cause of her reported anxiety and stress in 2014 cannot be reconciled. The Plaintiff's unconvincing attempts to rationalise them were unconvincing. 15. The Defendant made a number of submissions about the Plaintiff's motivation to bring these proceedings and submitted that the Plaintiff was "motivated by greed". The Court does not embrace that submission. The Plaintiff is entitled to prosecute her claim. If she is successful, damages will be awarded. If the Plaintiff is unsuccessful she will not be awarded damages, and is likely to be ordered to pay the costs of the proceedings. Save to the extent that it is shown to impact on credibility or reliability of the Plaintiff's evidence, greed or its absence is not a relevant consideration in these proceedings. 16. The Defendant relied significantly on Dr Parmegiani's opinion that as at 30 September 2022 the Plaintiff had symptoms which were "consistent with major depressive disorder" but was "now in partial remission". Reliance was placed on "the opinion that if her neighbour was subjected to sufficient punishment to act as a strong deterrent, his behaviours might cease. This is a distinct possibility, and should it occur, I anticipate that Ms Cho's symptoms of major depression may well resolve". The Defendant submitted, correctly in the Court's view, that the Defendant and the Plaintiff "had no real direct interactions since December 2019". 17. The Defendant relied upon Dr Parmegiani's report in September 2022 that the Plaintiff continued to "enjoy an excellent relationship with her husband", managed to get on well with everyone else in her life, apart from the neighbour" and "occasionally attended church services in Sydney's CBD on a Sunday". Reliance was placed upon Dr Parmegiani confirming in his report of 30 May 2023 that he maintained his previously expressed view. 18. The Defendant relied upon Dr Parmegiani's concession that what he considered to be the Plaintiff's condition could resolve within twelve months of the present proceedings being resolved (T 280 line 48). 19. The Defendant placed significant reliance on Dr Parmegiani's continued "downplaying" of the August 2020 stabbing episode. The Defendant submitted that Dr Parmegiani's view that "The episode itself did not sound particularly traumatic" (report 30 May 2023, page 2) was contradicted by other evidence, and created a substantial impediment to acceptance of his disputed opinions, and to the weight to which they were entitled. 20. As was the case with both Dr Parmegiani and Dr Roberts, each was significantly reliant upon his assessment of the veracity of the Plaintiff's complaints. With respect to him, Dr Roberts took an unjustifiably sceptical or even cynical view of the Plaintiff's allegations. Conversely, and with respect to him, Dr Parmegiani took an unjustifiably favourable view of the reliability of the Plaintiff's allegations. The Plaintiff was cross-examined closely and effectively over an appropriately lengthy period during the hearing of the proceedings. The Court is substantially better placed to assess the reliability of the Plaintiff's allegations than was either of the medico-legal experts. As both expressly or impliedly acknowledged, the validity of opinions expressed by each of them were dependent upon the factual assumptions made by them being validated. Regrettably, it was only during searching cross-examination of them that each of the medico-legal experts made the concessions which necessarily followed from that reality. The weight given to the opinions of each expert is reduced in those circumstances. 21. The Defendant relied on the conundrum identified earlier, and reasonably so. It is very difficult to accept that, if the hosing incident on Christmas Eve 2019 caused the Plaintiff to have a major depressive episode, the violent stabbing of her in August 2020 would not have, at least, aggravated any psychological or psychiatric condition from which she was then suffering. Conversely, if the stabbing incident in August 2020 had only a temporary effect on the Plaintiff's psychological well-being, it is very difficult to accept that being hosed in the way she was on Christmas Eve 2019 could have resulted in her suffering a significant psychiatric or psychological condition. That is particularly so having regard to the clear evidence of the Plaintiff going outside with her camera and recording the Defendant as he sprayed the hose on her a second time. 22. The Defendant submitted that the more pessimistic prognosis expressed by Dr Parmegiani in his report of 26 September 2023 was reliant upon "a wholly inadequate basis. His reasoning was that the Plaintiff brought with her photographs from her CCTV camera showing the Defendant, on 15 January 2023 cleaning his property with a high pressure hose". The Defendant submitted that the "photographs tell a different story to what actually occurred. They are taken in a way to facilitate putting the Plaintiff's best case forward". It was submitted that the Defendant "was simply cleaning his yard" and that there was no commonsense basis to upgrade the diagnosis because of this". 23. Importantly, and correctly in the Court's view, the Plaintiff at no time pleaded the events of 15 January 2023 as an event that contributed to her condition. Dr Parmegiani's report became available approximately six weeks prior to the hearing of the proceedings. The Court agrees with the submission of the Defendant that it is significant that Dr Parmegiani's report of 30 May 2023 made no mention of the 15 January 2023 incident. The Court also agrees with the submission of the Defendant that "had the Plaintiff been so concerned about this incident, which occurred in January 2023, she or her solicitors would have told (Dr Parmegiani) that. It was not until September 2023" that the report surfaced. There is force in those submissions. The Court is satisfied that the Plaintiff decided to show Dr Parmegiani the CCTV footage of 15 January 2023 eight months after the event because she thought that it would assist her case. 24. It was submitted that Dr Parmegiani's report should be rejected on the grounds that: "(a) he took an incorrect history; (b) he did not have adequate medical evidence pertaining to the Plaintiff's history to hand; (c) only select medical evidence was provided to him, the earliest of which was in the year 2020 with important records being omitted; (d) his change of diagnosis and prognosis is without any sufficient basis the Defendant, cleaning his balcony, cannot constitute a further incident between the parties (and the Defendant objects to it being pursued by the Plaintiff on the basis it is not pleaded). The Plaintiff was not even present at that time. No other explanation is offered by him as to why the Plaintiff's condition worsened, particularly when there was no real contact between the parties since 24 December 2019; (e) his inability to accept that the August 2020 incident had any contribution to the Plaintiff's mental state cannot be logically reconciled. It was a traumatic bashing which included a stabbing; (f) Dr Parmegiani appeared to advocate for the Plaintiff at each opportunity; (g) his opinion in relation to the change of prognosis/diagnosis was based upon photographs, as opposed to being wholly or substantially based upon his knowledge or clinical expertise (Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305)." 1. The Defendant advanced a number of reasons why the opinion of Dr Roberts should be preferred to that of Dr Parmegiani. The Defendant submitted that Dr Roberts' opinion that "being sprayed by a hose could not give rise to a disease of the mind" (Defendant's Court Book, page 141) was also conceded by Dr Parmegiani in cross-examination (T 282 line 43). 2. Reliance was also placed on the unchallenged evidence of Dr Roldan that it was "difficult to conceive the limited acts which Mr Dayoub has admitted to giving rise to the severe, wide ranging incapacitating and persistent psychological difficulties now alleged" (Defendant's Court Book, page 186). 3. What the Defendant admitted with respect to the hosing, save with respect to the alleged statements that he would "kill" the Plaintiff are not inconsistent with what the CCTV footage shows. Reliance was placed upon the difficulty which Dr Roldan and Dr Roberts found in eliciting a history from the Plaintiff and inconsistencies emerging from that exercise. Had he tested the Plaintiff's claims, Dr Parmegiani would have encountered similar difficulties, and have reflected them in his reports. The Court accepts that, during her interviews with each of Dr Roldan and Dr Roberts, the Plaintiff would have been anxious to say things which she considered would assist her case, and avoid saying things which she realised or believed would not. It was ultimately submitted by the Defendant that "If the Court accepts the allegations made by the Plaintiff, then at most, she suffered an adjustment disorder which she recovered from by October 2020. If the Court accepts that the threat to kill was not made by the Defendant, then no diagnosable psychiatric disorder exists." Findings with respect to medical and medico-legal evidence 1. As recorded earlier, evaluation of the Plaintiff's claims with respect to the consequences of the Defendant's tortious conduct on Christmas Eve 2019 turns materially on the reliability of the Plaintiff's allegations with respect to her symptoms, and the impact on her life of the Defendant's conduct. For the reasons recorded in detail earlier, considerable caution is necessary when evaluating allegations made by the Plaintiff which are disputed, and not supported or corroborated by other reliable evidence. Whether the Plaintiff's selective recollection of events and assertions which she knows are likely to impact on her case is conscious or deliberate is not a matter about which the Court needs to make findings or speculate. The unreliability of the Plaintiff's evidence in the numerous respects identified earlier fall short of establishing that the Plaintiff has "lied" as the Defendant alleges. 