NICHOLAS PETER CHATTAWAY v PATRICK DUNN-LAWLESS In Person [2026] SADC 27

Applicant: NICHOLAS PETER CHATTAWAY Counsel: MR S OWER KC AND MR J MARCUS - Solicitor: GROPE HAMILTON LAWYERS First Respondent: JACK STEPHEN LLOYD No Attendance Second Respondent: PATRICK DUNN-LAWLESS In Person Counsel: MR S HURBURGH FROM 30/07/24 - Solicitor: ROSEY BATT & ASSOCIATES FROM 04/06/24 Third Respondent: MEGAN DANSIE Counsel: MR A LINDSAY SC AND MR N SWAN - Solicitor: HWL EBSWORTH LAWYERS Fourth Respondent: TONY STANKIEWICZ Counsel: MR A LINDSAY SC AND MR N SWAN - Solicitor: HWL EBSWORTH LAWYERS Hearing Date/s: 14/03/2023 to 16/03/2023, 20/03/2023 to 24/03/2023, 27/03/2023 to 31/03/2023, 07/12/2023 to 08/12/2023, 12/12/2023 to 13/12/2023, 05/02/2024 to 08/02/2024, 13/02/2024, 05/03/2024 to 07/03/2024, 01/05/2024 to 02/05/2024, 30/07/2024 to 31/07/2024, 26/08/2024 File No/s: DCCIV-14-135 B DISTRICT COURT OF SOUTH AUSTRALIA (Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment 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 in which it was generated. CHATTAWAY v LLOYD & ORS [2026] SADC 27 Judgment of her Honour Judge Schammer 27 March 2026 TORTS - INTERFERENCE WITH THE PERSON - TRESPASS TO THE PERSON - WHAT CONSTITUTES GENERALLY: ASSAULT AND/OR BATTERY TORTS - NEGLIGENCE - DUTY OF CARE: EXISTENCE - FACTORS DETERMINING EXISTENCE OF DUTY - OTHER FACTORS - EXISTENCE OF CATEGORY OF RELATIONSHIP TORTS - NEGLIGENCE - DAMAGE AND CAUSATION - CAUSATION - UNDER CIVIL LIABILITY LEGISLATION TORTS - NEGLIGENCE - DAMAGE AND CAUSATION - CAUSATION - AT COMMON LAW TORTS - NEGLIGENCE - STANDARD OF CARE, SCOPE OF DUTY AND SUBSEQUENT BREACH The applicant, Nicholas Chattaway, by his litigation guardian, claims damages for personal injuries allegedly sustained by him at an 18th birthday party on Sunday 5 December 2010 (the party). -- 1 of 496 -- The party was hosted by Ms Dansie and Mr Stankiewicz (the third and fourth respondents) at their home in Clarence Gardens (the premises). The applicant alleges he was the victim of an unprovoked assault during the party (the incident) and specifically that he was hit in the face with bottles by Jack Lloyd (the first respondent) and Patrick Dunn-Lawless (the second respondent). The claims against the first and second respondents are by way of assault and battery and/or, in the alternative, in negligence. Although criminal charges were laid against the first and second respondents after the incident, those charges were ultimately not proceeded with. The claims against the third and fourth respondents are in negligence. It is alleged that the third and fourth respondents were negligent in that they could have taken, but did not take, reasonable and simple precautions, which would have prevented the incident from occurring. The proceedings were issued in 2014 and have a long and chequered procedural history. The action finally proceeded to trial on two separate issues (liability and causation) in March 2023, after the start of the trial was deferred due to a deterioration in the applicant’s already fragile mental health. The trial then proceeded over an extended and truncated period, finally concluding in late August 2024. The trial proceeded only on the issues of liability and causation. The first respondent has never appeared in answer to the Summons and did not participate in the trial. The second respondent admits being involved in the incident but denies that either he or the first respondent struck the applicant with a bottle or bottles. The second respondent maintains that he was acting in self-defence (either of himself and/or the first respondent) when he punched the applicant in the face during the incident. The third and fourth respondents deny that they owed the applicant a duty of care of the type as claimed by the applicant. In the alternative, they deny that they breached any duty of care owed to the applicant. They claim that the party proceeded in an unremarkable and peaceful manner and that the incident arose suddenly and spontaneously. If they were negligent, they deny their negligence was a necessary condition of any harm caused to the applicant. There is no dispute that as a result of the incident, the applicant suffered facial fractures to the nose and orbit, albeit the precise mechanism by which he sustained those injuries is in dispute. The applicant subsequently required facial reconstruction surgery undertaken by Professor David David (Prof David) and claims to suffer some ongoing symptoms arising from those fractures, including disfigurement and a partial loss of peripheral vision, taste and smell. The applicant also alleges that as a result of the incident he suffered psychological injuries including Post-Traumatic Stress Disorder (PTSD) and schizophrenia. There is no dispute that the applicant now suffers from schizophrenia. However, the respondents deny that the incident caused the applicant’s schizophrenia, and they further deny that the applicant suffered PTSD as a result of the incident. The issue as to whether the incident caused the applicant to suffer schizophrenia (and/or PTSD) was referred to at trial as the ‘Medical Causation’ issue. The incident occurred shortly after the applicant completed Year 12. He was still 17 at the time of the incident but turned 18 on 1 February 2011. Although the applicant successfully completed Year 12, his school reports demonstrated that he had struggled at school, both behaviourally and academically. As a child, the applicant was diagnosed with ADHD (for which he was prescribed Ritalin), dyslexia and dyspraxia. He was referred to various specialists to address both learning and behavioural difficulties, including concerns relating to his aggressive behaviour. He undertook neuropsychological testing which demonstrated some cognitive deficits thought to be frontal in origin. At the completion of his Year 12 studies, the applicant was offered and accepted a place to study a course in Construction Management at UniSA. Instead of commencing that course, in early March 2011, the applicant travelled to China, by himself, to study in Xi’an. The applicant’s case was that -- 2 of 496 -- the decision to study in China, rather than stay in Adelaide, was prompted by the emotional trauma sustained by him in the incident. There is no documentary evidence relating to what occurred while the applicant was in China. The applicant gave evidence at trial wherein he described dropping out of his studies within one to two months of his arrival and spending his time drinking and partying. He described periods when he was ‘homeless’ (and/or couch surfing) when he was no longer able to live at his university accommodation. The applicant returned to Adelaide from China on 26 December 2011, at which time his parents claimed to notice a significant change in him. Instead of starting his UniSA course, the applicant commenced a TAFE course in February 2012 but was unable to complete it. On 16 April 2012, the applicant consulted a general practitioner with respect to mental health issues for the first time, since the incident. At that time he sought a referral to a psychiatrist. Dr Rowe, Psychiatrist, first saw the applicant on 27 April 2012, at which time he took a history which included details of the incident. Dr Rowe diagnosed the applicant as suffering an Adjustment Disorder with a mixture of depression and anxiety. On 17 May 2012, Dr Rowe conducted a targeted assessment structured to determine whether the applicant met the diagnostic criteria for PTSD and determined he did not meet that criteria. Thereafter, the applicant’s mental health deteriorated. In October 2012, the applicant was admitted to the RAH after an episode of severe psychosis, at which time the principal diagnosis was ‘First Episode Psychosis’ with ‘likely schizophrenia’. The applicant required further hospitalisation relating to his deteriorating mental health in July 2013 (at which time the principal diagnosis was schizophrenia) and again in September 2013. In October 2014, the applicant stabbed his parents multiple times during a frenzied attack at their family home. Thereafter, he was detained at James Nash House and charged with two counts of attempted murder. On 16 December 2016, the Supreme Court found the applicant mentally incompetent to have committed the offences but imposed a supervision order with a limiting term of 10 years. In June 2019, after serving some of that limiting term at James Nash House and some at Yatala Labour Prison, the applicant applied to be transferred from Australia to the United Kingdom (UK). On 12 September 2022, the applicant was transferred to the UK, where he was initially detained at Farmfield Hospital (Farmfield). He subsequently applied for, and was granted, permission to give his evidence at trial by audio-visual link. The applicant’s mental health deteriorated in January 2023, shortly prior to the trial, necessitating an adjournment of the trial. Thereafter, he was transferred to the Broadmoor Hospital (Broadmoor), where he remained detained throughout the trial. The applicant gave his evidence at trial via audio- visual link during two separate periods. There is a dispute as to whether, and if so, to what extent, the applicant’s mental health issues and/or medication impacted on the reliability of his evidence. As to the ‘Medical Causation’ issue, the applicant relied upon expert evidence from Professor A McFarlane (Prof McFarlane), Psychiatrist, who first saw the applicant in June 2018. Prof McFarlane expressed the opinion that the applicant developed PTSD following the incident. Prof McFarlane hypothesised that as the applicant had some vulnerability to schizophrenia, the incident caused him to suffer a trauma response (whether that be PTSD or some other psychological trauma). This trauma response resulted in the dysregulation of neurological pathways and activated some of the genes implicated in schizophrenia, leading to the onset of schizophrenia (causation hypothesis). Prof McFarlane gave evidence that this hypothesis was supported by research in the area. The applicant relied on the causation hypothesis to establish a causal link between the incident and the applicant's subsequent development of schizophrenia. The respondents relied on the expert evidence of Professor Olav Nielssen, Psychiatrist (supported, in part, by Dr David Kutlaca, a Psychiatrist retained by the applicant). The respondents denied that there was any causal link between the incident and the applicant’s schizophrenia and/or that the -- 3 of 496 -- applicant suffered PTSD following the incident. The respondents’ case was that the research did not support any alleged causal link between trauma and schizophrenia and maintained that the applicant was on an inevitable course to schizophrenia, irrespective of the incident. Findings – as to Liability: 1. The incident occurred in the absence of there being any prior hostile verbal or physical altercation between the applicant and the first and/or second respondents, in circumstances where they were not otherwise acquaintances, prior to the party. 2. The incident occurred spontaneously, in the context of what was an otherwise calm and peaceful party. The hosts supplied food, water and soft drinks but did not supply alcohol to the young guests. It was a ‘BYO’ party. There were four adults in attendance at the premises at all material times, providing an appropriate level of supervision. 3. Alcohol was consumed by the young guests at the party, including the applicant and the first and second respondents. The applicant was intoxicated at the time of the incident, with a likely blood alcohol concentration of approximately 0.145%. There is insufficient evidence for a finding that either the first or second respondents were intoxicated at the time of the incident. 4. The incident occurred after the applicant was pushed by the first respondent when they were both urinating at the bushes at the back fence of the premises. 5. The second respondent only entered the fray in response to seeing the applicant punch the first respondent. 6. At no time did either the first and/or second respondents hit the applicant with a bottle or bottles during the incident. 7. The second respondent punched the applicant in the face during the incident, at which time he was acting in self-defence. The applicant was also punched in the face by the first respondent. 8. The third and fourth respondents did not owe a duty of care to the applicant to prevent the incident from occurring. If there was any such duty, it was not breached by the third and fourth respondents. If there was any such breach, that breach of duty did not cause the harm suffered by the applicant, being harm sustained as a result of a spontaneous fight which could not have been reasonably predicted in the circumstances of the party. 9. The applicant suffered facial fractures in the incident and required facial reconstruction surgery. He experienced some double vision after the incident, with some ongoing restriction in upward gaze and partial loss of the sense of smell. 10. The applicant did not develop PTSD after the incident. 11. The applicant developed high risk prodromal symptoms of schizophrenia in or about August 2012 and since early 2013 has suffered from treatment resistant schizophrenia. 12. Prof McFarlane’s causation hypothesis is not supported by the research, which, at its highest, shows that there is a modest association only between trauma and schizophrenia, insufficient to meet the legal definition of causation, having regard to the Bradford-Hill criteria. 13. The applicant has not proved, on the balance of probabilities, that his schizophrenia was caused by the acts or omissions of any of the respondents. Orders: 1. The claims against the second, third and fourth respondents are dismissed. 2. I will hear the parties as to costs and any further orders to be made. -- 4 of 496 -- Uniform Civil Rules 2020 (SA) r 151,1; International Transfer of Prisoners (South Australia) Act 1998 (SA) ; Evidence Act 1929 (SA) ss 28, 34C, 53, 53(1), 53(1)(b); Civil Liability Act 1936 (SA) ss 20, 31(1), 32, 34, 34(1), 34(1)(a); Criminal Law Consolidation Act 1935 (SA) ss 15(1), 20(4), 24(1)(b), referred to. Chattaway v Lloyd and Ors [2021] SADC 141; Chattaway v Lloyd and Ors [2022] SADC 152; Chattaway v Lloyd and Ors [2023] SADC 72; Smith v Leurs (1945) 70 CLR 256; Modbury Triangle Shopping Centre v Anzil (2000) 205 CLR 254; Ryan and Ryan v Dearden and Taylor [2023] QCA 20; Parissis & Ors v Bourke [2004] NSWCA 373; Bragg v RSL [2008] SADC 130; Briginshaw v Briginshaw (1938) 60 CLR 336; Toohey v Metropolitan Police Commissioner [1965] AC 595; Bromley v The King [2023] HCA 42; Schumann v Abbott and Davis [1961] SASR 149; Hodge v .Barham [2011] WADC 71; Merck Sharpe and Dohme (Australia) Pty Ltd v Peterson [2011] FCAFC 128; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; McNickle v Huntsman Chemical Company Australia Pty Ltd [2024] FCA 807; Jones v Dunkel (1959) 101 CLR 298; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; Ho v Powell (2001) 51 NSWLR 572; Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) (2006) 229 ALR 136; West v Government Insurance Office (NSW) (1981) 148 CLR 62; Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389; HIA Insurance Services Pty Ltd v Davy (2003) 7 VR 512; Ta Ho Ma Pty Ltd v Allen (1999) 47 NSWLR 1; Brandi v Mingot (1976) 12 ALR 551; SGIC v Laube (1984) 37 SASR 31; Nominal Defendant v Owens (1978) 22 ALR 128; R v Trabolsi (2018) 131 SASR 297; NOM v Director of Public Prosecutions (2012) 38 VR 618; Crossley v State of South Australia [2020] SADC 14; Cowell v Corrective Services Commission of NSW (1988) 13 NSWLR 714; White & Ors v State of South Australia (2010) 106 SASR 521; Croucher v Cachia (2016) 95 NSWLR 117; Walker v Hamm [2008] VSC 596; Pearce v Hallett [1969] SASR 413; Saler v Klingbiel (1945) SASR 171; Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645; State of New South Wales v McMaster [2015] NSWCA 228; Morgan v Colman (1981) 27 SASR 334; Watkins v State of Victoria & Ors (2010) 27 VR 543; Dorset Yacht Co Ltd v Home Office [1970] AC 1004; Hodge v Barham [2011] WADC 71; Smith v Littlewoods Organisation Ltd [1987] AC 241; Bragg v Returned and Services League Henley & Grange Sub-Branch Inc [2003] SASC 226; Wyong Shire Council v Shirt (1980) 146 CLR 40; Clare & Gilbert Valleys Council v Kruse [2019] SASCFC 106; Wallace v Kam (2013) 250 CLR 375; Tabet v Gett (2010) 240 CLR 537; March v E &MH Stramare (1991) 171 CLR 506; Amaca v Booth Pty Ltd (2011) 246 CLR 36, considered. -- 5 of 496 -- -- 6 of 496 -- CHATTAWAY v LLOYD & ORS [2026] SADC 27 Contents Introduction........................................................................................................ 12 Causes of action.................................................................................................. 13 First respondent’s absence ................................................................................ 14 Primary issues in dispute .................................................................................. 15 Procedural background/delays ......................................................................... 