2. It is also, as the Defendant submitted, significant that the person who is best placed to give evidence of the Plaintiff's lifestyle post-Christmas Eve 2019, her husband, has given only the most limited details in support of the Plaintiff's allegations. As the Defendant submitted, the Plaintiff's husband "denies having current concerns for client's safety, denied any acute risks at present and is happy to take the client home" (Cross-examination Court Book 3231). Although the Plaintiff had not been diagnosed with a psychiatric illness or disorder prior to the events of Christmas Eve 2019, and accepting that Dr Allan was a Cardiologist, the Plaintiff's anxiety and stress as a result of what she suggested in evidence was an innocent and unexceptional barbeque in the backyard of her neighbour's premises suggest that the Plaintiff was pre-disposed to experiencing psychological or psychiatric disturbance as a result of the Defendant's conduct on Christmas Eve 2019. Dr Meyerowitz's opinion that a mental health care plan was indicated in 2018 also supports finding such pre-disposition. Support for doing so is also gained from unchallenged evidence of Dr Roldan that, in a person who was not particularly vulnerable, the Defendant's conduct on Christmas Eve 2019 could not have caused psychiatric illness or disorder of the magnitude initially and ultimately asserted by Dr Parmegiani. The "conundrum" identified earlier in the proceedings assumes significance in this context. 3. It is difficult to accept that, on the one hand, the conduct of the Defendant on Christmas Eve 2019 caused the Plaintiff the symptoms of psychiatric disorder or illness which she alleged whilst, on the other hand, the vicious attack upon her in August 2020, which could have cost the Plaintiff her life, had only a temporary impact upon her psychological or psychiatric well-being. The Court is satisfied in this respect, without resiling from the criticisms recorded above, that Dr Roberts' opinion is to be preferred to that of Dr Parmegiani. Dr Roldan's unchallenged evidence probably best supports that finding. After, and as a result of the Defendant's conduct on Christmas Eve 2019, the Plaintiff suffered from, and continues to suffer from an adjustment disorder with anxiety and depression which was substantially caused by the Defendant's conduct on that night. There does not appear to disagreement that this constitutes a recognised psychological or psychiatric condition. 4. The function of expert evidence is to guide the Court in its consideration of the factual evidence in the light of the facility experts have for applying knowledge, training, skill and experience to the analysis of matters within their expertise when evaluating the admitted or assumed facts of a case. In Dasreef Pty Limited v Hawchar (2011) 243 CLR 588; [2011] HCA 21; (2011) 277 ALR 611; (2011) 85 ALJR 694, the High Court said at [42] that where an expert's opinion on a particular question "lacked reasoning, the absence of reasoning pointed … to the lack of any sufficient connection between (the opinion) and relevant specialised knowledge". It is not in issue that Dr Parmegiani and Dr Roberts had "specialised knowledge" with respect to psychiatry within the meaning of that term in s 79 of the Evidence Act 1995 (NSW). The issue in this case is the extent to which the opinions were shown to have been based wholly or substantially on the application of specialised knowledge to assumed or agreed facts. In this case, the medicolegal experts should have relied upon the former having regard to the nature and extent of the absence of agreement with respect to the facts, other than the "facts" as they were revealed by the CCTV footage of Christmas Eve 2019. If the evidence of a medico-legal expert is based on "speculation, inference, personal and second hand views as to the credibility" of the Plaintiff, the opinion evidence would not satisfy the requirements of s 79 of the Evidence Act (HG v The Queen (1999) 197 CLR 414; (1999) 73 ALJR 281). The weight afforded to such opinion evidence when admitted, as it was uncontroversially in this case, is reduced when those factors are present, as they were in this case. 5. In Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705 at [85] Heydon JA reiterated, and amplified the requirements for admissibility of expert opinion evidence to include the necessity for it to be "established that the facts on which the opinion is based form a proper foundation for it", failing which, it is "not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge". Although concerned with admissibility, there having been no objection to the receipt of the evidence of Dr Parmegiani or Dr Roberts, the issue in this case is the weight to which the experts' opinions are entitled in the light of the testing of that evidence. As recorded earlier, although recognising the importance of a "proper foundation" for their expert opinions, by treating disputed and unproven allegations as established or rejected, albeit in opposite directions, Dr Parmegiani and Dr Roberts significantly reduced the weight to which their expert opinions were entitled. 6. On balance, and having regard to the defects in the evidence of Dr Roberts which have earlier been referred to, the Court accepts that, as a result of the Defendant's tortious conduct, the Plaintiff suffered from an adjustment disorder with anxiety and depression as and from Christmas Eve 2019. To some extent that resulted from the Plaintiff's pre-disposition to suffer such a condition. The Plaintiff's condition was aggravated, and prolonged by the vicious unprovoked attack on the Plaintiff on 20 August 2020. The Plaintiff's efforts to downplay the significance of the attack, and Dr Parmegiani's unjustified acceptance of her reporting undermined the validity of Dr Parmegiani's opinion about the impact of the attack on the Plaintiff's mental health. As recorded earlier, in view of the Court's findings with respect to the reliability of the Plaintiff's evidence, Dr Roldan's opinions provide the best expert guidance to the Court with respect to the evaluation of the Plaintiff's claims. 7. It is not insignificant that there has been, as the Defendant asserted, save to the extent that there was in January 2023, no direct contact between the Plaintiff and the Defendant in the period of four years since Christmas Eve 2019. The fact that the Plaintiff maintains that her symptoms have continued in those circumstances is supportive of the finding that the Plaintiff was unduly susceptible to psychological or psychiatric injury on Christmas Eve 2019. The evidence fails to establish a rational basis for finding that the Plaintiff's symptoms resulted solely from the conduct of the Defendant on Christmas Eve 2019, or that they continued for as long as the Plaintiff alleges solely because of the Defendant's conduct on Christmas Eve 2019. 8. The conduct of the Defendant on 15 January 2023 does not necessarily have the sinister connotations asserted by the Plaintiff. Support for that proposition can be gained from the fact that the Plaintiff first raised the events of that day with Dr Parmegiani or, it seems, anyone else in September 2023. As the Defendant submitted, no part of the Plaintiff's claim asserts an assault on that date. The Court is not satisfied that the events of 15 January 2023 aggravated or contributed to the Plaintiff's alleged psychological or psychiatric condition. Although not conclusive of the issue, support for the Court's findings with respect to the Plaintiff's psychological or psychiatric well-being is also gained from the surveillance footage showing the Plaintiff undertaking activities outside her premises, and does not reveal any hypervigilance or apparent concern with respect to the whereabouts of the Defendant at those times. 9. The Court accepts that the conduct of the Defendant on Christmas Eve 2019 caused the Plaintiff to be humiliated, anxious and fearful, and to feel powerless and intimidated. The Defendant's conduct caused the Plaintiff psychological or psychiatric disturbance or injury which the Court finds continues to this date. It is necessary to determine to what extent that is referrable to the conduct of the Defendant on Christmas Eve 2019, to the Plaintiff's susceptibility to such injury, and to the aggravating impact of the life-threatening assault upon her on 20 August 2020. The court's evaluative determination involves assessing the degree of probability that each of those matters caused or contributed to the Plaintiff's current condition. 10. It is probable that, but for the Plaintiff's pre-disposition to suffer injury as a result of the Defendant's conduct on Christmas Eve 2019, although she would have temporarily suffered fear, and enduring outrage, the Plaintiff would not have suffered psychological or psychiatric injury to the extent which she did, and that any such injury would not have endured for as long as it has. But for the attack on the Plaintiff in August 2020, it is probable that she would have made a full recovery from the injuries caused by the Defendant's conduct by mid-2022. The Court finds that the Plaintiff is likely to make a full recovery from her injury by the end of this year, or early 2025. The Court's findings with respect to the unreliability of the Plaintiff's evidence provide the factual basis of these findings. 11. The medico-legal expert opinion evidence informs the Court's evaluation of the Plaintiffs current and likely future psychological or psychiatric conditions. The polarity of the opinions of Dr Parmegiani and Dr Roberts with respect to any pre-disposition of the Plaintiff to suffer injury on Christmas Eve 2019, and the impact on her of the August 2020 attack limit the assistance which the Court can gain from their evidence with respect to these issues. The evidence of Dr Roldan helpfully engaged with these issues. Dr Roldan's opinions with respect to the Plaintiff's pre-disposition and her post Christmas Eve symptoms are underpinned by the Court's findings of fact with respect to the two issues. Damages- the parties' submissions 1. The Plaintiff sought general damages in the sum of $200,000. The Plaintiff submitted that she had "suffered, and continues to suffer, serious psychiatric harm as a result of the conduct of the Defendant that has had a disastrous impact upon her life, together with mental anguish and suffering, humiliation, indignity, fear and distress of the mind, emotional distress and shock". The Defendant disputed both the Plaintiff's entitlement to damages, and the quantum urged on behalf of the Plaintiff. 