16 Witnesses ............................................................................................................ 19 Other preliminary matters ................................................................................ 22 The Applicant – Pre-Incident ........................................................................... 23 Family background ......................................................................................... 23 School in the UK.............................................................................................. 24 Preparatory school in Adelaide (2002-2005) .................................................. 25 Secondary school (2006-2010) ........................................................................ 30 ADHD? ......................................................................................................... 30 School reports/detention reports ................................................................... 32 Extra-curricular activities ............................................................................ 46 Medical/health issues ...................................................................................... 48 Relationships.................................................................................................... 49 Alcohol/drug use.............................................................................................. 50 Mental health ................................................................................................... 53 The Party ............................................................................................................ 53 Uncontroversial matters .................................................................................. 53 Invitation/guest list........................................................................................ 53 Party details .................................................................................................. 55 Party set up ................................................................................................... 55 The applicant - Nicholas Chattaway ............................................................... 57 How did he come to be at the party? ............................................................ 57 Conversation about uninvited guests ............................................................ 59 Alcohol use by party guests........................................................................... 62 What were the adults doing?......................................................................... 63 General party atmosphere ............................................................................ 65 Lighting ......................................................................................................... 65 -- 7 of 496 -- [2026] SADC 27 2 The incident ................................................................................................... 66 What happened thereafter? ........................................................................... 70 Dechlan Heames .............................................................................................. 71 The party – general observations ................................................................. 71 Party atmosphere/numbers/lighting.............................................................. 71 The incident ................................................................................................... 73 Nicholas Eckert ............................................................................................... 74 The party – general observations ................................................................. 74 The incident ................................................................................................... 75 Mrs Chattaway ................................................................................................. 76 The party – general observations ................................................................. 76 The immediate aftermath of the incident ...................................................... 76 Applicant’s discharge from hospital ............................................................. 79 Second respondent – Patrick Dunn-Lawless .................................................. 80 General ......................................................................................................... 80 The party – general observations ................................................................. 81 Lighting ......................................................................................................... 83 His/Lloyd’s alcohol consumption.................................................................. 84 Conversation about uninvited guests ............................................................ 84 Observations of the applicant during the party ............................................ 85 Atmosphere at the party before the incident ................................................. 86 The incident ................................................................................................... 86 What happened thereafter? ........................................................................... 91 Jordana McCallum.......................................................................................... 94 General ......................................................................................................... 94 The party – general observations ................................................................. 94 Lighting ......................................................................................................... 95 Alcohol consumption ..................................................................................... 95 Atmosphere at the party before the incident ................................................. 96 The incident ................................................................................................... 96 What happened thereafter? ........................................................................... 98 Third respondent – Megan Dansie ................................................................. 99 Party organisation ........................................................................................ 99 Party preparations ...................................................................................... 100 Lighting ....................................................................................................... 101 -- 8 of 496 -- [2026] SADC 27 3 The party – general observations ............................................................... 102 Conversation about uninvited guests .......................................................... 103 The incident ................................................................................................. 104 Fourth respondent –Tony Stankiewicz ......................................................... 107 Party preparations ...................................................................................... 107 Lighting ....................................................................................................... 108 The party – general observations ............................................................... 109 Alcohol consumption ................................................................................... 111 Conversation about uninvited guests .......................................................... 113 The incident ................................................................................................. 113 After the party ............................................................................................. 115 Owen Stankiewicz (Owen) ............................................................................. 115 General ....................................................................................................... 115 Relationship with the applicant .................................................................. 116 Relationship with Lloyd and Dunn-Lawless ............................................... 118 Party organisation ...................................................................................... 119 Party preparations ...................................................................................... 119 Guests arrive at the party ........................................................................... 120 Conversation about uninvited guests .......................................................... 120 Conversation with his mother about uninvited guests ................................ 124 Alcohol consumption ................................................................................... 124 General party atmosphere .......................................................................... 126 The incident ................................................................................................. 127 After the party ............................................................................................. 133 Tim Allan ....................................................................................................... 135 General ....................................................................................................... 135 The party – general observations ............................................................... 135 The incident ................................................................................................. 137 Keryn Allan .................................................................................................... 138 The party – general observations ............................................................... 138 The incident ................................................................................................. 139 Eleanor Stankiewicz ...................................................................................... 139 General ....................................................................................................... 139 The party – general observations ............................................................... 139 Parties at the premises – general practice.................................................. 140 -- 9 of 496 -- [2026] SADC 27 4 Marcel Blanch-De Wilt ................................................................................. 141 General ....................................................................................................... 141 The party – general observations ............................................................... 141 The Applicant’s physical injuries ................................................................... 142 Applicant’s evidence ...................................................................................... 142 Ambulance records ........................................................................................ 143 RAH – Emergency Department records ....................................................... 144 RAH – admission records .............................................................................. 145 Assessment at RAH Eye Clinic ..................................................................... 146 Surgery with Prof David – 13 December 2010 ............................................. 146 Independent evidence – bottles and/or fists?................................................. 147 Prof David ...................................................................................................... 147 A/Prof Pennington......................................................................................... 149 Alcohol – Prof White ....................................................................................... 152 Police Investigation of incident ....................................................................... 154 Police attendance at the party ....................................................................... 154 Police report made by applicant .................................................................... 154 Investigating officer – Nick Pipinias ............................................................ 154 Outcome of investigation ............................................................................... 155 Post incident – December 2010 to February 2011 ........................................ 156 Applicant’s evidence ...................................................................................... 156 Mrs Chattaway’s evidence ............................................................................. 157 Mr Chattaway’s evidence .............................................................................. 159 Medical evidence ........................................................................................... 162 Applicant in China – March to December 2011 ........................................... 163 Applicant’s evidence ...................................................................................... 163 Mrs Chattaway’s evidence ............................................................................. 167 Mr Chattaway’s evidence .............................................................................. 169 Applicant returns from China – January to March 2012 ............................ 170 Applicant’s evidence ...................................................................................... 170 Mrs Chattaway’s evidence ............................................................................. 171 Mr Chattaway’s evidence .............................................................................. 172 Medical evidence ........................................................................................... 173 Double vision .............................................................................................. 173 Weight loss .................................................................................................. 173 -- 10 of 496 -- [2026] SADC 27 5 ADHD ......................................................................................................... 173 Mental health issues .................................................................................... 174 April 2012 to early 2013 .................................................................................. 174 Applicant’s evidence ...................................................................................... 174 Mrs Chattaway’s evidence ............................................................................. 177 Mr Chattaway’s evidence .............................................................................. 178 Dr Watson ...................................................................................................... 179 Dr Rowe ......................................................................................................... 179 Dr Jasoria ...................................................................................................... 184 CT head – 11 June 2012 ................................................................................ 188 RAH - October 2012 (first psychiatric admission) ....................................... 188 Southern Adelaide Local Health Network (Carramar Clinic) .................... 191 Early 2013 to October 2014 ............................................................................ 191 Applicant’s evidence ...................................................................................... 191 Mrs Chattaway’s evidence ............................................................................. 192 Mr Chattaway’s evidence .............................................................................. 194 Flinders Medical Centre - July 2013 (second psychiatric admission) ........ 195 Margaret Tobin Centre - September 2013 (third psychiatric admission).... 196 Southern Adelaide Local Health Network (Carramar Clinic) .................... 196 Other incidents/accidents – 2012-2014........................................................... 197 Incident outside Government House, Adelaide – 11 August 2012 .............. 197 Motor Vehicle Accident – 28 September 2012.............................................. 197 Fall -1 October 2012 ...................................................................................... 197 Assault – 14/15 November 2013 .................................................................... 198 Motor Vehicle Accident - November 2013 .................................................... 198 Fall – 14 March 2014 .................................................................................... 198 Independent medical evidence ........................................................................ 198 Dr Kutlaca...................................................................................................... 198 Prof McFarlane ............................................................................................. 205 Introduction................................................................................................. 205 First report – 28 September 2018 ............................................................... 206 Second report – 3 February 2021 ............................................................... 210 Third report – 5 September 2023 ................................................................ 210 Pre-incident vulnerability ........................................................................... 210 Causation hypothesis .................................................................................. 211 -- 11 of 496 -- [2026] SADC 27 6 PTSD ........................................................................................................... 215 Prof Nielssen.................................................................................................. 218 Introduction................................................................................................. 218 First report – 15 May 2019 ......................................................................... 218 Second report – 21 June 2022 .................................................................... 221 Third report – 22 October 2023.................................................................. 223 Prof McFarlane’s causation hypothesis ..................................................... 224 PTSD ........................................................................................................... 228 Prof McFarlane’s criticism of Prof Nielssen ............................................... 229 Medical literature/research papers ................................................................ 229 Preliminary observations............................................................................... 229 Articles relied upon by Prof McFarlane ....................................................... 230 Chen (and ors) – Incidence Trajectories of Psychiatric Disorders after Assault, Injury and Bereavement (Chen’s study) ........................................ 230 Fusar-Poli (and ors) – Lessons learned from the psychosis high-risk state: towards a general staging model of prodromal intervention (Fusar-Poli’s study) ........................................................................................................... 230 Shevlin (and ors) – Cumulative Traumas and Psychosis: an Analysis of the national Comorbidity Survey and the British Psychiatry Morbidity Survey (Shevlin’s study) .......................................................................................... 231 Varese (and ors) – Childhood Adversities Increase the Risk of Psychosis: A Meta-analysis of Patient – Control, Prospective and Cross-sectional cohort studies (Varese’s study) .............................................................................. 233 Okkels (and ors) – Traumatic Stress Disorders and Risk of Subsequent Schizophrenia Spectrum Disorder or Bipolar Disorder: A Nationwide Cohort Study (Okkels’ study) .................................................................................. 233 Articles relied upon by Prof Nielssen ........................................................... 234 Radua (and ors) – What causes psychosis? An umbrella review of risk and protective factors (Radua’s study) .............................................................. 234 Davis (and Ors)- Can mental health diagnoses in administrative data be used for research? A systemic review of the accuracy of routinely collected diagnoses (Davis’s study) ........................................................................... 235 Jongsma (and Ors)- International incidence of psychotic disorders, 2002-17: a systemic review and meta-analysis (Jongsma’s study) ............................ 235 Large and Nielssen – Improving the Reliability of the Diagnosis of Post- Traumatic Stress Disorder in Civil Litigation ............................................ 236 Saha (and ors) – A Systemic Review of the Prevalence of Schizophrenia (Saha’s study).............................................................................................. 236 -- 12 of 496 -- [2026] SADC 27 7 Howes (and ors) – Neuroimaging in schizophrenia: an overview of findings and their implications for synaptic changes (Howes’ study) ...................... 236 Jauhar (and ors) – Schizophrenia (Jauhar’s study) ................................... 237 Nielssen and Dwyer – Substance Induced Psychosis and Bradford-Hill Criteria for Causation................................................................................. 238 Tandon (and ors) – The schizophrenia syndrome, circa 2024: What we know and how that informs its nature (Tandon’s study) ...................................... 238 Applicant’s mental health at the time of trial ............................................... 240 Preliminary observations............................................................................... 240 Medical evidence ........................................................................................... 242 Farmfield Hospital records......................................................................... 242 Broadmoor Hospital records ...................................................................... 244 Other medical evidence............................................................................... 248 Applicant’s evidence ...................................................................................... 251 Closing submissions of the applicant ............................................................. 252 General ........................................................................................................... 252 Applicant’s reliability .................................................................................... 253 Applicant gave evidence via AVL from Broadmoor.................................... 253 Impact of mental illness on reliability ........................................................ 253 Impact of trauma on presentation ............................................................... 255 Potential inconsistencies ............................................................................. 255 Consistency of account ............................................................................... 255 Factual findings as to the party and the incident ......................................... 256 Owen’s evidence ............................................................................................ 257 Expert evidence – bottle/s or fist/s?............................................................... 258 Dunn-Lawless’ evidence ............................................................................... 259 Ms McCallum’s evidence .............................................................................. 259 Other lay evidence ......................................................................................... 260 Liability of the second respondent ................................................................ 261 Liability of the third and fourth respondents ............................................... 262 Medical causation.......................................................................................... 265 Closing submissions of the second respondent .............................................. 269 General ........................................................................................................... 269 Factual findings – the incident ..................................................................... 269 Why the applicant’s evidence should be rejected ......................................... 270 -- 13 of 496 -- [2026] SADC 27 8 General ....................................................................................................... 270 Out of court statements ............................................................................... 271 Internal inconsistencies in evidence ........................................................... 272 Evidence inconsistent with objective evidence............................................ 272 Evidence inconsistent with contemporaneous evidence.............................. 273 Evidence not supported by the expert evidence .......................................... 274 Owen’s evidence/police statement ................................................................. 275 Why Dunn-Lawless’ evidence should be accepted ....................................... 275 Why Ms McCallum’s evidence should be accepted...................................... 276 Self-defence.................................................................................................... 277 Medical causation.......................................................................................... 278 Closing submissions of the third and fourth respondents ............................ 278 General ........................................................................................................... 278 Summary ........................................................................................................ 278 Applicant’s reliability .................................................................................... 279 Evidence as to the party/incident .................................................................. 281 Applicant’s evidence ................................................................................... 281 Ms McCallum’s evidence ............................................................................ 283 Lay evidence consistent as to circumstances of party ................................ 283 Owen’s evidence ......................................................................................... 284 Dunn-Lawless’ evidence ............................................................................. 285 Mechanism of the incident ............................................................................ 285 Findings of fact - party organisation ............................................................ 286 No duty ........................................................................................................... 287 Conclusion as to liability ............................................................................... 290 Medical causation.......................................................................................... 290 Summary ..................................................................................................... 290 Schizophrenia .............................................................................................. 291 Applicant’s vulnerability ............................................................................. 291 Course of the illness .................................................................................... 292 PTSD ........................................................................................................... 294 Trauma falling short of PTSD..................................................................... 295 Prof McFarlane’s hypothesis ...................................................................... 295 Conclusion .................................................................................................. 297 Analysis of the evidence................................................................................... 298 -- 14 of 496 -- [2026] SADC 27 9 Preliminary observations............................................................................... 298 Jones v Dunkel .............................................................................................. 299 Missing witnesses ........................................................................................ 299 General principles ...................................................................................... 299 Lay witnesses .............................................................................................. 300 Expert witnesses .......................................................................................... 303 Impact of mental health issues on the applicant’s evidence ........................ 304 Special arrangements.................................................................................. 304 Applicant’s presentation ............................................................................. 306 Farmfield and Broadmoor Hospital records .............................................. 307 Expert evidence on this issue ...................................................................... 308 Conclusion .................................................................................................. 309 Expert evidence – applicant’s level of intoxication at time of incident ....... 310 Expert evidence – bottles or fists? ................................................................. 311 Mr and Mrs Chattaway ................................................................................. 314 General observations .................................................................................. 314 Analysis – Mrs Chattaway’s evidence - liability......................................... 315 Analysis – Mr and Mrs Chattaway’s evidence - causation......................... 317 Dechlan Heames and Nicholas Eckert ......................................................... 322 Tim and Keryn Allan ..................................................................................... 324 Eleanor Stankiewicz (Eleanor) and Marcel Blanch-De Wilt (Marcel) ....... 326 Ms Dansie ...................................................................................................... 327 Mr Tony Stankiewicz ..................................................................................... 334 Owen Stankiewicz .......................................................................................... 336 Ms McCallum ................................................................................................ 346 Dunn-Lawless ................................................................................................ 354 The applicant ................................................................................................. 361 General observations/summary .................................................................. 361 Reliance on police statements ..................................................................... 364 Internal inconsistencies in the evidence ..................................................... 365 Inconsistencies with other evidence ............................................................ 367 Inconsistencies with out of court statements ............................................... 373 Inconsistencies – possible explanations...................................................... 378 Expert evidence – consistency/inconsistency .............................................. 378 Summary ..................................................................................................... 381 -- 15 of 496 -- [2026] SADC 27 10 Findings of fact - Liability ............................................................................... 381 Standard of proof........................................................................................... 381 The party ........................................................................................................ 384 Time/date..................................................................................................... 384 Food/alcohol - generally............................................................................. 384 Guest list ..................................................................................................... 385 Party set up ................................................................................................. 386 Older adult supervision............................................................................... 387 Lighting ....................................................................................................... 388 Lines of sight/visibility throughout the backyard........................................ 389 Alcohol consumption by young guests - generally ...................................... 390 Alcohol consumption by Lloyd and Dunn-Lawless ..................................... 391 Applicant’s alcohol consumption ................................................................ 393 Conversation regarding uninvited guests ................................................... 394 Gate crashers – generally ........................................................................... 396 General party atmosphere prior to incident ............................................... 397 The incident ................................................................................................... 397 The aftermath of the incident........................................................................ 406 Liability – case against second respondent .................................................... 406 Battery, assault and/or negligence? .............................................................. 406 Self-defence.................................................................................................... 