2. Counsel for the Plaintiff provided the Court with a written memorandum indicating a number of authorities which were submitted to be instructive. The Court accepts that those authorities are instructive but, having regard to the factual and other differences between those reported decisions, and the present proceedings, their utility is respectfully considered to be limited. 3. Damages may be awarded for assault and battery, whether or not the Plaintiff is injured or suffers loss. Damages are "very much at large" (Louis v Commonwealth (1987) 87 FLR 277; Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48; (2005) 221 ALR 32; (2005) 79 ALJR 1534). Compensatory damages in the case of torts of assault and battery "are assessed on the basis of the harm to the plaintiff's interest in bodily integrity and liberty. It is unnecessary for the plaintiff to establish economic loss or personal injury in order to recover compensatory damages" (Mansour v Marhop Pty Limited at [142]). 4. The conduct of the Defendant on Christmas Eve 2019 harmed the Plaintiff's interest in her bodily integrity and liberty. As the CCTV footage confirms, long after the Plaintiff may have acted provocatively, and in a manner that was totally disproportionate to any such conduct, the Defendant repeatedly directed a strong spray of water onto the Plaintiff or her home with a strong jet of water from a hose. As the CCTV footage reveals, the Defendant did so from an elevated position overlooking the Plaintiff's premises. The assault and battery of the Plaintiff occurred when the Plaintiff was minding her own business, and entitled to quiet enjoyment of the sanctuary of her own home. The Defendant's mindless, persistent hosing of the Plaintiff and/or her premises, and realisation of her vulnerability caused harm to the Plaintiff's interest in bodily integrity and liberty. The Defendant intended those consequences of his acts. More will be said about that in the context of a consideration of exemplary damages. 5. The Defendant referred to the decision of the Court of Appeal in TCN Channel Nine Pty Ltd v Anning [2002] NSWCA 82 at [100] in which it was said by Spigelman CJ (with whom Mason P and Grove J agreed) that: "100. The High Court has recently explained recovery for consequential loss in the case of intentional torts by invoking a general test. Damages can be recovered for harm that is intended or that is the natural and probable consequence of the tortious act. (See Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; 76 ALJR 163 esp at [13], [14], [73], [75]-[76], [114].) Damage that is the "natural and probable consequence" of conduct is within the "presumed intent" of the actor. (Palmer Bruyn & Parker at [73] and [80] per Gummow J.) Although this case involved injurious falsehood, the High Court's reasoning is of more general application to intentional torts. The issue in the present case is best approached on this more general test. Palmer Bruyn & Parker establishes that reasonable foreseeability is not an element of the test for recoverable damages, a proposition which had been left open in earlier cases (e.g. Lippl v Haines (1989) 18 NSWLR 620 at 639.)" 1. The "general test" to which their Honours referred has utility in this case. Injury of the kind which the Court finds the Plaintiff suffered when assaulted and battered by the Defendant on Christmas Eve 2019 is comfortably accommodated within the concept of "presumed intent". Any suggestion that the Defendant simply hosed the Plaintiff to stop her filming him is rejected. The CCTV footage reveals that the Plaintiff did not attempt to film the Defendant until after the first time he hosed her. For the reasons recorded earlier, the Court finds that the Defendant intended to cause the Plaintiff injury when he hosed her. 2. The Defendant relied upon the Plaintiff's asserted "history of depression and anxiety, including in relation to an incident involving her previous neighbours in 2014" (Defendant's Cross-examination Bundle 3430). The Defendant submitted that his conduct on Christmas Eve 2019 was not the "natural and probable cause of (the Plaintiff's) current presentation". Although the Court does not find that the Defendant's conduct was the sole natural and probable cause of the Plaintiff's current presentation, it was the major cause of it. Save for the incident in 2014, the evidence does not reveal that any pre-disposition of the Plaintiff to suffer injury which a person of normal sensitivity would not suffer resulted in her suffering from a diagnosed psychological or psychiatric condition prior to Christmas Eve 2019. 3. The Defendant relied upon the statement by McHugh J in Bennett v Minister of Community Welfare (1992) 176 CLR 408; [1992] HCA 27 at [429]-[430] that: "The causal connection between a defendant's negligence and the plaintiff's damage is negatived by the subsequent conduct of another person only when that conduct is "the free, deliberate and informed act or omission of a human being, intended to exploit the situation created by the defendant"." 1. Although that was a negligence case, it is difficult to see how the conduct of the Plaintiff's attacker in August 2020 fully satisfied that description. As recorded earlier, the Court finds that the 2020 attack materially contributed to the Plaintiff's pre-existing (post December 2019) psychological or psychiatric injury, by aggravating the injury and delaying the Plaintiff's recovery from it. 2. The Defendant also relied upon the decision of the Court of Appeal in State Rail Authority of New South Wales v Chu [2008] NSWCA 14 at [56] in which it was said with respect to novus actus interveniens "In the absence of a special relationship, one person has no duty to prevent harm to another from the criminal conduct of a third party even if the risk of such harm is foreseeable" and, on the facts of the case, at [57] that there was "a clear break in the causal link between the injury suffered by the respondent as a result of her fall at the appellant's station, and the injury she suffered as a result of the sexual assault some weeks later". 3. The Court accepts that the causal link between the Defendant's conduct on Christmas Eve 2019 and the Plaintiff's injury was impacted, but not broken or severed by the attack on her on 20 August 2020. The Court agrees with the thrust, if not the entirety, of the Defendant's written submissions ([103]-[105]) in relation to the Plaintiff's evidence with respect to the impact on her of the attack on 20 August 2020. As recorded earlier, the Defendant's conduct on Christmas Eve 2019 caused the Plaintiff's injuries, but, having regard to the Court's findings with respect to the reliability of the Plaintiff's evidence, the Court cannot accept that the 2020 attack did not prolong and aggravate those injuries. The Court is satisfied that it is probable that that the attack materially prolonged and aggravated the Plaintiff's injuries. 4. To the extent that the Defendant asserted that any psychological or psychiatric condition which the Court finds the Plaintiff has established was referable solely to the assault on 20 August 2020, and in no manner referrable to the conduct of the Defendant, for the reasons set out below, the Court does not accept such contention. The Defendant's tortious conduct on Christmas Eve caused the Plaintiff injury which persisted up to 20 August 2020. 5. In Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20, Brennan and Dawson JJ referred, at [7] to the assessment of damages at common law, and to the "approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur" as differing from the Court's approach "to events which allegedly have occurred". Their Honours recorded that "The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring". Their Honours added that "The Court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded". 6. The Defendant relied in this context on the decision of the Court of Appeal in Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 at [104]-[109] (Seltsam). The Court there referred, at [104], to "the way in which a Court must determine whether a defendant has discharged the "disentangling" evidentiary burden on it of showing that part of the plaintiff's condition was traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from his pre-existing condition". This is not a negligence case, and the Court does not unquestioningly apply the law with respect to the assessment of damages in negligence cases to this case. As the Defendant appears to have accepted, the Court having found as it has with respect to the impact of the Defendant's conduct on Christmas Eve 2019 on the Plaintiff's psychological or psychiatric well-being, the Defendant bears the evidentiary "disentangling" burden in order to secure a discounting of the Plaintiff's damages. 7. In Seltsam, the Court of Appeal also said, at [105] that where a defendant alleges that a plaintiff has suffered from a pre-existing condition, the "evidential onus … remains on the defendant and must be discharged by it". Also importantly for present purposes, the Court added that the exercise of "disentanglement" requires the Court to "evaluate possibilities in these situations – not proof on a balance of probabilities". The Court added [106] that "other causes entirely unrelated to the defendant's negligent act might have contributed to the plaintiff's ultimate condition". 8. In Seltsam, at [107] the Court said that "A pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation". The Court "must determine whether a comparison may be made between the plaintiff's condition prior to the injury sustained by the defendant's negligence (including the plaintiff's economic and other prospects in that condition) and the plaintiff's condition and prospects after the injuries". The Court observed that nothing in the authorities to which it had referred or stated by it "precludes the judge from carrying out this exercise". 