408 Summary ........................................................................................................ 412 Liability – case against third and fourth respondents .................................. 412 General ........................................................................................................... 412 Pleadings ........................................................................................................ 413 Duty of care.................................................................................................... 414 General observations .................................................................................. 414 The law ........................................................................................................ 415 Analysis ....................................................................................................... 425 Breach of duty - standard of care ................................................................. 431 General principles ...................................................................................... 431 Analysis ....................................................................................................... 432 Factual causation .......................................................................................... 436 General principles ...................................................................................... 436 Analysis/findings ......................................................................................... 437 -- 16 of 496 -- [2026] SADC 27 11 Medical causation ............................................................................................ 438 The law ........................................................................................................... 438 The pleadings ................................................................................................. 440 Analysis /Findings ............................................................................................ 440 The applicant ................................................................................................. 440 Mr and Mrs Chattaway ................................................................................. 443 Dr Lamb ......................................................................................................... 443 Dr Jasoria ...................................................................................................... 444 Dr Rowe ......................................................................................................... 445 Dr Kutlaca...................................................................................................... 449 Prof McFarlane ............................................................................................. 451 General ....................................................................................................... 451 Retrospective diagnosis of PTSD ................................................................ 451 Causation hypothesis .................................................................................. 458 Prof Nielssen.................................................................................................. 469 Summary of findings – Medical Causation ................................................... 473 Orders ............................................................................................................... 480 -- 17 of 496 -- [2026] SADC 27 12 Introduction 1 This action proceeded to trial on the separate issues of liability and causation pursuant to rule 151.1 of the Uniform Civil Rules 2020 (UCR).1 2 The applicant, Nicholas Chattaway, by his litigation guardian, claims damages for personal injuries allegedly sustained by him on 5 December 2010 arising from an alleged assault upon him by the first respondent, Jack Lloyd (Lloyd/the first respondent) and the second respondent, Patrick Dunn-Lawless (Dunn-Lawless/the second respondent) at a party hosted by Ms Dansie and Mr Stankiewicz (the third and fourth respondents) at their home in Clarence Gardens (the premises). 3 The party was held on a Sunday night to celebrate the 18th birthdays of Owen Stankiewicz (the son of the third and fourth respondents) and his friend, Kelly Pigot. The applicant, and many of the other guests at the party, had recently completed their Year 12 studies. Some had already turned 18, others, including the applicant, were still aged 17. Alcohol was being consumed by guests at the party, including those who had not yet turned 18. 4 The applicant alleges that at about 10:30pm, he was the victim of an essentially unprovoked attack by the first and second respondents, who he claims struck him several times to the face with bottles, then decamped from the party. Although criminal charges were laid against the first and second respondents, those charges were ultimately not proceeded with. 5 The claims against the first and second respondents are by way of assault and battery and/or, in the alternative, in negligence. 6 The applicant alleges the third and fourth respondents were negligent in that they failed to take reasonable steps to prevent what was a reasonably foreseeable physical assault upon him, thus resulting in harm to him. 7 There is no dispute that as a result of the alleged assault (hereinafter referred to as ‘the incident’), the applicant suffered facial fractures to the nose and orbit, albeit the precise mechanism by which he sustained those injuries is in dispute. He required reconstructive surgery, undertaken by Professor David David (Prof David). He claims to suffer some ongoing symptoms arising from those fractures, including disfigurement and a partial loss of peripheral vision, taste and smell. 8 The applicant also alleges that as a result of the incident, he suffered psychological injuries including Post-Traumatic Stress Disorder (PTSD) and schizophrenia. Although there is no dispute that the applicant now suffers from schizophrenia, the respondents deny that the incident in any way caused or contributed to the development of that illness and they further deny that the 1 Chattaway v Lloyd and Ors [2021] SADC 141. -- 18 of 496 -- [2026] SADC 27 13 applicant suffered PTSD as a result of the incident. The issue as to whether the incident caused the applicant to suffer schizophrenia (and/or PTSD) was referred to at trial as the ‘Medical Causation’ issue. 9 In October 2014, the applicant violently assaulted his parents at his family home and was charged with two counts of attempted murder. On 16 December 2016, the Supreme Court found the applicant mentally incompetent to have committed the offences but imposed a supervision order with a limiting term of 10 years. 10 In June 2019, the applicant applied to be transferred from Australia to the United Kingdom (UK) under the International Transfer of Prisoners Act 1998 (Cwth) and the Council of Europe Convention on the Transfer of Sentenced Persons. On 12 September 2022,2 the applicant was transferred to the UK, where he was initially detained at Farmfield Hospital (Farmfield). He subsequently applied for, and was granted, permission to give his evidence at trial by audio visual link.3 11 Following a deterioration in the applicant’s mental health, he was transferred to the Broadmoor Hospital (Broadmoor), to serve the balance of the limiting term. The applicant remained detained at Broadmoor throughout the trial. Causes of action 12 The Statement of Claim – Revision 1 (SOC) pleads:4 At about 10.30 pm on 5 December 2010, whilst on the premises, the applicant was struck to the face by the first respondent when he swung his right arm towards the applicant and hit him with a champagne bottle. The applicant was then struck twice on the right side of his face by a beer bottle being held by the second respondent. The applicant was then subsequently struck in the face by each of the first and second respondents. These events all took place on the premises. 13 The applicant pleads that these actions constituted a deliberate assault upon the applicant; or in the alternative, ‘were the result of the application of force on the part of those respondents, resulting from their negligent and/or reckless and/or excessive and/or indifferent actions’. 5 14 The first respondent has never appeared in answer to the summons.6 The second respondent admits that he struck the applicant with his fist but claims he did so in defence of the first respondent, who he claims was struck first by the applicant. The second respondent denies that either he or the first respondent struck the applicant with a bottle or bottles. 2 That is, after the trial date had been set, but before the commencement of trial. 3 Chattaway v Lloyd and Ors [2022] SADC 152. 4 SOC at [5]. 5 SOC at [6]. 6 See discussion and orders below. -- 19 of 496 -- [2026] SADC 27 14 15 The claim as pleaded against the third and fourth respondents, alleges that they were negligent in that they:7 9.1 failed to keep any or adequate lookout; 9.2 permitted the first and second respondents to remain on the premises when there was a foreseeable risk that they may behave in a disorderly and offensive manner; 9.3 failed to ensure that the premises were secure and the birthday party was conducted in a safe and non-dangerous environment and failed to ensure any or any adequate security for the purposes of the birthday party particularly when the party involved the provision and consumption of alcohol; 9.4 failed by not having the first and second respondents removed from the premises. 16 The third and fourth respondents deny they were negligent as alleged or at all. They deny providing alcohol for the party guests. They claim the party was properly supervised by them and other adult guests. They deny that there was any reasonably foreseeable risk posed to the safety of guests at any time by the first and/or second respondent. First respondent’s absence 17 The Summons and Statement of Claim was filed on 31 January 2014. 18 Thereafter, attempts were made by the applicant to locate the first respondent to enable the proceedings to be served on him. The applicant’s solicitors and/or their agents ascertained that the first respondent had left Australia to live in the UK. Subsequent enquiries indicated he had changed his name to Jack Lam and operated both a LinkedIn page and a Facebook account under that name.8 The applicant successfully applied for an order for substituted service of the proceedings on the first respondent, via his active LinkedIn profile and/or his Facebook profile.9 19 On 17 March 2022, the applicant filed an affidavit deposing to electronic service of the proceedings on the first respondent with such service effected on 3 March 2022. 20 The first respondent has never filed a Defence to the action, nor has he appeared at any court hearing or attempted to participate in any part of the court process. Neither he nor anyone acting on his behalf appeared at the trial. 21 On Thursday 16 March 2023, Senior Counsel for the applicant made a verbal application seeking judgment be entered against the first respondent in default of his appearance. He did not seek such an order be made forthwith, rather he 7 SOC at [9]. 8 Exhibit P26 (FDN 142) at [6]-[31]. 9 FDN 142 filed on 14 February 2022; FDN 144 at [2(a)]-[2(c)]. -- 20 of 496 -- [2026] SADC 27 15 requested the Court make such an order when delivering its judgment at the conclusion of the trial.10 22 The default which provides the basis for any default judgment to be entered against the first respondent is his failure to file a pleading (defence) within the time as specified under the UCR. The relevant application was therefore an application under UCR 142.5 or 146.1(1) which required the applicant to file both an application and supporting affidavit. That application and affidavit was filed on 23 January 2026.11 The application remains to be determined. Primary issues in dispute 23 The trial proceeded in a highly adversarial manner. There were no agreed facts. Factual matters which were seemingly straight forward and only very ancillary to the primary issues in contention were contested, requiring evidence to be called and heard and factual determinations to be made. 24 As such, by way of summary only, the primary issues in dispute at trial, requiring my determination, were: 1. Was there any verbal (or physical) interaction between the applicant and/or the first respondent and/or the second respondent at the party, at any time, prior to the incident and if so, the nature of that interaction or interactions. 2. What were the circumstances of the party generally and immediately prior to the incident. 3. How and where did the incident occur? Specifically, were any bottles used by any person as weapons during the incident. 4. Was the second respondent acting in defence of himself and/or the first respondent during the incident. 5. What was the scope of any duty of care owed by the third and fourth respondents to the applicant and did they breach that duty of care. 6. Did the applicant develop PTSD after the incident and if so, was that PTSD caused by the incident. 7. Was the applicant’s schizophrenia caused by the incident? 10 T 112.29-114.1. 11 FDN 345. -- 21 of 496 -- [2026] SADC 27 16 Procedural background/delays 25 On 9 June 2022, this action was listed for a separate trial on the issues of liability and causation, commencing on 6 February 2023, with 20 days set aside.12 26 This judgment is confined solely to those two issues. 27 The trial did not commence or conclude within the dates as originally listed. Instead, due to matters relating to a deterioration in the applicant’s mental health, and multiple procedural defaults by the applicant, the trial finally concluded after proceeding for 26 sitting days scattered over various periods between March 2023 and late August 2024. 28 During that period the applicant and his mother, Catherine Chattaway (Mrs Chattaway), gave evidence on two separate occasions, with other evidence, including evidence led by the respondents on the issue of liability, interposed therein. 29 As to why it was considered necessary in the interests of justice for the trial to proceed in this unorthodox matter, I refer to and repeat the matters set forth in my Reasons for Decision in Chattaway v Lloyd and Ors [2023] SADC 72, particularly at paragraphs 14-58. This judgment must be read in conjunction with those earlier Reasons. 30 During the available sitting days in March 2023, the Court heard all of the evidence relevant to liability, save for the rebuttal evidence of Mr Pipinias. On 31 March 2023, the trial was then adjourned part-heard to recommence on 20 November 2023, with 20 days set aside. 13 31 The trial did not recommence on that date. 32 On 14 November 2023, the applicant filed an application seeking an order that the trial be either delayed for two weeks or adjourned,14 for reasons related primarily to ‘some difficulties regarding compliance with the retainer of counsel’.15 33 On 15 November 2023 the Court made numerous orders,16 including an order vacating the trial dates as listed between 20 November 2023 and 1 December 2023 (inclusive) and relisting the trial to resume on 4 December 2023 at 5:30pm for the 12 Chattaway v Lloyd and Ors [2021] SADC 141. The third and fourth respondents had applied for the Court to list a separate trial on the issue of liability only, which application was refused. My Reasons for that decision should be read in conjunction with this judgment to understand why a separate trial on liability only was not ordered at that time. As outlined in those Reasons, it was always intended that the applicant would be called to give evidence at trial on matters relevant to both liability and causation, notwithstanding the nature and severity of the mental illness suffered by him. 13 Thereafter, the third and fourth respondents again applied for the Court to order a separate trial on liability only. The application was refused; Chattaway v Lloyd and Ors [2023] SADC 72. 14 FDN 259. 15 FDN 260 at [2]. 16 FDN 262. The transcript of the hearing on 15 November 2023 provides further context, as does FDN 261, the 18th Johns affidavit. -- 22 of 496 -- [2026] SADC 27 17 applicant to give evidence via video-link from Broadmoor (noting the time difference). 34 On 29 November 2023, the applicant filed an application seeking an order that the trial listed to commence on 4 December 2023 be vacated.17 In his 21st affidavit, Mr Kerin, the applicant’s solicitor, deposed that the terms of counsel’s retainer had not yet been fulfilled, that the applicant was in a position to do so ‘today or tomorrow’ but, in any event, this would leave insufficient time for counsel to proof the applicant and prepare for trial.18 In that affidavit, Mr Kerin also deposed that Dr Nabi was of the view that the applicant’s mental health was ‘still in a recovery phase’ (after its deterioration in January 2023) such that he would cope better if his evidence was deferred for a period of two months.19 35 By his 22nd affidavit filed on 1 December 2023, Mr Kerin further deposed, inter alia, that although the terms of counsel’s retainer had now been fulfilled, counsel had insufficient time to properly prepare the matter for the trial date as listed.20 36 On 1 December 2023, the Court made orders, inter alia, vacating the trial dates as listed and relisting the trial to resume on 7 December 2023, at which time it was intended to hear the evidence of lay and other witnesses as to the issue of medical causation, rather than the evidence of the applicant.21 37 The trial resumed on 7 December 2023. On 13 December 2023, the Court fixed dates to hear the balance of the outstanding evidence, with those dates scheduled to give priority to the availability of the witnesses, the respondents and the applicant (in that order).22 The trial was listed to resume on 5 February 2024 (with two weeks set aside to hear the evidence of the applicant and Dr Rowe), on 5 March 2024, with three days set aside to hear the evidence of Professor McFarlane and on 8 April 2024, with two days set aside to hear the evidence of Professor Nielssen. 38 The trial resumed on 5 February 2024 during which the Court heard the evidence of the applicant and Dr Rowe as planned. The applicant gave evidence via video-link from Broadmoor over four consecutive days, with that evidence heard at night (morning time in the UK) to best accommodate both the applicant and Broadmoor staff. 17 FDN 273. 18 FDN 274 at [3]-[5]. 19 FDN 274 at [7]-[8] and ‘AJK-51’. 20 FDN 276 at [6]. 21 FDN 277. The transcript of the hearing on 1 December 2023 provides further context. 22 Given the fact that the multiple and continued delays in the action and trial had been caused by matters relating to the applicant, not the respondents, or the Court, and specifically that the recent delays were avoidable and unexplained, that is, those relating to the failure to fulfill the terms of counsel’s retainer between April and November 2023. Further, at that time the Court was unable to relist the trial for hearing between late-April 2024 and mid-September 2024, due to other trial commitments. -- 23 of 496 -- [2026] SADC 27 18 39 Due to the (last minute and unexpected) unavailability of the applicant’s counsel, the trial did not resume on 5 March 2024 and was instead relisted to resume on 6 March 2024. Fortunately, Professor McFarlane’s evidence was able to be completed on that day. 40 On 3 April 2024, the applicant filed an application seeking an order that the trial listed to resume on 8 April 2024 be adjourned, due to the unavailability of counsel, both to conduct the cross-examination of Professor Nielssen and to advise on matters relating to the closing of the applicant’s case on causation.23 41 On 3 April 2024, the Court made orders vacating the trial dates on 8 and 9 April 2024, relisting the trial to resume on 1 May 2024 with two days set aside (being a date selected having specific regard to the availability of Senior Counsel for the applicant). In addition, the applicant was ordered to provide notice to the Court and to the parties by COB 10 April 2024 as to whether he intended to call any further evidence.24 The applicant failed to comply with the latter order. 42 On 26 April 2024, the applicant filed an application seeking an order that certain evidence be allowed to be tendered as part of his case and an order seeking leave ‘to reopen a ruling and application regarding the existence of a brain injury from the assault.’25 43 On 30 April 2024, the applicant filed a further application (FDN 310) seeking an order that the trial date be vacated as Senior Counsel was no longer available to appear on the dates as listed due to other trial commitments in Fiji and Junior Counsel was also unavailable.26 44 On 30 April 2024, the Court heard and determined FDN 306 (in part) and FDN 310. The Court refused to allow any further adjournment of the trial and made an order allowing the tender of some of the evidence as listed in FDN 306.27 During this hearing, the Court raised with the applicant that insofar as the applicant sought ‘to reopen a ruling and application regarding the existence of a brain injury from the assault’, the Court assumed that what was in fact sought was an order allowing the applicant to amend his statement of claim to plead that he had suffered a brain injury as a result of the assault.28 The Court stated that if that assumption was 23 FDN 302 and FDN 303, noting that it was understood as at 13 December 2023, when this trial date was first set, that it was unlikely to suit the applicant’s Senior Counsel. 24 FDN 305. The transcript for the hearing on 3 April 2024 also provides further context. 25 FDN 306, supported by the 25th affidavit of Mr Kerin, FDN 307. 26 FDN 310, supported by the 26th affidavit of Mr Kerin, FDN 311. 27 FDN 312. 28 See transcript from hearing on 30 April 2024 for further context, noting the ‘brain injury’ issue had previously only been the subject of orders relating to objections as to parts of the reports of Dr Kutlaca and Professor McFarlane wherein reference was made to a (possible) brain injury having been sustained by the applicant in the assault and the potential ramifications arising therefrom. The objection raised to that part of Dr Kutlaca’s report was conceded by the applicant, and the objections raised as to both reports were upheld on the basis that no brain injury was pleaded. -- 24 of 496 -- [2026] SADC 27 19 correct it would be necessary for the applicant to issue a separate application seeking such an order. No such application was ever filed or agitated. Witnesses 45 For the reasons previously outlined, the applicant gave evidence via video- link from Broadmoor on two separate occasions, in March 2023 on the issue of liability and in February 2024 on the issue of causation. 46 In addition, the applicant called the following witnesses: 1. Mrs Chattaway, who gave evidence on both the issues of liability and causation. 2. His father and litigation guardian, Robert Chattaway (Mr Chattaway), who gave evidence only on the issue of causation. 3. His friends, Nicholas Eckert and Dechlan Heames, both of whom attended the party and were present at the time of the incident but did not witness the incident. They only gave evidence on liability. 4. Mr Nick Pipinias, a police officer involved in the investigation of the incident. 5. Associate Professor David Pennington, Plastic Surgeon, (A/Prof Pennington) who did not examine the applicant but provided an opinion on the papers as to the likely mechanism of the facial injuries sustained by the applicant in the incident. 6. Dr Christopher Lamb, Paediatrician, who assessed the applicant at the request of his parents in 2006 and 2009 (that is, before the incident). 7. Dr Barry Rowe, Psychiatrist, who was the applicant’s treating psychiatrist from April 2012 to June 2013. 8. Dr Vikas Jasoria, General Practitioner, who first examined the applicant on 7 December 2012 and on that date provided a medical report to Centrelink in support of the applicant’s application for a Disability Support Pension. 9. Dr David Kutlaca, Psychiatrist, who examined the applicant for medico-legal purposes in person at James Nash House on 15 February 2017 and in the High Dependency Unit at Yatala Prison on 2 March 2021. 10. Professor Alexander McFarlane (Prof McFarlane), who examined the applicant for medico-legal purposes in person at James Nash House on 14 June 2018 and 21 January 2021. -- 25 of 496 -- [2026] SADC 27 20 47 In addition, the applicant tendered a statement provided by Owen Stankiewicz to police on 11 January 2011.29 48 The second respondent gave evidence. In addition, he called evidence from his friend, Jordana McCallum, who was at the party and witnessed the incident. 49 The third and fourth respondents gave evidence and called the following witnesses: 1. Their son, Owen Stankiewicz, who organised and attended the party but did not witness the incident. 2. Their daughter, Eleanor Stankiewicz, who attended the party but had left prior to the incident. 3. Their friends, Timothy and Keryn Allan both of whom attended the party but did not witness the incident. 4. Professor Jason White (Prof White), who provided an opinion on the papers as to the applicant’s likely blood alcohol concentration at the time of the incident and any resulting impact thereon on either his actions and/or memory of events at the party. 5. Professor Olav Nielssen, Psychiatrist (Prof Nielssen), who interviewed the applicant for medico-legal purposes by telephone on 3 March 2022 and by audio visual link on 20 April 2022. 50 In addition, the third and fourth respondents tendered a statement made by Marcel Blanch-De Wilt (Eleanor Stankiewicz’s husband) who was at the party but left prior to the incident. 51 Numerous exhibits were tendered by the parties, including Exhibit R42,30 a two-volume tender book comprising various school records, medical records held by the applicant’s general practitioners, hospital records and reports/letters authored by various medical professionals who had either assessed the applicant from time to time and /or been involved in the applicant’s care, either before or after the incident. 52 Those documents include various reports written by psychologists (Ms Glynis Hannell, Ms Lindy Petersen, Dr Richard Clark and Dr Timothy Hill) and medical practitioners (Dr John Crompton and Prof David) who were not called to give evidence. They include the handwritten notes of Malcolm Robinson, Social Worker and Family Therapist, who was also not called to give evidence. 53 Prof David was not called to give oral evidence at trial by any party. However, the third and fourth respondents tendered two letters and a statement 29 Exhibit P9. 30 Tendered in its entirety, save for the documents at items 86 and 87. -- 26 of 496 -- [2026] SADC 27 21 from Prof David (the Prof David documents).31 These documents were relevant to a critical issue in dispute, namely the mechanism by which the applicant had sustained his facial injuries. 54 By way of background, on 2 August 2022, I made various orders including:32 7. Unless documents in the Tender Books are objected to, their authenticity, admissibility and relevance are admitted (incorporating the terms from Rule 117.1 and 154.5). 8. The applicant and respondents advise any additions to the draft Tender Books and any objections within 28 days. 55 The Prof David documents were included in the Index to the Third and Fourth Respondent’s Tender Book on Liability. The applicant did not advise of any objection to the inclusion of such documents in the Tender Book at any time prior to trial. 56 The third and fourth respondents applied to tender the Prof David documents in the absence of Prof David giving evidence at trial. This was initially opposed by the applicant on the basis that the applicant required Prof David to be available for cross-examination. An application was drafted by the applicant seeking leave to withdraw the deemed admission of the Prof David documents. The application, dated 30 March 2023, was never formally filed, nor argued.33 Although it was initially intended it be the subject of argument at the time of closing submissions, this was not pursued by the applicant.34 57 Ultimately the applicant did not oppose the tender of the Prof David documents. The documents were received by me.35 I have therefore considered these documents when making my findings of fact, along with all other relevant and admissible evidence. The documents were not admitted as to the truth of the facts outlined therein. The documents were received on the basis that the matters outlined therein represented the contents of the evidence-in-chief Prof David would have given, had he been called to give evidence. As he was not called, the Court has no evidence from Prof David as to his views on the evidence given by A/Prof Pennington, nor has Prof David’s evidence been subjected to cross- examination. I have taken this into account when determining the weight to be given to that evidence, which of course must be considered having regard to all of the evidence. 31 Exhibits R20, R21 and R22. 32 FDN 161. 33 See convoluted discussion on this topic commencing from T 807.11-862.9. 34 T 1771.27-1773.15. 35 T 822.11-27; T 825.34-36; T 857.29-31 and notwithstanding what was initially submitted at T 817.33-37 and subsequently submitted at T 857.36-859.7. -- 27 of 496 -- [2026] SADC 27 22 Other preliminary matters 58 The applicant’s case was opened on the basis that the applicant would not be giving evidence and that a statement he made to police shortly after the incident would be tendered in lieu. 59 As the applicant was called to give evidence, his police statement was not in evidence. There were factual differences in the evidence given by the applicant and the version of the incident as described by counsel for the applicant in his opening address. This case must be decided solely on the evidence. 60 All of the lay witnesses were giving evidence of their observations and recollection of an incident which had occurred over 12 years before the trial. Their recollections differed on numerous details. This is understandable given that many of the matters upon which they were questioned related to seemingly innocuous details about the party, rather than matters directly relevant to the incident itself. The passage of time between the incident and trial is such that it is unreasonable to expect any witness to have an entirely accurate and reliable recollection of such events. 61 For example, details such as precisely what time the party started or a guest arrived, what food was served and when, where the drinks were kept etc – are all minor details that one would not expect to be remembered. Other than the fact the incident occurred, there is no dispute (and certainly no reliable evidence to support a finding) that there was anything about this particular party to make it memorable from any other 18th birthday party the various guests attended at or about that time, or any other of the frequent parties the third and fourth respondents hosted at the premises at or about that time. 62 What one may expect to be memorable are events that occurred of and incidental to the incident – that is, not only the details of the incident and its immediate aftermath, but what, when considered in retrospect, may have been any event that occurred earlier at the party that may provide an explanation for and/or precipitated the incident. 63 The evidence led from the witnesses as to their recollection of the party needs to be considered in this context. 64 After the incident, the applicant developed a serious and treatment-resistant psychiatric illness. He has spent significant periods of time psychotic and heavily medicated. He experienced the significant trauma associated with stabbing his parents multiple times in 2014 and has endured years of detention in secure mental health facilities and, at times, in prison. 65 Mr and Mrs Chattaway have similarly endured the trauma of having their youngest child succumb to a debilitating and severe mental illness, which has impacted many aspects of their lives, including nearly costing them their lives. -- 28 of 496 -- [2026] SADC 27 23 66 As such, in addition to the usual difficulties encountered by witnesses dealing with events from so long ago, both the applicant and his parents have faced significant challenges, particularly since 2012. Their evidence must be considered in this context. 67 The decision to call the applicant to give evidence was a forensic decision made having regard to all of the circumstances. The applicant’s evidence on liability, given in March 2023, was truncated in the sense that Broadmoor would not allow him to continue to give evidence beyond a second day due to security and staffing concerns relevant to his behaviour at that time. The part-heard trial was adjourned and the resumption of the applicant’s evidence as to causation was adjourned in December 2023 due to concerns expressed by Dr Nabi as to his mental health.36 68 This raises another important issue to be determined, namely whether the very fact of the applicant’s mental illness and/or the effects of his long-term detention and medication are themselves relevant matters which must be taken into account by the Court when assessing the reliability of the evidence given him. The applicant’s evidence was critical to several important issues and the only evidence called by him as to the circumstances of the incident. 69 I will address this specific issue in my discussion and findings as the reliability and credibility of the applicant’s evidence generally. The Applicant – Pre-Incident Family background 70 The applicant was born in the UK on 1 February 1993. He was 17 years and 10 months old at the time of the incident, was aged 30 when he commenced giving his evidence and had just turned 31 at the time he finished giving evidence. He is the youngest of three siblings born to Kate and Robert Chattaway and has two older brothers, William (born 1987) and Christopher (born 1989).37 71 While living in the UK, Mrs Chattaway worked as a political journalist in both the House of Lords and the House of Commons.38 Mr Chattaway studied geochemistry at University in Manchester and then completed a master’s degree in business administration. He worked in merchant banking until about 1992, when he left to start an aircraft leasing company. Mr Chattaway returned to banking about five years later as the vice president of the Gulf International Bank.39 36 FDN 274 at [7]-[8] and ‘AJK 51’. 