9. The Court concluded its discussion by saying, at [109] "Of course, if the evidence does not adequately establish the pre-existing condition or its possible consequences …, it would not be possible to carry out such a comparison and assessment. In regard to the possible consequences, a scintilla of evidence would not suffice. The evidence must be such that a reasonable person could draw from it the interference that the possible consequences contended for by the defendant existed". Although not having been diagnosed with a recognised psychological or psychiatric illness or disturbance, the Court is satisfied that it is probable that the Plaintiff was pre-disposed to suffering injury of the kind she suffered as a result of the tortious conduct of the Defendant on Christmas Eve 2019. The clinical records and reports of Dr Allan and Dr Meyerowitz covering the period from 2014 to 2018 support that finding. The Court's findings with respect to Plaintiff's evidence with respect to what she said at those times also provide support for that finding. 10. The Defendant submitted that the Court should take into account in assessing the "modest" damages to which the Plaintiff assertedly could only be entitled, that his conduct "was provoked by the Plaintiff invading the Defendant's privacy". The Court rejects that suggestion. Any provocation by the Plaintiff was approximately half an hour prior to the first occasion when the Defendant hosed her. His response was totally disproportionate to any provocation by the Plaintiff. Had the Defendant ignored whatever the Plaintiff did earlier that evening, although neighbourly Christmas cheer would not have broken out, nothing of the kind which occurred that evening would have. 11. The Defendant submitted that the Plaintiff "displayed no objective signs of fear or concern and instead, stood still while being sprayed by water in order to take photos of the Defendant". Save for the first encounter, which involved an assault and battery of the Plaintiff, that submission is well founded. Although the Court takes into consideration the whole of the continuum of events of the evening in assessing the Plaintiff's damages, at least her general damages are referrable to the tortious conduct of the Defendant during their first encounter, and the Defendant's subsequent battery of the Plaintiff. 12. The Defendant submitted that the Plaintiff "went back inside, then re-engaged the Defendant for a second time which goes against her being scared, upset or in any real distress". There is force in that submission. There is also force in the Defendant's submission that the Plaintiff's "insistence on taking photographs of the Defendant supports that her priority was not her safety, but rather, her priority was to gather evidence of the Defendant's conduct". The Court takes that factor into account in assessing the Plaintiff's damages. As recorded earlier, the Plaintiff's general damages are referable to the initial assault and battery of the Plaintiff, and the subsequent battery of her. 13. The Defendant submitted that "In circumstances where the balance of the conduct alleged against the Defendant has not been proven (either by evidence and otherwise by refusing to tender footage apparently showing such conduct), they should not be taken into account in an award. The majority of the allegations, apart from the Defendant cleaning his own yard or conducting maintenance to his house, cannot be proven". The Court agrees with that submission. It is well founded, having regard to the Court's findings of fact with respect to the various allegations which the Plaintiff made against the Defendant, and the time which elapsed after the conduct alleged by the Plaintiff which may have had a causal or contributing connection with her injury. It was conceded by the Defendant that, if the Court accepted that the Plaintiff has an "adjustment disorder, as diagnosed by Dr Zhang", general damages should be assessed at $20,000. Liability and Damages- consideration 1. The Court must predict the "degree of probability" that the Plaintiff would not have suffered psychological or psychiatric injury as a result of the conduct of the Defendant on Christmas Eve, or suffered the injury she did, had she not been pre-disposed to suffer such injury. Although the Plaintiff had not been diagnosed with a psychological or psychiatric condition prior to December 2019, the medical evidence referred to earlier reveals that she was pre-disposed to suffer stress and anxiety as a result of events which would not have had those effects had she not been so pre-disposed. As the authorities recognise, the prediction which the Court makes is not readily capable of "scientific demonstration or proof". That exercise is further complicated by the matter which is next considered. 2. Quantifying the aggravating impact of the vicious assault upon her on 20 August 2020, also involves predicting the "degree of probability" that, but for the August 2020 attack on her, the Plaintiff was likely to have fully recovered from any injuries caused by the Defendant by the end of 2021 or some time in 2022. The Defendant has discharged in part the "disentangling" onus which he bears. The August 2020 attack on the Plaintiff materially aggravated and prolonged the injury which the Defendant's tortious conduct caused her. The injury caused by the Defendant on Christmas Eve 2019 had not resolved by that date. The Court's findings with respect to the medico-legal evidence recorded earlier inform that finding. 3. Determining the Plaintiff's compensatory damages involves the exercise of an undoubtedly broad, but not unfettered discretion. Limited assistance is obtained from other cases. Each case turns on its own facts. 4. The Plaintiff suffered psychological or psychiatric injury as a result of the Defendant's tortious conduct. The Plaintiff's injury has continued for four years, and may not resolve until the end of 2025. Although not to anything like the extent alleged by her, the Plaintiff's injury has had some, albeit modest impact on her lifestyle. 5. The Court having found that the Plaintiff's pre-disposition to psychological or psychiatric injury as a result of the Defendant's conduct, and that the August 2020 attack on the Plaintiff materially contributed to the Plaintiff's current injury, it is necessary to determine the impact of those findings on the liability of the Defendant, or on the quantum of damages which should be awarded to the Plaintiff. 6. Although the parties' submissions engaged extensively with the factual dispute relating to it, the Court does not recall specific submissions with respect to how its findings with respect to the Plaintiff's pre-disposition to suffer psychological or psychiatric injury as a result of the Defendant's tortious conduct should inform either the determination of the Defendant's liability, or the assessment of the Plaintiff's damages. Although the position is reasonably clear in cases involving negligence claims, and nervous shock claims, the Court perceives the position to be less clear in the present circumstances. The passages from Seltsam upon which the Defendant relied suggest that taking into consideration the Plaintiff's pre-disposition to suffer injury which a person of normal fortitude would not have suffered is permissible in this case. 7. In Tame Gleeson CJ said at [16] that: "There may be something about the vulnerability or susceptibility of a particular plaintiff that makes it unreasonable to require a person to have in contemplation the kind, or perhaps the degree, of injury suffered. In the context of remoteness of damage, it is established that a tortfeasor must take a victim as the victim is found; but we are presently concerned with whether there is a duty of care, and whether a tort has been committed. Putting to one side cases where a defendant knows, or ought to know, of the peculiar susceptibility of a plaintiff, the law has established what Brennan J described in Jaensch v Coffey as "an objective criterion of duty". The variety of degrees of susceptibility to emotional disturbance and psychiatric illness has led courts to refer to "a normal standard of susceptibility" as one of a number of "general guidelines" in judging reasonable foreseeability. …" 1. His Honour added that this was "a way of expressing the idea that there are some people with such a degree of susceptibility to psychiatric injury that it is ordinarily unreasonable to require strangers to have in contemplation the possibility of harm to them, or to expect strangers to take care to avoid such harm" and "normal fortitude" "cannot be regarded as a separate and definitive test of liability". Also in Jaensch, Gaudron J referred [60] to Brennan J's statement in Jaensch that the "normal fortitude rule" was not "a universal rule determinative of foreseeability but that, where the question is whether it is foreseeable that members of the general public might suffer psychological or psychiatric injury, the answer "must generally depend on a normal standard of susceptibility"". Her Honour also referred to Brennan J's statement that the "normal fortitude rule" does not apply when "a plaintiff's extraordinary susceptibility to psychiatric illness … is known to the defendant". 2. In Jaensch McHugh J said [87] that "Australian case law holds that the principles governing claims for the negligent infliction of pure psychiatric injury (nervous sock) are different from those governing claims for physical injury". His Honour agreed that "In nervous shock cases, unless the defendant knows that a plaintiff is particularly susceptible to psychiatric damage, the defendant is entitled to assume that the plaintiff is a person of normal fortitude". His Honour further said [95] that the existence of members of the community who are "much more vulnerable to psychiatric illness than others" was not "itself a valid ground for rejecting the normal fortitude test". His Honour added that the "common law judges the conduct of a defendant by itself effect on people of ordinary health and susceptibility unless the defendant is aware of an abnormal weakness or susceptibility of the plaintiff" and that "absent special knowledge, a defendant is only liable for what an ordinary person in his or her position ought to reasonably foresee". His Honour referred [117] to the submission that "injecting the normal fortitude test into the question of foreseeability conflicts with the accepted principle in negligence of talem qualem – the "egg-shell skull" rule". His Honour rejected that submission and said that "the normal fortitude test is an issue going to liability; the egg-shell skull rule goes to quantification of damages once duty, breach and some damage are established". His Honour held that "it operates in the field of nervous shock in the same way that it operates in other areas of the law. Once the plaintiff establishes that a person of normal fortitude would have suffered psychiatric illness as a result of the defendant's action, the defendant must take the plaintiff as he or she is. The defendant's liability extends to all psychiatric damage suffered by the plaintiff even though its extent is greater than that which would be sustained by a person of normal fortitude". 