37 T 884.14-19. 38 T 884.1-3. 39 T 982.26-983.31. -- 29 of 496 -- [2026] SADC 27 24 72 The family migrated to Australia, settling in Adelaide, in August 2002.40 At that time, the applicant was aged 9, and had just completed the summer term of Form 4 in the UK. 73 After moving to Australia, the three siblings were enrolled at and attended St Peter’s College, Hackney.41 74 Mr Chattaway continued to work on a contractual basis as a Consultant with the Asian Development Bank. This role involved tendering for contracts and was not a full-time position, such that by December 2010, Mr Chattaway was effectively semi-retired. He has been retired since that date.42 75 After the family moved to Australia, Mrs Chattaway was with the family in Australia for only a couple of weeks before she returned to the UK. She stayed in the UK until almost the end of the school year (ie about the end of November 2002), before returning to Australia.43 There was no evidence as to what, if any, work Mrs Chattaway had undertaken since moving to Australia. She is now retired.44 76 Both Mr and Mrs Chattaway are clearly intelligent, high achieving individuals. 77 After completing Year 12, William attended University and now works as an Industrial Plumber in Melbourne.45 Christopher studied architecture at University and now works as an architect in Brisbane.46 By all accounts, they are also successful, intelligent, high achievers, consistent with their upbringing and education. School in the UK 78 Mrs Chattaway gave evidence that when the applicant was a young child, he struggled to learn to read and was very slow in writing. At the age of about seven, he was diagnosed with both dyslexia and dyspraxia.47 Mrs Chattaway said they found a dyslexia specialist, who was the headmistress of a local private school. As such, they made the decision to move the applicant from the school he was attending, to that school. She said, ‘in a smaller class, with the right sort of support he did very well’.48 40 T 986.12-14. 41 T 886.5-12. 42 T 993.13-994.2; T 1019.3-1022.7. 43 T 921.5-14. 44 T 883.32-33. 45 T 886.13-21. 46 T 886.22-25. 47 T 885.2-7. 48 T 885.22-23. -- 30 of 496 -- [2026] SADC 27 25 79 The only school report available for the applicant’s early schooling is that from Copthorne Preparatory School for the summer term of 2002, where he was in Form 4E.49 This was the last term the applicant attended school in the UK. 80 While the applicant’s results were variable, he was said to have performed well on several examinations and achieved good results in Maths, English, Science, History and Geography. However, he struggled in French, where he achieved a mark of 23% for the term, with the teacher noting ‘(h)e has worked steadily this term but he does not find language learning easy.’50 81 The report contains several references to the applicant failing to complete the examination papers in the allocated timeframe, thus impacting on his results. This may be consistent with the effects of both the dyslexia and dyspraxia. 82 In cross-examination, the applicant agreed with a proposition put to him that he was diagnosed with ADHD while he was still living in the UK.51 There was no evidence as to precisely when the applicant was diagnosed with that condition. Preparatory school in Adelaide (2002-2005) 83 The applicant commenced at St Peter’s Preparatory School in August 2002 (midway through Year 4).52 84 Mr Chattaway gave evidence that St Peter’s College (St Peter’s) was recommended by the applicant’s dyslexia support teacher in the UK and that St Peter’s was aware of the applicant’s issues with dyslexia and dyspraxia when he started there.53 The applicant was in a special needs group for extra support, which meant that he did not do a second language like the other boys.54 85 Mr Chattaway gave evidence that when the applicant started at St Peter’s, he found it difficult to fit in with a cohort of boys who had all been together since they were aged three. He said the applicant was bullied and that as a result, the school suggested that he engage Malcolm Robinson, whom Mr Chattaway described as a social worker.55 86 Mrs Chattaway described Mr Robinson as a Psychologist. She was asked if the school was concerned as early as September 2002 about the applicant’s aggressive behaviour. She said:56 A. Nicholas was being bullied. 49 Exhibit P51. 50 Exhibit P51 at p 12. 51 T 1376.6-9. 52 T 919.7-14. 53 T 986.18-33. 54 T 889.21-24. 55 Noting Ms Hannell, Psychologist, referred to Mr Robinson as a ‘behavioural counsellor’; Exhibit R42 at p 885. 56 T 919.24-38. -- 31 of 496 -- [2026] SADC 27 26 Q. Well, the school was concerned about Nicholas' aggressive behaviour, wasn't it. That's what they reported to you. A. Yes. Q. And you say he was being bullied. A. Yes. He was the English boy, and he was being bullied. And he was finding his - he had to find his place within that group, those boys had been together since kindergarten, they were a very tight group. Q. So, that's your explanation for what was happening. But what was happening was that Nicholas was displaying aggressive behaviour, that's right, isn't it. A. I don't know the full circumstances and what was being done to Nicholas. 87 Mrs Chattaway said that at about this time she returned to the UK. St Peter’s had recommended the applicant be referred to Mr Robinson and her husband had been involved with this.57 88 Mr Chattaway recalled attending a meeting with Mr Robinson and the applicant at Mr Robinson’s office. He said Mr Robinson dealt with the issue ‘very effectively’. He suggested that Mr Robinson’s approach had ‘ruffled the feathers’ of the teachers at St Peter’s, which ‘sort of echoed in the teacher’s reports a bit’.58 89 From this, I have inferred, that Mr Chattaway was suggesting those school reports were less than favourable towards the applicant because of matters actually unrelated to the applicant’s academic performance or behaviour. There was, however, no evidence from Mr Robinson, or any other evidence, to support this supposition. 90 Mr Chattaway was asked in cross-examination if the purpose of the referral to Mr Robinson was to address the school’s concern that the applicant had reacted with physical violence when other students confronted him. After initially saying he did not recall, Mr Chattaway explained that he did not recall there being violence. Rather, he recalled that the applicant had been the subject of bullying, associated with him having come from abroad and that there was ‘a problem with the level of response that was going on’.59 91 Mr Chattaway said the applicant only saw Mr Robinson once and that thereafter Mr Robinson dealt with the headmaster and the teachers ‘and the problems that Nicholas was suffering from went away and these allegations were made no further’.60 By way of further clarification, he said that by the time the applicant was in Year 8 or 9 the cohort had changed due to the large influx of new 57 T 920.4-29. 58 T 988.25-29. 59 T 1040.8-9. 60 T 1040.24-25. -- 32 of 496 -- [2026] SADC 27 27 students, and by the time the applicant was in (Year) 10 or 11 there were no problems at all.61 The ‘problem’ being an inappropriate reaction to bullying. 92 It was suggested to Mr Chattaway that Mr Robinson assisted the applicant to develop strategies or abilities to keep his impulses under control and that part of Mr Robinson’s effectiveness was to get Mr and Mrs Chattaway to deal with the applicant’s impulse control. Mr Chattaway disagreed with this. He was directed to that portion of Mr Robinson’s notes which recorded:62 Action to be taken re Chattaway 1. Distinction between harassment and NC responses School dealing with a) NC & family to deal with b) ˃ Dyslexia and APD > what testing has been done ˃ Impulse control 93 Mr Chattaway gave evidence that the school dealt with the harassment and the family dealt with the dyslexia ‘and all the rest of it’.63 When it was suggested that ‘all the rest of it’ included impulse control, he said, ‘if you say so, yeah’.64 94 Mr Robinson did not give evidence, however from his notes it is clear that the applicant was being bullied at St Peter’s and responding to that bullying with violence. The teachers were concerned that that by his response, he could hurt someone. Mr Robinson provided the applicant with strategies as to how to respond appropriately, and not violently, to the taunting he was experiencing. He liaised with the school, including the Deputy Headmaster, Mr McLaren, to assist to put some of those strategies in place. This included arranging testing relevant to the applicant’s dyslexia and APD (Auditory Processing Disorder).65 95 It is clear from these notes that the applicant was to be assisted at school by a support teacher with respect to special needs/dyslexia. 96 In June 2003, the applicant was assessed by Ms Glynis Hannell, Psychologist. She confirmed the applicant had had a difficult transition from the UK to his new school but had now moved beyond those issues and was feeling positive both about his peer group and school.66 61 T 1040.29-1041.2. 62 Exhibit R42 at p 178. 63 T 1043.25-27. 64 T 1043.30-32. 65 Exhibit R42 at pp 173-178. 66 Letter from Ms Hannell to Mrs Moxham, St Peter’s College, dated 30 June 2003, Exhibit R42 at p 885. -- 33 of 496 -- [2026] SADC 27 28 97 Ms Hannell conducted testing which demonstrated the applicant to be very bright, with very good intellectual potential. Some of the applicant’s test scores fell within the ‘gifted’ category, with him performing particularly well on tests of vocabulary and comprehension. However, testing revealed problems with the applicant’s short-term memory and the physical process of writing was arduous for him, being typical of a dyslexic/dysgraphia learning disorder.67 98 Ms Hannell noted that the school had expressed concerns about the applicant’s social behaviour, namely that he could be aggressive and thoughtless. They had also expressed concerns about his ability to concentrate. Ms Hannell thought some of the applicant’s behavioural issues arose from him trying to ‘make his mark’ and exert himself in ways other than in his schoolwork, where he was experiencing difficulties. She opined that as he was bright, he may find certain tasks underchallenging and his poor listening memory may also contribute to others perceiving that he was not listening or concentrating.68 99 Ms Hannell recommended that the applicant be allowed some accommodations and adjustments with respect to writing tasks and intensive supports in maths, to ensure he could master basic processes and to gain confidence in his abilities. She noted that he yearned for recognition and affirmation and was likely to respond well, from both an academic and behavioural perspective, if he was given positive encouragement.69 100 The only school reports in evidence relating to this period of the applicant’s life are the 2005 Mid-Year Report and 2005 End of Year Report.70 These were prepared when the applicant was in Year 7 at St Peter’s, his final year in the Preparatory School. 101 Those reports demonstrate that the applicant received learning assistance throughout the year, delivered three times a week, when other students attended Chinese lessons. The focus of that support was assistance with assignments, research tasks and writing activities. The constant theme from these reports is that the applicant had considerable ability, but was not utilising that ability, due to his inability to retain focus and lack of organisational skills. He was noted to work at a very slow pace, had difficulty concentrating and was easily distracted by his peers. 102 In August 2005, the applicant’s parents arranged for him to be assessed by Ms Lindy Petersen, Child and Family Psychologist. 103 In cross-examination it was suggested to Mrs Chattaway that this was to address various issues, including dealing with the applicant’s behaviour. She 67 Integrated Assessment Report of Ms Hannell dated 24 June 2003, Exhibit R42 at pp 887-889. 68 Ibid at p 890. 69 Ibid at pp 890-891. 70 Exhibit R42 at pp 1-19. -- 34 of 496 -- [2026] SADC 27 29 disagreed with that proposition, rather she said they took him to see Ms Petersen to see what strategies could be put in place to help him.71 104 In her report, Ms Petersen stated that that the applicant’s parents had requested an assessment upon referral from Dr Angas, GP, Arkaba Family Practice, ‘in view of his difficulties with concentration, organisation, memory for instructions, literacy, and controlling his behaviour at times.’72 105 Ms Petersen stated:73 [The applicant’s] distractible behaviour in the classroom is an issue and he requires constant redirection by his teacher. His parents are concerned about entry to secondary school next year in terms of his ability to cope well. 106 When Mrs Chattaway was asked in cross-examination if the issues referred to by Ms Petersen (and in the school reports) were serious enough for her and Mr Chattaway to seek assistance from a psychologist, Mrs Chattaway initially responded by saying, ‘I think a lot of boys have educational psychological assessments.’74 She then agreed with that proposition, and explained that the applicant was moving into the senior school.75 107 When Mr Chattaway was asked about the reason for the referral to Ms Petersen, and whether it was due to their concern about the applicant’s ability to cope in secondary school, due to his distractibility in the classroom, he said he could not recall.76 108 In her report, Ms Petersen described the applicant as a polite, co-operative boy, who was underachieving at school due to both an attention deficit/hyperactivity disorder which affected his concentration, recall organisation and impulse control and dyslexia. She referred to the applicant’s ‘physical restlessness and fidgetiness, day dreaminess, distractibility, short attention span, excitability and impulsivity.’77 Relevantly, she stated:78 Emotionally and socially, Nicholas seems reasonably well adjusted, positive and skilled although his impulsivity and poor listening skills can affect the quality of his relationships. 109 Ms Petersen noted that the applicant had several intellectual strengths, particularly in oral language and creative problem solving. He was encouraged to take more responsibility and put effort into his work, rather than relying on 71 T 922.30-38. 72 Report dated 12 August 2005, Exhibit R42 at p 894. 73 Ibid. 74 T 926.33-34. 75 T 927.2-3. 76 T 1050.9-38. 77 Exhibit R42 at p 896. 78 Ibid at p 897. -- 35 of 496 -- [2026] SADC 27 30 teachers modifying the work for him or on the considerable assistance his mother was said to be providing him.79 Secondary school (2006-2010) ADHD? 110 Prior to commencing Year 8 in 2006, the applicant was referred by Dr Angas, GP, to see Dr Christopher Lamb, Paediatrician. Dr Lamb was called to give evidence by the applicant. 111 In a letter to Dr Angas dated 24 January 2006, Dr Lamb stated that the applicant had been diagnosed with ADHD and dyslexia in the UK and had received Ritalin in his junior primary years, with a positive response. He had not been using that medication since coming to Australia. Dr Lamb stated that various measures had been instituted at school to try to tackle the applicant’s poor concentration span and easy distractibility. He was also suffering infrequent migraines.80 112 Unlike Ms Petersen, Dr Lamb did not observe signs of ADHD during his examination of the applicant. However, he arranged for the applicant to have Ritalin 40 mg long-acting capsule for when he went back to school. He also arranged for the applicant to undergo formal neurocognitive assessment, undertaken by Dr Richard Clark, Psychologist.81 113 In his letter to Dr Lamb dated 18 January 2006, Dr Clark stated:82 Cognitive testing did not find a pattern strongly consistent with what we often observe with ADHD. Nicholas scored well on tests of verbal learning and memory and on tests of verbal knowledge. Dextral skills were fine. On the other hand, Nicholas scored poorly on a number of other tasks (eg Switching of Attention, Verbal Interference, Maze), with a pattern of performance indicating relative difficulty with the capacity to sequence or otherwise organise activity. Such difficulty is likely to be frontal in origin. 114 When asked during cross-examination about the referral to Dr Lamb (and then Dr Clark) in 2006, Mr Chattaway gave the following evidence:83 I guess that is what happened, yes, but there was neurocognitive training at the same time occurring at this point in time. I don't recall the details of it, but it was to do with his attention span and his distractibility at school, yes. But we're not talking about, you know, majorly. If you read the school reports, we are not taking about major significant things but this is us concerned with Nicholas's social and educational development. This is put forward by us in order to put him through neurocognitive, to deal with his dyslexia and dyspraxia. 79 Ibid at pp 898-900. 80 Exhibit R42 at p 905. 81 Ibid. 82 Exhibit R42 at p 903. 83 T 1051.28-38. -- 36 of 496 -- [2026] SADC 27 31 115 The applicant returned to see Dr Lamb in April 2009 at the request of his general practitioner, Dr Angas, at which time he was continuing to present with the same issues.84 116 In a letter to Dr Angas dated 1 May 2009, Dr Lamb noted that the tests conducted by Dr Clark in 2006 had demonstrated a pattern ‘moderately suggestive’ of ADHD, with particular weaknesses in areas of executive functioning.85 He reported that the accused had been prescribed Ritalin, which had significantly boosted his concentration span, with ‘very much improved overall school performance’, albeit recently his teachers had complained his concentration was again inadequate. He noted the applicant was only taking a single 10 mg tablet of Ritalin daily and was reserving the use of the medication for when he thought he particularly needed it (ie during exams).86 117 Dr Lamb gave evidence that he was surprised by this, as a single 10 mg tablet per day was only 20% of the dose the applicant required.87 118 Dr Lamb considered that the applicant required an increase in his dose of Ritalin to bring him within the therapeutic range (two to three 10 mg tablets each morning), albeit he agreed that the applicant did not need to take the medication every day and that he should control when he needed it.88 119 Sometime in early 2010, the applicant was assessed by Dr Timothy Hill, Psychologist, to clarify the nature of any learning difficulties he suffered and to ascertain his intellectual strengths and weaknesses. 120 In a letter to the applicant dated 14 April 2010, Dr Hill stated that the applicant’s test results pointed to significant strengths in his verbal abilities, where the applicant performed in the superior range for someone of his age. He demonstrated significant strengths with respect to verbal expressive skills and verbal reasoning abilities, meaning he would be well suited to courses or careers that utilised his language and reading skills.89 121 However, the applicant demonstrated significant difficulties with spelling and had impaired handwriting speed, and some weakness with respect to working memory. This was consistent with the applicant having both a specific learning disability (dyslexia) and dysgraphia.90 122 Dr Hill recommended the applicant be provided with concessions during examinations, including extra time to complete the papers and short breaks if he was required to sit a three-hour exam. In a letter to the SACE Board dated 17 June 84 Exhibit R42 at p 907; T 166.13-17. 85 Ibid. 86 Ibid. 87 T 1166.20-23. 88 Exhibit R42 at p 908. 89 Ibid at p 913. 90 Ibid at p 914. -- 37 of 496 -- [2026] SADC 27 32 2010, Dr Hill noted that the latter request had been granted but the former denied, and that decision was to be the subject of an appeal. Dr Hill outlined his strong support for that decision to be reversed.91 123 The applicant returned to see Dr Lamb in in June 2010, just before the end of the First Semester of Year 12. At that time, there was no change in his presentation from that observed in either 2006 or 2009.92 124 Dr Lamb gave evidence that the applicant told him he was talking two Ritalin tablets per day which was helping him. He said, ‘He was in Year 12 and seemed to be going along quite well.’93 He clarified that by this he meant the applicant was going quite well from an ADHD perspective.94 125 In a letter to Dr Angas dated 19 June 2010, Dr Lamb stated:95 Nicholas is now in Year 12, but is struggling. The special needs teacher assists him, but the difficulty of the work itself might be slightly beyond his abilities. Nicholas continues to derive benefit from Ritalin, which he takes at a very low dose of 2 tablets on school days … 126 Dr Lamb gave evidence that, ‘Academically he was obviously having some difficulties as he always did’.96 He must have been told this either by the applicant or by Mrs Chattaway, who sat in on the appointment.97 He said:98 I would have said that, firstly I would have said it was pretty amazing he got to Year 12. I'd say that academically that he was stable and that he was getting through. He was making it. It had been a struggle all the way through school for him. 127 Of interest is the evidence Mr Chattaway gave in cross-examination. He said that whether the applicant did, or did not, have ADHD was a matter of conjecture. He said that although some psychologists had said he did, Dr Timothy Hill had done ‘the most detailed study on Nicholas and completely refutes the fact he has ADHD and says that he has dyslexia and dyspraxia’.99 The letters in evidence from Dr Hill make no mention of ADHD. School reports/detention reports 128 The applicant undertook all of his secondary schooling at St Peter’s. Reports have been provided for each year, from Year 8 (2006) to Year 12 (2010). Insofar 91 Ibid at pp 915-916. 92 T 1166.35-1167.2. 93 T 1167.2-5. 94 T 1171.19-20. 95 Exhibit R42 at p 909. 96 T 1171.22-23. 97 T 1171.27-37. 98 T 1172.8-12. 99 T 1028.3-11; T 1044.14-23. -- 38 of 496 -- [2026] SADC 27 33 as reports for various subjects are available, the applicant’s academic results for each subject, at each level, are summarised in the attached table, Appendix A. 129 The reports for 2006 (Year 8) essentially mirror those for 2005. That is, the applicant clearly had ability, but lacked focus, concentration and commitment to his studies. 130 The Mentor report for Semester 1 reads:100 Report from Mentor There is a consistency of praise and advice in these reports. His subject teachers comment on Nicholas’ enthusiasm, contributions in class and perceptiveness. It is quite clear there is no lack of ability. However, there are also concerns about poor organisation, inconsistency of effort and lack of attention to detail. It comes down to a need for greater self reliance, persistence and a sense of responsibility. Now that he has settled into the Senior School and understands what is required, it is vital Nicholas develops better work habits and an effective study routine. This means, books organised before school and during breaks, settling down to work in class, homework fully and carefully completed at a fixed time in a place where he has no distractions. If he has to make a success of his studies, these matters will need to be in place before the end of this year. Nicholas enjoys and shows talent in Water Polo and Rugby. He has much to gain from greater extra-curricular involvement. Mr Ernst Hebart 131 Relevantly, the applicant continued to demonstrate behavioural issues. In the Semester 2 report, the applicant’s Mentor stated:101 Report from Mentor It is clear that Nicholas enjoys the variety the Senior School offers as well as the choice of activities and friends. His repeated, spontaneously aggressive reaction to other boys is a matter of concern. It is good that he is now receiving help in this area, though the underlying causes, such as frustration, a defensive attitude and intolerance, are concerns in themselves, as is the obstinacy. His results suggest that he has chosen to work in certain subjects, though there is some question about the amount and the effectiveness of his revision; that is a pity, given the emphasis placed on study skills in the Mentor Group meetings. It is imperative that disciplined behaviour in the classroom and effective work habits are in place by the end of Year 8 and there are signs of improvement in this area. Nicholas has enjoyed his involvement in Rugby and Water Polo and he shows real promise in both. (my emphasis) 100 Exhibit R42 at p 22. 101 Ibid at p 26. -- 39 of 496 -- [2026] SADC 27 34 132 In 2006, the applicant received several detentions. One of these related to being late for chapel and another for throwing a piece of fruit and ‘spuring a fight between other people’.102 133 As to the latter incident, the applicant wrote an account of what happened (from his perspective). On the applicant’s version, other boys started the incident by throwing half oranges at each other in what was a ‘sort of game’ between groups of boys. He joined in and tried to run away from another boy, who grabbed him by the shoulders. He tackled the boy as he thought he was going to hit him. He described others as escalating the situation.103 134 Mr and Mrs\ Chattaway wrote a letter to the Head of Senior School, Mr Hately, after the incident. In that letter they defended their son and expressed concern at the fact he appeared to have been unfairly reprimanded, when others had not. They stated:104 Having read what he (the applicant) said and noted that it was a play fight and that Nick was just one of nearly 30 boys, I am unable to understand why his behaviour might prompt an anger management programme to be put in place. ... 135 On the bottom of that letter is a handwritten note, apparently written by Mr Hately, which states:105 Telephone conversation with Mrs Chattaway. Refuted Nick’s version of events. Kicked another boy … 136 During 2006, the applicant also received a detention for ‘Wilfully damaging school property’. In his letter of apology, the applicant wrote:106 Dear Mr Cardone I apologise for destroying your desk thus not paying attention thus not listening to your lesson. I am sincerely sorry for my behaviour. I will not repeat his behaviour. I hope you can forgive my inappropriate behaviour. Your sincerely Nicholas Chattaway 137 The applicant gave evidence that when he was 13, he damaged a desk. He said he dug into the enamel and broke a bit of the vinyl off the desk. When asked why he did that, he said, ‘I didn’t like maths’.107 102 Ibid at pp 55-56, 63. 103 Ibid at p 88. 104 Ibid at p 87. 105 Ibid. 106 Ibid at p 61. 107 T 1309.8-15. -- 40 of 496 -- [2026] SADC 27 35 138 On 13 November 2006, the Head of House, Mr Jehle, sent an email to Ms Jane Tiggeman, Psychologist, in the following terms:108 Jane Tiggeman From: Alfred Jehle Sent: Monday, 13 November 2006 12:37 PM To: Jane Tiggeman Cc: Nick Hately; Ernst Hebart Subject: Nick Chattaway Dear Jane, We have a yr 8 in Farrell House that we would like you to see as soon as possible regarding some anger related issues. He (Nick Chattaway) is an unusual boy with some serious organisational problems. He works with Cairan Geraghty for language studies and is difficult to motivate and keep on task during lessons. He seems highly intelligent in some areas but is a disaster in others being unable to concentrate. This no doubt leads him to some frustration. He plays rugby and has older brothers so he is used to some rough activity. His lack of organisation means he carries everything (books, lunch, sports clothes) on his back rather than use a locker and is getting stronger by the day! He has been involved in at least three incidents with boys being injured, two of which he has sat detentions over. He seems to get into an altercation and responds in a very heavy handed way (overreacting). He pleads innocence claiming the injured party ran into his outstretched first or foot etc! Kind Regards, Alfred Jehle Farrell House 139 The applicant could not recall the incidents referred to in that email.109 He gave the following evidence-in-chief:110 Q. This person then suggests that in their view you seemed to get into an altercation and respond in a very heavy-handed way, do you agree with that. A. No, I think if I'm being antagonised, I don't know. 140 In cross-examination, the applicant disagreed with a proposition put to him that he had difficulty controlling his anger, from time to time, in high school.111 When he was asked if what Mr Jehle wrote was a fair summary of his behaviour, 108 Exhibit R42 at p 89. 109 T 1312.7-8. 110 T 1312.13-16. 111 T 1376.30-35. -- 41 of 496 -- [2026] SADC 27 36 he said, ‘I can’t answer that. It’s someone’s opinion.’112 He said, ‘the idea that people’s personality is stagnant doesn’t make sense to me.’113 141 During 2007 (Year 9), the applicant demonstrated some improvement in his organisational skills and was noted to be polite and co-operative when working with other students. He still struggled to concentrate and remained easily distracted. 142 The applicant’s Language Studies teacher noted he was a clearly intelligent young man with the potential to achieve excellent results. The work the applicant completed in Maths was said to be superb but unfortunately, he had difficulty with time management meaning he did not complete a large portion of work. 143 The Physical Education teacher succinctly stated:114 At his best he is a solid contributor. Too often though, he is unprepared, disorganised, disinclined; but also good humoured, and pleasant with it. 144 At the end of Semester 1, the Mentor noted:115 Report from Mentor Nicholas has reason to feel proud in this report of the many positive comments which point to the improvement he has made. His subject teachers note his clearer sense of direction, the fact that he is now more settled in class, and then there are also the fine grades in a number of subjects. These achievements indicate a growing maturity which is usually reflected in the way he interacts with his peers. However, the incidents in which he has been involved are still matters for concern. All this should encourage him to focus on the advice offered here: to be attentive and cooperative in all classes and make sure that work is completed in time, that revision for tests is carried out and that a daily revision program is in place before examinations. Nicholas has been a cheerful, cooperative member of the Mentor group. He clearly feels deeply about some issues and he is increasingly able to clearly articulate his thoughts. It is pleasing to note his membership of the Exploration Society. Mr Ernst Hebart 145 However, thereafter, the documentation demonstrates that the applicant continued to display behavioural issues. 146 In May 2007, the applicant racially abused one of his teammates during a Junior Rugby match. The Head of Senior School, Mr Hately, noted that this was of such a public nature, the applicant was sent off by the referee. He was suspended 112 T 1378.35. 113 T 1379.2-4. 114 Exhibit R42 at p 28. 115 Ibid at p 30. -- 42 of 496 -- [2026] SADC 27 37 from Rugby games and training for two weeks and was required to receive counselling. In his email dated 17 May 2007, Mr Hately noted:116 This outburst is unfortunately in keeping with some anger management issues we have seen with Nicholas over the past 18 months. 147 In August 2007, the applicant filled in for the 9B AFL team in a game against Blackfriars. In an email sent to others, including Mr Hately, dated 20 August 2007, Mr Geraghty, the Physical Education teacher stated:117 … 1. Nick Chattaway and Terry Wilkinson filled in for us. Their chosen sport is Rugby. While Terry was fantastic, unfortunately the same cannot be said for Nick. From the very first bounce it was clear that his main intention was to start a fight and by half way through the first quarter things were getting out of hand. He began pushing other players and eventually a boy pushed back and Nick started swinging. I immediately sent him off for a quarter but as soon as he came back on he began, once again, pushing other players in an attempt to start physical violence. Because I had to umpire I missed a lot of what was going on behind the play involving Nick. The annoying part of it all was that at quarter time I singled him out (quite loudly) and informed him that fighting would not be permitted. It was disappointing to see that after he came back on in the second half he continued his disgraceful behaviour. The game was difficult enough for our boys with Blackfriars playing 18 to our 15 in the first quarter which was not arranged or approved. Ciaran Geraghty Email: [email protected] Internet: www.stpeters.sa.edu.au Phone: +61 8 362 3451 Fax: +61 8 8362 1654 St Peter’s College, St Peters SA 5069 148 As a result, the applicant was given a detention. This prompted Mrs Chattaway to again write to the school, outlining her and her husband’s view that the applicant had been unfairly punished for simply retaliating, by swinging a fist at an opposition player who had hit him twice in the face below the eye.118 149 Mr Hately wrote a letter by way of response to Mr and Mrs Chattaway dated 28 August 2007, wherein he stated:119 … Let me first address Nicholas’ behaviour. Regardless of the provocation, Nicholas acted inappropriately and, by your own admission, “Nick retaliated by swinging his arm at him”. 116 Ibid at p 92. 117 Ibid at p 93. 118 Ibid at pp 94-95. 