3. Although the Court accepts that statements of principle in negligence cases do not necessarily have application in cases involving intentional tort, the decisions in Tame and Seltsam satisfy the Court that it is appropriate to have regard to the Plaintiff's predisposition to suffer injury, and a more serious injury than a person of normal fortitude would have as a result of the Defendant's tortious conduct. 4. The Court finds it probable that the injury suffered by the Plaintiff on Christmas Eve 2019 was significantly referable to her pre-disposition to suffer injury of a kind which, were the Plaintiff of normal fortitude, she probably would not have suffered. The Plaintiff has not established that she was a person of normal fortitude at the time that she was assaulted and battered by the Defendant. The evidence does not establish that the Defendant knew, or ought to have known that the Plaintiff was not a person of normal fortitude when he assaulted and battered her. Although lacking a "scientific" rationale, the Court finds that the Plaintiff's injury was caused substantially more by the Defendant's tortious conduct than by the Plaintiff's pre-disposition to suffer such injury, and that, his liability should be reduced on that basis. If the Court's finding should inform the assessment of the Plaintiff's damages, rather than the Defendant's liability, in the circumstances of this case, the result would be the same. 5. The Court finds it probable that the injury suffered by the Plaintiff on Christmas Eve 2019 was significantly aggravated by the attack on her on 20 August 2020, and that the attack caused the Plaintiff to suffer injury for, potentially, up to three years longer than she probably would have but for the attack. The Court finds it probable that, but for the 2020 attack, the Plaintiff's injury would have resolved by the end of 2022. A more precise finding is not realistically possible. 6. As the authorities make clear, and particularly in the present circumstances, the Court makes an evaluative determination of the Plaintiff's damages, taking into account its findings with respect to the complicating pre and post injury factors which have been discussed. It is in the nature of such determinations that minds will reasonably differ. The Court finds that the cumulative impact of the Defendant's limited liability due to the Plaintiff's pre-disposition to injury and the aggravation and prolongation of her condition should result in her being awarded general damages of $50,000. That sum is considered appropriate in the light of the Court's findings with respect to causality, and the limited impact of the Plaintiff's injury on her lifestyle. 7. In Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112, at [46], Basten JA said that "Generally, the concept of 'reasons' requires an explanation connecting any findings of fact with the ultimate decision. Where the legal test to be applied involves an evaluative judgment, it may well not be practicable to provide a detailed articulation as to how specified (and conflicting) factors have been weighed in the balance". His Honour's observations have application in this case. To more precisely suggest the impact of the Plaintiff's predisposition and the aggravating impact of the August 2020 attack on the Plaintiff than the Court has, if realistically possible, would involve an unacceptable element of artificiality. Aggravated Damages 1. The Plaintiff sought aggravated damages in the sum of $20,000. 2. In Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47 at [8], the High Court said that "Aggravated damages, in contrast to exemplary damages, are compensatory in nature, being awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like". 3. In Ibbett, Spigelman CJ, at [85], referred to the statement in Appleton v Garrett [1996] PIQR 1 that aggravated damages were appropriate "where the manner in which the wrong was committed was such as to injure the plaintiff's proper feelings of pride and dignity or give rise to humiliation, distress, insult or pain. Examples of the sort of conduct which would lead to these forms of intangible loss was conduct which was offensive or which was accompanied by malevolence, spite, malice, insolence or arrogance". 4. Hodgson JA said in State of New South Wales v Riley (2003) 57 NSWLR 496 at [528] (Riley): "If, in addition to ordinary compensatory damages for injuries to feelings, aggravated damages are to be awarded, then plainly it is important to avoid double counting; and the question arises, what can the additional aggravated damages be compensation for when injury to feelings have already been included in ordinary compensatory damages?" 1. His Honour added that: "If a Court has awarded damages for hurt feelings as part of ordinary compensatory damages, the award of aggravated damages must only be the difference justified by this approach, that is, an award of so much as is necessary to bring the damages up to the upper end of the available range." 1. Hodgson JA's observations have particular relevance for present purposes. On Christmas Eve 2019, the Plaintiff experienced most of the emotions to which the authorities refer. That said, having regard to the Court's findings with respect to the CCTV footage of the events of the evening, and the unreliability of the Plaintiff's evidence with respect to her symptoms, then and subsequently, there is a considerable overlap between the factors which have led to the award of general damages and those which would inform an award of aggravated damages. The overlap however is not entire. 2. In Ibbett, at [136], Spigelman CJ considered that an additional amount of $10,000 on account of aggravated damages should be awarded. His Honour was influenced by the fact that the amount awarded for general damages "was towards the middle of the range". Although imprecise, the rival contentions with respect to "the range" in this case suggest that the Plaintiff's award of general damages sits towards the middle of the range. 3. It is now four years since the Plaintiff sustained the injury for which she is to be compensated. On the medical evidence, it is likely that the Plaintiff will have recovered her health within a further twelve months. The great bulk of the Plaintiff's general damages of $50,000 can be seen as referable to the injury which she has endured over the past four years. 4. Although not identical, the Plaintiff's feelings of "insult, humiliation and the like" as reported by the Plaintiff, substantially provided the assumed facts on which Dr Parmegiani relied in forming his opinion. There is however a significant difference between that account, and the Plaintiff's demonstrated history, as accepted by her treating health professionals, to the extent that there is any evidence from those health professionals before the Court. Even so, the basis of the Plaintiff's general damages award leaves little scope for awarding aggravated damages without "double counting". 5. In all the circumstances, the court finds that an award of $5,000 for aggravated damages would be appropriate to compensate for the matters to which Hodgson JA referred in Riley which are not subsumed in the Plaintiff's general damages award. Exemplary Damages 1. Albeit in the context of seeking general damages in the sum of $200,000, the Plaintiff sought exemplary damages in the sum of $5,000. The Defendant disputed that any award of exemplary damages was appropriate. The Plaintiff's general damages having been assessed at far less than $200,000, the Court does not consider that she should necessarily be limited to an award of $5,000 if exemplary damages are awarded. 2. In Ibbett Spigelman CJ referred, at [28] to the defendant's "outrageous conduct both in itself and in its context" as justifying a "finding of a contumelious disregard of the Plaintiff's rights". Those comments aptly describe the tortious conduct of the Defendant. His Honour considered that the conduct of the defendant, was "deserving of the censure of the Court and that this was one of the rare cases in which an award of exemplary damages was appropriate". Without diminishing the seriousness of the conduct of the Defendant in this case, the conduct of the defendant in Ibbett, the circumstances in which it occurred and its impact on the plaintiff was more egregious than was the conduct of the Defendant. 3. The Chief Justice referred [35] to Gray v Motor Accident Commission (1998) 196 CLR 1 and to whether it was necessary to find "conscious wrongdoing" on the part of the defendant. The Defendant in this case could not successfully assert that his conduct did not involve "conscious wrongdoing". The Defendant knew what he was doing, and could not reasonably deny that he knew that it was "wrong". 4. Spigelman CJ said, at [38] that "the authoritative statement in Australia of the purpose of an award of exemplary damages is that they are awarded to punish and deter" but that "however, an equally authoritative statement is that such damages express the Court's condemnation of objectively outrageous behaviour" (Lamb v Cotogno at [10]). In Wilkes v Wood (1763) 98 ER 489 exemplary damages were said to be awarded "as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the act on itself". 5. To the extent that the Defendant sought to minimise the "outrageousness" of his conduct, the Court rejects any such suggestion. A benign view of the Defendant's conduct is that he "acted in a high handed fashion or with malice" (Fontin v Katapodis (1962) 108 CLR 177). In those circumstances, although the Court finds that it was, the Defendant's conduct need not necessarily have been knowingfully wrongful (Uren v John Fairfax & Sons Pty Limited (1966) 117 CLR 118). 6. In Riley at [138], in observations which resonate in this case, Hodgson JA, with whom Sheller JA and Nicholas J agreed, said that: "While "conscious wrongdoing in contumelious disregard of another's rights" describes the greater part of the field in which exemplary damages may properly be awarded, it does not fully cover that field. Similarly, malice is not essential. Conduct may be high handed, outrageous, and show contempt for the rights of others, even if it is not malicious or even a conscious wrongdoing. However, ordinarily conduct attracting exemplary damages will be of this general nature, and the conduct must be such that an award of compensatory damages does not sufficiently express the Court's disapproval or (in cases where the defendant stood to gain more than the plaintiff lost) demonstrate that wrongful conduct should not be to the advantage of the wrongdoer". 1. Having regard to the principles governing awards of exemplary damages, the Court is satisfied that such an award is appropriate in the circumstances of this case. The Plaintiff was in her "castle" when she was subjected to the assault and batteries visited upon her by the Defendant. The Defendant's conduct was "outrageous", "high handed", and showed a contempt for the rights of the Plaintiff to personal safety, and quiet enjoyment of her home. Only awarding general and aggravated damages would fail to sufficiently express the Court's disapproval of the defendant's conduct, and fail to sufficiently deter the Defendant from similar conduct in the future. 2. In Ibbett Spigelman CJ said at [79] that "the award of exemplary damages is to be assessed in the light of the awards of compensatory and aggravated damages. It is necessary for the Court to conclude that the amount of $25,000 to be awarded with respect to the assault was not sufficient to serve the objectives of punishment and deterrence to manifest the Court's disapproval of the conduct." On the facts of the case, the Chief Justice considered [80] that the award of $10,000 by way of exemplary damages was "manifestly inadequate" and considered [83] that the award for exemplary damages should be increased to $25,000. 3. Although each case turns on its own facts, and reference to awards in other cases are of limited assistance, it is not insignificant that, at [81], Spigelman CJ referred to what had been awarded for exemplary damages in other cases. As Spigelman CJ explained, at [83] the matters which justified an award of exemplary damages are also "pertinent" to an award of aggravated damages. His Honour said that "the difference is that in the case of aggravated damages the assessment is made from the point of view of the plaintiff and in the case of exemplary damages the focus is on the conduct of the defendant" but that it is necessary to "determine both heads of compensatory damages before deciding whether or not the quantum is such that a further award is necessary to serve the objectives of punishment or deterrence or, if it be a separate purpose, condemnation". The Court has made findings with respect to general and aggravated damages. 4. Although the Court has not made the findings sought by the Plaintiff with respect to the various other allegations made by her, both before and after Christmas Eve 2019, it is not insignificant that, during the latter period, the Defendant has been subject to sanctions imposed by the Local Court. To what extent his good conduct is referable to that reality is unclear, but, having regard to the Court's findings with respect to the Defendant's conduct on Christmas Eve 2019, deterrence remains a relevant objective for present purposes, albeit subordinate to condemnation of the Defendant's conduct. 5. The Court does not accept the Plaintiff's contention that the Defendant "did not receive a substantial punishment by the Court in respect of the criminal charge of assault". Conversely, it does not accept that the Plaintiff was disentitled on that basis to an award of exemplary damages. Unsurprisingly, the proposition that the consequences of criminal conduct can be raised advantageously in civil proceedings for damages was not sought to be supported by authority. The Court has regard in this context to the fact that the Defendant has never apologised to the Plaintiff for his conduct on Christmas Eve 2019, or proffered any assurance to her that he would never again act in that way. 6. In all the circumstances, an award of $15,000 for exemplary damages is considered to be appropriate. As with most evaluative or discretionary decisions, minds may reasonably disagree with that assessment. The Plaintiff's economic loss claims 1. The Plaintiff sought substantial damages for past, present and future economic loss. The Defendant submitted that the Plaintiff had not proved any past, present or future economic loss, and that, if she had, the Plaintiff had not established that such losses were caused by his tortious conduct. If relevant economic loss is proved, the Plaintiff must prove on the balance of probabilities that the Defendant's tortious conduct caused or contributed to such economic loss. 2. For the reasons which follow, the Plaintiff has not proved any past, present or future economic loss. Although perhaps unnecessary in those circumstances to consider causality, the Plaintiff has not established a causal link between any such loss and the tortious conduct of the Plaintiff. 3. The Plaintiff claimed loss of income as well as capital losses, and loss of the opportunity to make future capital gains. Cavanagh J said in PP v DD (No. 20) [2021] NSWSC 1312 at [230] that "Like past loss, the Plaintiff must establish what his earning capacity would have been but for the Defendant's conduct and to what extent that capacity has been diminished as a result" of the tortious conduct of the defendant. 4. The evidence referred to below establishes that, if the Plaintiff was unable to participate in property investment as a result of the Defendant's conduct, that would not have necessitated or justified selling either of her investment properties. The Plaintiff's minor involvement in those activities, and absence of evidence that her husband of many years could not, or would not have done them for or on her behalf are fatal to finding that any tortious conduct of the Defendant caused or contributed to any loss suffered by her on the sale of either property. 5. Cross-examination of the Plaintiff in relation to her economic loss claims destroyed any prospect of their success. It is appropriate to refer in some detail to the evidence which leads to that finding. To the extent that it is not expressly referred to in the context of this head of the Plaintiff's claims, the general unreliability of the Plaintiff's evidence referred to earlier also infects her economic loss claims. 6. The surveillance photos of the Plaintiff, and her responses to them in cross-examination, militate against finding that the plaintiff has been prevented or impeded in any way from undertaking such "property investment" activities as she undertook prior to Christmas Eve 2019. The Plaintiff's claim is primarily in reliance upon the asserted impact on her psychological or psychiatric health and asserted inability to be able to cope with undertaking those activities. The Plaintiff has not established that she undertook any significant "property investment", or other income generating activities prior to Christmas Eve 2019, or that she has been, or is unable to continue to undertake such activities as she did as a result of the tortious conduct of the Defendant. 7. The Plaintiff's evidence with respect to her past and present financial circumstances was vague, lacking candour and unconvincing. The Plaintiff was cross-examined in relation to her assertion that, contrary to what she said at the time, in 2014 she experienced anxiety and stress for "financial reasons". The Plaintiff was asked (T 161) "Mrs Cho, don't you say that you are some sort of a property investor?" to which the Plaintiff replied "Yes, I invest – investment". The Plaintiff was asked "The price that you buy a property at is very important, isn't it?" The Plaintiff non-responsively, but helpfully for the Defendant, replied "But for years I didn't do anything about the investment business". It is less than clear whether the Plaintiff was referring to the present or 2014 in giving that answer. This uncertainty creates no difficulty- the Plaintiff has not articulated in any but vague terms what she claims to have done in any "investment business" at any relevant time. 8. The Plaintiff's explanation (T 162) of her alleged financial difficulties in 2014 was vague. When invited to "explain yourself a bit better" (T 162) the Plaintiff replied "I don't want to talking about for my investment business." She was then asked "You don't want to talk about it?" and replied "Yes". When it was put to the Plaintiff "You've brought a claim for your investment business, haven't you?" the Plaintiff replied "Yes, I'm doing for the investment business for the other area but this house is – I'm living in for – living all my life for the dream house, for the absolutely living until die. That is – I – my husband and myself plan to come in and buy this house". When asked "When did you stop having financial difficulties?" the Plaintiff replied "Around 2015. I'm not sure, but after moving houses" but that she would have to look at all the account records. The Plaintiff confirmed that she had not looked at those records. They were never produced. 9. Subsequent cross-examination of the Plaintiff in relation to the acquisition of Number 12 (pages 163-164) elicited unresponsive answers from the Plaintiff which did not clarify her financial position, either in 2015 or at any time subsequently. The Plaintiff's answers in cross-examination (T 164-169) on loan application documents, although not crucial, provided further support for scepticism about the extent to which the Plaintiff has been candid about her financial circumstances in the past or at present. Although the Plaintiff and her husband have apparently been married for many years, the Plaintiff's husband gave no evidence about financial matters, and the Plaintiff's own evidence was vague with respect to their joint financial position (T 170). 10. The Plaintiff's economic loss claim is essentially that, having given no evidence of having had employment, or self-employment, other than allegedly in the context of management of her two South Coast investment properties, as a result of the Defendant's conduct, the Plaintiff was unable to continue to manage those properties, needed to sell them, and did so, for a loss, thereby also losing the opportunity for future investment income and future capital gains. None of those allegations has been proved on the balance of probabilities. 11. The Plaintiff was cross-examined in relation to her alleged pre-Christmas Eve 2019 involvement with management of her property at 24 Conrads Road, Mount Warrigal. On 18 December 2018 the Plaintiff signed an exclusive management agency agreement with AAM Delta Pty Limited t/as MMJ South (Defendant's Cross-examination Bundle 4916-4925). The document recorded (4916) the agent's authority which included a detailed list of property management duties: "(i) obtain and verify references from prospective tenants; (ii) arrange inspections of the property by prospective tenants under the following circumstances: (a) where the property is not tenanted, in accordance with the owner's instructions; (b) where the property is tenanted, in accordance with the owner's instructions and subject to the provisions of the tenancy agreement; (iii) choose tenants; (iv) enter into and sign tenancy agreements; (v) collect rent in accordance with tenancy agreement; (vi) issue receipts for monies received from the tenants pursuant to tenancy agreement; (vii) receive, lodge, claim and disburse rental bonds in accordance with the provisions of the Residential Tenancies Act 2010; (viii) provide tax invoices and receipts when required in accordance with the tenancy agreement; (ix) review rent in accordance with any existing tenancy agreement and with respect to any new or renewed tenancy agreements; (x) serve notices in relation to any breach or termination of a tenancy agreement and as may otherwise be required; (xi) forward to the owner copies of any documentation signed by the agent on behalf of the owner; (xii) effect repairs and maintenance to the Property to a Maximum Pre-approved Maintenance Expenditure not greater than $1,000; (xiii) from time to time engage tradespersons as may be necessary; (xiv) prepare and maintain an inventory of fixtures, fittings and chattels; (xv) carry out inspections of the property as appropriate but not less than every 6-12 months; (xvi) advertise the property for letting or reletting in accordance with item (f); (xvii) in respect to each tenancy agreement, do all things and make such applications as may be necessary for the recovery of possession from tenants, and recovery of monies due; (xviii) respond to and represent the owner where applications are made and/or proceedings are brought by a tenant before the Civil and Administrative Tribunal; (xix) in respect to smoke alarms installed on the Property, carry out, or appoint a contractor to carry out the Owner's installation of maintenance obligations under the Environmental Planning and Assessment Regulation 2000 as amended; (xx) at the end of the tenancy agreement relet the property in accordance with the owner's instructions." 1. The documents produced by MMJ included a number of invoices from tradespersons. The Plaintiff tendered no evidence of having ever engaged tradespersons to do work on the property. The Plaintiff did not suggest that she had ever undertaken tasks which MMJ had contracted to undertake, or undertaken tasks additional to those tasks. 2. Quite apart from the absence of any evidence of the Plaintiff having undertaken work in relation to the management or maintenance of the property, the terms of the management agreement with MMJ make clear that the scope for potentially doing so was very limited in any event. 3. In cross-examination the Plaintiff suggested (T 172) that she and her husband "have to do some organising, some concrete workers and so many other" which she clarified by saying that she and her husband had to "bring in somebody to work in and doing some managing. Otherwise, real estate people never come to watching in for that property to – or anything renovation, something. … Some work, we have to do it ourself". Other than reasserting that she and her husband had to do "some work" the Plaintiff was unable to give any evidence of work which she claimed that she or her husband actually undertook. The Plaintiff's husband's evidence did not advance her claims. To the extent that the Plaintiff's evidence established that she or her husband played any part in the management of the property prior to Christmas Eve 2019, the minimal extent of it was such that, if, contrary to the Court's findings, the Plaintiff was not able to continue to undertake such tasks, her husband would have readily been able to have done so. The Plaintiff's husband gave no evidence that he was or would have been unable to do so. 4. The Plaintiff maintained (T 176) that "Because of Mr Dayoub and because of your injuries (she) had to sell this property". The Plaintiff said (T 177) she believed that the decision to sell was made in 2020. When asked when she came to "the realisation that you needed to sell the property", the Plaintiff was unable to respond, without looking at documentation with respect to the sale of the property. The highest the Plaintiff's evidence came with respect to management of properties was (T 177) "Me and my husband, an inspection day have to be go together and, also, something broken, something fixed for renovation we have to go have look check and also asking real estate people to putting in somebody to fix that kind of things". That claim was not supported by any documentation or the evidence of the Plaintiff's husband, or any evidence that he could not, or would not have undertaken such activities if, which has not been established, the Plaintiff was unable to do so. 5. The Plaintiff was cross-examined on the sales inspection report and exclusive agency agreement which she signed with MMJ on 4 December 2019, three weeks prior to the events of Christmas Eve 2019. The Plaintiff's efforts to explain why she took the decision to sell the property prior to the events of Christmas Eve 2019 were unconvincing. Not insignificantly, the Plaintiff did not suggest that the decision was made because she claimed that the Defendant had hosed her on 2 November 2019. 6. The Plaintiff set the sale price for the property. There is no evidence that the property sold for less than its market value. The Plaintiff gave no evidence with respect to the utilisation of the proceeds of sale of the property. What became of them is, and remains unknown to the Court. To the extent that the Plaintiff asserted that she lost the rental income from the property, the evidence does not establish that the Plaintiff was in a worse financial position as a result of selling the property than she would have been, had she not sold either or both of her investment properties. In cross-examination with respect to her financial position (T 180-182), the Plaintiff was consistently evasive, suggesting "I don't do any financial figures anything all – my house. All – everything, my husband do it". The Plaintiff's husband gave no evidence about such matters. 7. The Plaintiff adduced no evidence from anyone qualified to give it with respect to the likely increases in the value of her investment properties had she retained them. Even if she had, absent evidence of her post sales financial position, and evidence from someone qualified to give it with respect to the impact of income and capital gains taxes on her doing so, the Plaintiff could not have made out her capital gains loss claim. 8. The Plaintiff was cross-examined with respect to the sale of her commercial property at 102 Shellharbour Road, Warilla (T 182ff). The Plaintiff was taken to the lease from Bislab Pty Limited to Pacific Smiles Group Limited signed in 2011. As is not in doubt, the Plaintiff acquired the property subject to the registered lease to Pacific Smiles. The lease entered into on 29 April 2011 was expressed to terminate on 28 April 2021. The lease provided two periods of five years by way of option to renew the lease. The covenants in the lease imposed requirements with respect to "maintenance and repair" on the lessee (clause 10). As is apparent from their terms, those obligations left little for the Plaintiff as owner of the premises to undertake. The "lessor's obligations and rights" (clause 14) also imposed little on the way of the Plaintiff by way of active participation in the management of the premises. The Plaintiff gave no evidence of such participation in any event. 9. On 19 August 2021 (Defendant's Cross-examination bundle, 4008) the Plaintiff and "Smiles Group Healthcare Pty Limited ATF Smiles Group Healthcare Trust" entered into a commercial lease which was expressed to be of twelve weeks' duration, ending on 11 November 2021. Pacific Smiles did not exercise its option to renew the lease of the premises. 10. In cross-examination the Plaintiff confirmed (T 183-184) that she did not "want to carry on" the leasing of the premises, and that it was not sold to Pacific Smiles, but to another dentist or dental entity. The Plaintiff claimed (T 185) that her "husband and myself looking after that property when we buy, and until we sell". That claim has no demonstrated foundation. 11. The Plaintiff was taken (T 185) to documents produced by EA Estate Agents (Defendant's Cross-examination Bundle 4088), and agreed (T 186) that EA Illawarra Agency was managing the property in 2021. The Plaintiff asserted (T 188) that she sold the property after the lease expired "because it's too much work for me", and that she had to "do all the real estate, kind of work for this". The Plaintiff has adduced no evidence establishing what she did in relation to the property, much less that any injury caused by the Defendant prevented her from continuing to do those things. 12. To the extent that the Plaintiff may have suffered a loss on the property, it has not been established that any such loss resulted from the forced sale of the property or that, even if it did, that loss was caused by the conduct of the Defendant. Perhaps, as the Plaintiff appeared to suggest, in response to Covid the price of the property diminished, but the Court does not speculate about that. The Plaintiff has not proved that the sale was other than pursuant to a commercial decision made by the Plaintiff at the time. The silence of the Plaintiff's husband in this regard is relevant in that respect. 13. The Plaintiff was cross-examined on Tax Returns with respect to historical losses from her rental properties up until 2019. The Plaintiff's Tax Returns recorded the following: 1. The Plaintiff's Tax Return for the year ending 30 June 2011 revealed a taxable loss of $2,126 which was referable to a loss on "rental investing". That loss related to a property apparently co-owned by the Plaintiff and her husband at 1637 Botany Road, Botany. For the year ended 30 June 2012 the Plaintiff had a net taxable income of $27,835 which comprised distribution from partnership or trusts of $13,491, superannuation payments of $18,380, and a share of loss on rental property of $4,046 with respect to the Botany property. A working sheet attached to the Return suggests that the Plaintiff's taxable income for the year was zero dollars. 2. For the year ending 30 June 2013 the Plaintiff had a taxable income of $1,760. That was arrived at after a loss of $9,655 on a rental property. A worksheet with respect to the year suggests the Plaintiff's income was "zero" dollars. 3. For the year ending 30 June 2014 the Plaintiff had a taxable income of $109,669. That sum was attributable to the Plaintiff's share of a taxable capital gain on the realisation of the Botany property of $102,142, together with a distribution from partnership and trusts of $12,556. The worksheet attached to the Tax Return suggested an estimate of tax payable of $29,949.60. 4. The Plaintiff's Tax Return for the year ended 30 June 2015 revealed a taxable income of $124,651. That was largely referable to the Plaintiff's share of a taxable capital gain of $132,445. The worksheet attached to the Return recorded an estimate of tax payable of $36,560.85. 5. The Plaintiff's Tax Return for the year ended 30 June 2016 recorded a taxable loss of $1,561. Included in that was a loss of $2,530 with respect to the Plaintiff's property at 24 Conrads Road, Mount Warrigal. 6. The Plaintiff's Tax Return for the year ended 30 June 2017 recorded a loss of $8,196. That was largely referable to a loss of $7,884 with respect to the Plaintiff's rental property. 7. The Plaintiff's Tax Return for the year ending 30 June 2018 showed a loss of $10,315, $9,875 of which was referable to the loss on the Plaintiff's rental property at 24 Conrads Road, Mount Warrigal. The Plaintiff's property at 102 Shellharbour Road, Warilla, revealed a net profit of $2,613. 8. The Plaintiff's Tax Return for the year ending 30 June 2019 recorded a taxable income of $2,277. That represented the net rent from the Plaintiff's investment properties of approximately $23,000 less losses carried forward from earlier years. 9. The Plaintiff's Tax Return for the year ending 30 June 2020 revealed a taxable income of $51,330. That comprised net rent from investment properties of $24,894 and a taxable net capital gain of $27,030. To what the latter referred is unclear. The rental property schedule attached to the Tax Returns showed net rent of $24,894 in total for the Plaintiff's two investment properties. 10. The Plaintiff's Tax Return for the year ending 30 June 2021 showed taxable income of $15,056. That comprised $15,648 net income from the Plaintiff's property at 102 Shellharbour Road, Warilla. By that time the Plaintiff had sold the property at 24 Conrads Road. 11. The Plaintiff's Tax Return for the year ending 30 June 2022 showed a loss of $131. Not insignificantly the Return recorded that the Plaintiff had "net capital losses carried forward to later income years" of $46,453. To what extent that is referable to the realisation of 24 Conrads Road is unclear. 1. The Plaintiff's tax returns provide no support for her claims. The plaintiff's failure to reveal her current financial position, or details of the quantum and fate of the proceeds of sale of her rental properties deprive her of the opportunity to prove that she suffered, or will suffer loss as a result of their sales. The Plaintiff has not established that she was forced to sell either property because her injuries forced her to. 2. The Plaintiff was cross-examined on Tax Returns with respect to historical losses from her rental properties up until 2019. By 2021 the Shellharbour Road property was generating a taxable profit of $15,648. Whilst the Plaintiff lost the modest rental income which the properties reportedly generated, apart from the fact that the Court does not accept that the Plaintiff sold them other than for commercial reasons. The Plaintiff's failure to give any evidence with respect to the quantum of the proceeds of sale, or what became of them precludes her successfully contending that she suffered, and will continue to suffer, any financial loss by way of lost income as a result of their sale. 3. For the foregoing reasons, the Plaintiff has failed to prove any aspect of her claims for economic loss. Plaintiff's past out-of-pocket expenses 1. The Plaintiff tendered a document, based on appropriate source documents, evidencing the payment of $9,580 with respect to psychological or psychiatric consultations and hospital attendances between 26 June 2020 and 28 September 2023. To the extent that there is any controversy with respect to those sums, the Court is satisfied that the evidence establishes that the Plaintiff incurred those expenses. Although involving an evaluative determination which lacks demonstrable precision, having regard to the Court's findings with respect to the factors informing the assessment of the Plaintiff's damages, apportioning those expenses on the basis that the Defendant should be liable for one half of them would be reasonable. So doing recognises the findings with respect to the Plaintiff's pre-disposition to suffer injury of the gravity and for as long as she did, and the aggravating and prolonging impact of the August 2020 attack on her. The appropriate figure is thus $4,790. 2. The Plaintiff claimed future medical and other treatment expenses of $91,845. That was calculated on the basis of $3,240 per annum for psychological consultations, $1,600 per annum for psychiatric consultations, $3,000 per annum for medication, a total of $7,840 per annum. Those figures have an evidentiary foundation. The two issues requiring determination are the likely duration of those expenses and, related thereto, the liability of the Defendant with respect to them. 3. On the evidence of the Plaintiff's medico-legal expert, her condition is likely to resolve by the end of 2024. The Plaintiff's calculations assume that she will incur those medical and other treatment expenses for approximately 16 years. The evidence does not support a finding in those terms. Allowing a "buffer" of $10,000 for future medical and other treatment expenses would be a reasonable, if potentially slightly generous, allowance. The figure ignores any Medicare, health fund or other reductions in the amount which the Plaintiff will actually pay. For the reasons recorded above, and accepting that so finding lacks demonstrable precision, the Defendant should be liable 50% of that sum. The appropriate figure is thus $5,000. Conclusion 1. The Plaintiff will be awarded general damages in the sum of $50,000, aggravated damages in the sum of $5,000 and exemplary damages in the sum of $15,000, a total of $70,000, together with past out-of-pocket expenses of $4,790 and future out-of-pocket expenses of $5,000. There will be a verdict and judgment for the Plaintiff in the sum of $79,790. Interest 1. The question of pre-judgment interest remains to be determined. Although, having regard to the outcome of the Plaintiff's claims, and the Court's findings with respect to the various issues raised in the proceedings, it is disinclined to award pre-judgment interest, if that remains controversial, the parties may make brief written submissions with respect to the issue. Costs 1. The Court will order that the Defendant pay the Plaintiff's costs as agreed or assessed on the ordinary basis, and order that a party seeking a different order file and serve written submissions in support of such relief, and that a party resisting such an application file and serve written submissions in opposition to the granting of such relief. Orders 1. I make orders as follows: 1. Verdict and judgment for the Plaintiff in the sum of $79,790. 2. Defer the entry of judgment for the purpose of allowing the parties time to consider any claim for pre-judgment interest. 3. Within 3 days of today's date, the plaintiff is to notify the defendant and my Associate, in the form of written submissions not exceeding 5 pages, of any claim for interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW). In the event no such notification is received, judgment will be entered for the sum stipulated in order (1) above. 4. Upon receipt of the plaintiff's notification in order (3) above, the defendant has 3 days to notify the plaintiff and my Associate as to whether there is agreement concerning pre-judgment interest calculation. In the event agreement can be reached, judgment is to be entered inclusive of interest. 5. In the event the plaintiff's pre-judgment interest calculation is opposed, the defendant is to notify the plaintiff and my Associate of their objection, in the form of written submissions not exceeding 5 pages. Questions of pre-judgment interest will be determined on the papers, and judgment will be entered following any such determination. 6. The Defendant pay the Plaintiff's costs as agreed or assessed on the ordinary basis. 7. A party seeking to vary the costs order in order (6) above ("the costs applicant") is to file a notice of motion pursuant to r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW). 8. In addition to order (7) above, the costs applicant is to: 1. notify my Associate of the filing of the notice of motion, and to seek a return date from chambers; and 2. file and serve written submissions on costs not exceeding 7 pages in length in support within 7 days of the filing of their notice of motion. 1. Upon receipt of the costs applicant's submissions, the costs respondent has 7 days to file and serve written submissions not exceeding 7 pages in length in support of such opposition. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 April 2024