119 Ibid at p 96. -- 43 of 496 -- [2026] SADC 27 38 This deserves a consequence. We have raised the matter with Blackfriars and they would have punished their student but, we have no control over this. Nicholas does, from time to time, demonstrate aggressive or inappropriate behaviour: • he had to be suspended from Rugby for racially abusing his team-mate, • he received a detention on 17 August for fighting with another boy at lunchtime, • he received a detention on 12 April for wilfully damaging school property, • last year, he also received a detention for fighting, • prior to this, I notice in his file that when he was in the Junior School, Mrs Moxam raised concerns regarding his aggressive behaviour, and • several staff have expressed concern regarding his overly aggressive and physical behaviour at recess and lunch times. … Nicholas has many fine qualities. His obvious commitment to his friends and School is one of them. The social spirit he displayed in wanting to help the football team out is a credit to him. I am happy for Nicholas to come and see me to discuss when he will serve his detention. I am always happy to meet with you to discuss Nicholas’ progress. Yours sincerely Nick Hately Head of Senior School 150 The applicant wrote a letter of apology on 14 August 2007 directed to Mr Hately following this incident. In that letter he wrote: 120 Mr Hately I apologise for disgracing the school and the Saints Football Team. I acted rashly and did (sic) think about my actions. I’m sure this incident would have caused the school a lot of problems. I am very sorry about this and I hope it has not reflected to (sic) badly on the school. I am also apologising for behaviour which was unacceptable and rash. I did not mean to tarnish the name of Saint Peters. I hope that this letter is accepted. Yours sincerely NPC 120 Ibid at p 66. -- 44 of 496 -- [2026] SADC 27 39 151 The applicant gave evidence-in-chief that he recalled writing this letter. He said:121 A. I think a football player had punched me in the face and I think there was some pushing involved and I was the one that was dealt with severely. Q. When you say someone had hit you, is that someone had hit you on the sporting field. A. On the sporting field, yeah. Q. Did you hit that person back. A. No. 152 When asked later about his conduct during that football match, and generally, the applicant explained that he was a rugby player playing football. He said he did not think he was a dirty player and denied engaging in any fighting on the football field. He said:122 I never broke any rules. I never went below the waist, I never went above the neck, so I didn’t break any rules. 153 During cross-examination, the applicant was reminded of what Mr Hately had written in the letter to his parents, as outlined at paragraph 149. He gave the following evidence:123 Q. What I'm putting to you is that it's true that when you were at St Peter's College, from time to time you demonstrated aggressive or inappropriate behaviour. Do you agree with that or not. A. Unless you've got a specific example for me I can't really comment. Q. Well the examples are there in the letter; you've read them. A. Yeah, they're examples but there are no dates, no names, nothing, so how am I supposed to remember what happened or how it was? You're being ridiculous. Q. Do you not remember those incidents. A. I can't remember those incidences. Many years before. You have no idea. 154 Mrs Chattaway was asked about this incident during cross-examination but said she could not recall it, nor could she recall concerns having been raised about the applicant’s aggressive behaviour when he was in the junior school.124 155 Mr Chattaway was also cross-examined in some detail about reported problems associated with the applicant’s behaviour in 2007. He said, ‘I don’t recall 121 T 1310.19-26. 122 T 1314.18-20. 123 T 1380.14-27. 124 T 945.21-948.21. -- 45 of 496 -- [2026] SADC 27 40 particular problems with his behaviour.’125 He then recalled being present at a football match where the applicant had said ‘Why did you drop that ball, you stupid Asian’, for which he was sent off. He acknowledged this was an inappropriate comment but said, ‘I would hardly say that was a major issue at a football match.’126 156 When asked about the incident in the AFL game involving Blackfriars, Mr Chattaway confirmed he was not present at that match. He did not recall if the school had raised, with him and his wife, the applicant’s behaviour at that time as being an example of overly aggressive and physical behaviour.127 157 During examination-in-chief, the applicant was asked if he had any recollection of ever getting into any fights at school with anybody. He said:128 A. Oh God, yes, I had been in some physical altercations, yeah. Q. Are you able to say how many of those occurred during your time at school. A. I don't know. 158 In the applicant’s report for the end of Semester 2, 2007, the Mentor stated:129 Report from Mentor Nicholas has achieved some sound grades and there are a number of very positive comments here. However, there is the frustrating sense that his attitude is preventing his ability from developing as it might. It seems to come down to three things: planning ahead, concentrating on the task and not giving up. It is important that he focuses on these skills as he goes into Year 10 if he is not to sabotage his success. Nicholas has been a cooperative member of the Mentor Group; he is cheerful and we all appreciate his sense of humour. Sometimes, however, he can appear frustrated and then is rather quick to dismiss others, blame them or point out faults in them while perhaps unwilling to admit any in himself. This is a pity because it undermines his capacity for leadership. He clearly enjoys his involvement in the Exploration Society, in Water Polo and especially in Rugby, where he shows particular talent. Mr Ernst Hebart 159 In cross-examination, and after Mrs Chattaway had been shown the contents of the reports and letters from the school for 2006 and 2007, a proposition was put to Mrs Chattaway that the applicant’s time at St Peter’s had a lot of problems associated with it. She disagreed.130 125 T 1060.1. 126 T 1060.6-11. 127 T 1060.30-33. 128 T 1314.28-32. 129 Exhibit R42 at p 33. 130 T 942.32-35. -- 46 of 496 -- [2026] SADC 27 41 160 It was suggested to Mrs Chattaway that the reports for 2007 demonstrated that the applicant had difficulties with his attitude, which prevented him from achieving his full potential and was finding it hard to concentrate. Mrs Chattaway responded by highlighting the more positive aspects of those reports. She stated:131 A. I think we're looking at years 8 and 9, when Nicholas was 13 and 14. I think that boys sometimes do have issues, certainly some boys were actually expelled or asked to leave in those two years. That never applied to Nicholas. 161 The school reports for 2008 (Year 10) refer to the applicant having problems being organised, at times being disruptive in class and needing to improve in terms of his effort and application. The Mentor wrote, at the end of Semester 1:132 Nicholas has made some positive progress this semester but he has let himself and others down in many areas. His assessment grades and mid-year test scores are inconsistent and disappointing and his teachers report that he has the potential to do much better … 162 As to whether these reports were of concern, Mrs Chattaway gave the following evidence:133 A. One would always want one's child to do better. Q. Yes, but did they concern you as part of a continuing pattern. A. We would encourage Nicholas to concentrate on his studies to try to be better organised, to complete work, to start work. Q. And that's obviously very commendable but were you concerned that your encouragement wasn't working. A. Well I don't think we've got to year 12 have we? 163 In 2009 (Year 11), the school reports contain similar themes, that is, that the applicant needed to be more focussed in class, better prepared and apply more effort to his studies. 164 As the year progressed, the applicant demonstrated some improvement in terms of effort and organisation, with some small corresponding improvement in his academic performance. 165 During 2009, the applicant received several detentions, for missing muster, wearing incorrect uniform and for playing a computer game during Maths. As to the latter, the applicant completed a Detention Reflection Sheet, wherein he expressed the opinion that it was unfair he had been given an unnecessary detention.134 Mrs Chattaway disagreed with a proposition put to her in cross- 131 T 949.23-27. 132 Exhibit R42 at p 36. 133 T 953.8-16. 134 Ibid at pp 78-79. -- 47 of 496 -- [2026] SADC 27 42 examination that this was an example of the applicant responding inappropriately when challenged.135 166 When Mr Chattaway was asked generally about the applicant’s reported difficulties experienced during secondary school, he said he could not recall impulse control being a major issue. He gave evidence that the major issue was the applicant’s concentration, noted since he was six, which he attributed to the dyslexia and dyspraxia.136 167 It was suggested to Mr Chattaway that the school reports showed an ongoing theme that the applicant had trouble applying himself and was a disruptive influence on others within the school environment. When asked if he agreed with that, Mr Chattaway said:137 A. I wouldn’t say that. There was one or two instances, about one or two teachers who said that. There were other teachers who said something completely different and gave a completely different thing ... 168 Mr Chattaway gave evidence that if the school reports were properly analysed, the positive comments far outweighed the negative. He described there as being a ‘stream of positive reports’, with ‘80% of the reports positive and 20% to 10% negative.’138 169 When asked if there were reports from the school describing concentration problems, Mr Chattaway acknowledged there had been such reports but said, ‘at the time he’s in Year 10, there isn’t any complaint.’139 When he was directed to Dr Lamb’s report prepared in 2009 (that is, Year 11), wherein he described the teachers as reporting the applicant’s concentration span was inadequate, Mr Chattaway acknowledged that may be true, but said, ‘I mean, his academic work, by the time you reach Year 10, if you read the mental reports, is perfectly adequate.’140 170 In cross-examination, it was suggested to Mr Chattaway that as at the middle of 2009, Year 11, the applicant was struggling at school. Mr Chattaway disagreed. He said:141 A. I wouldn't say struggling at school. I mean, he got a blended TER of 84%. I think you would hardly call that struggling. I mean, it's in the lower A grade of every person in the South Australian State. If you were saying that Nicholas was struggling, you would have to say every student in South Australia was struggling. 135 T 962.28-32. 136 T 1052.4-13. 137 T 1064.25-28. 138 T 1065.35-36. 139 T 1052.18-19. 140 T 1053.1-4. 141 T 1055.26-31. -- 48 of 496 -- [2026] SADC 27 43 171 When it was suggested to Mr Chattaway that his response to the question related to the position in 2010, rather than 2009, Mr Chattaway said he did not think the applicant had any behavioural issues at all in Years 11 and 12.142 As to the applicant’s academic performance, he said:143 A. Mr Swan, I don't believe that his academic grades were, at any stage, showing in the sense that you are putting it forward, that Nicholas was struggling. I think his academic grades in year 11 were C, B and that's not struggling in the totality of the South Australian education system. Q. So if Dr Lamb reported in June 2010 that Nicholas was now in year 12 but is struggling, you would say that Dr Lamb was wrong. A. No, Dr Lamb is making a judgment about Nicholas. Q. That's what I'm asking you. A. He is saying that Nicholas, who is highly intelligent and very academic, is struggling compared to his own ability. He's not saying that Nicholas is struggling in comparison with the cohort of people in South Australia. It's two entirely different kettle of fish. You are taking opinions about Nicholas and Nicholas, himself, and trying to cast them into the wider cohort of South Australia and it doesn't work because Nicholas is getting grades, and he achieves a TER that is way in excess of the cohort of people in South Australia. Q. I didn't ask you anything about the cohort of people in South Australia. My questions were directed to Nicholas and I asked you if Nicholas was struggling and you said 'no'. A. Not in terms of the vast majority of people, no. He was struggling in terms of the fact he was a highly intelligent individual and he was having problems with dyslexia and dyspraxia and always would have. Q. Do you now agree that he was struggling. A. Compared to what he could achieve, but not compared to the cohort of people in South Australia. 172 When Mr Chattaway was directed to Dr Lamb’s letter dated 19 June 2010, wherein he stated that the applicant was ‘struggling’ and that the ‘difficulty of the work itself may be slightly beyond his abilities’, Mr Chattaway gave the following evidence:144 Q. So when Dr Lamb says in the second paragraph of his report of 19 June 2010, that 'Nicholas is now in year 12, but is struggling', you say that's a ridiculous statement, do you. A. No, I don't, I say that Dr Lamb is actually making a quite reasonable statement about Nicholas's ability within terms of Nicholas. Nicholas is highly - a highly intelligent individual and he's struggling to achieve his optimum performance, and Nicholas 142 T 1056.16-17. 143 T 1056.27-1057.20. 144 T 1059.9-32. -- 49 of 496 -- [2026] SADC 27 44 could have achieved well beyond a TER of 82 to 84. He could have achieved a TER of 96 or 100, had he so chosen and actually done his work, but he didn't. So Dr Lamb is making a statement about Nicholas's performance, in terms of his own ability. Q. And when Dr Lamb says 'The special needs teacher assists him, but the difficulty of the work itself may be slightly beyond his abilities', do you suggest that's a ridiculous statement. A. Well, I would say that he achieved a TER of 82 to 84% and that he was on continuous assessment throughout the year and that, it's hard to say - it's hard to characterise that as struggling and failing. I don't know what judgment has been made to come to these conclusions. 173 The applicant acknowledged that he had always had problems with concentration. He said, ‘Yeah, I’ve got dyslexia’.145 When it was suggested to the applicant that dyslexia did not affect his concentration, he gave the following evidence:146 A. Dyspraxia does and dyslexia does effect it, dyslexia does effect your concentration, that's wrong to say that, because you have to use more of your concentration than someone else to keep up ... Q. Well, that's so if you're reading something for example but - A. When you're at school you're always reading. Q. It was a consistent theme I suggest to you of your school reports that you struggled with your concentration and your organisation, do you agree with that. A. It absolutely is true. Q. To the extent that in year 12 you were started on a GP management plan to improve your concentration and performance at school, you remember that. A. Yes, it helped. Q. Part of that plan to improve your concentration was taking Ritalin. A. Yes. 174 In Year 12 (2010), the applicant studied five subjects – Biology, Economics, Geology, Mathematical Applications and English Communications. 175 Only some of the school reports for that year were in evidence. These showed that during Term 1, the applicant was involved in the Second VIII Rowing Team and the Exploration Society and during Term 3 he was involved in Rugby.147 176 Mrs Chattaway gave evidence that the difficulties the applicant had in terms of applying himself to his studies, were because of his dyslexia. She said the 145 T 1382.17. 146 T 1382.19-37. 147 Exhibit R42 at pp 44-54. -- 50 of 496 -- [2026] SADC 27 45 applicant was committed to his studies in Year 12, so much so that he did some revision courses during the spring break.148 As a result she recalled the applicant had done well in Year 12. When asked what his results were, she said:149 I think it was a mark around 83, I think he got some extra marks for doing a science subject because he was going to UniSA and they awarded an extra mark. 177 The applicant gave evidence that he did not have any difficulties with his studies during Year 12 and that he had attended study camps during the holidays.150 He said that notwithstanding he thought sport was more important than studying, he achieved ‘a TER in the 80s, so 83 is a credit’.151 He said, ‘I pulled it together when it counted.’152 He explained that he had some issues with submitting work on time at the start of his schooling but said this got better as time progressed. He explained those difficulties on the basis that he was doing more sport than a lot of others and was taking his sport quite seriously.153 178 The applicant recalled being given additional breaks during exams because of his dyslexia.154 He said he got ‘top marks for … I think English Comms, I got 19-and-a-half, other subjects, I did very well. Then it’s scaled back, English Comms, with other things’.155 Later, he gave the following evidence:156 A. So, your Honour, it was better to perform at the end of the year than at the beginning because of the scaling. So, because I pulled through with high marks at the end of the year, my scale went up, not down, instead of people who thought that they would really well at the beginning of the year and lost the boil or would perform the best they could and then fail at the end of the year, with a high mark, so, I did really well. I did really well. 179 He said he received an ATAR of 83.157 180 Mr Chattaway gave evidence that the applicant ‘obtained a blended average of 82 – 84 on his SACE, which by any stretch of the imagination is a lower A student’.158 181 The applicant’s South Australian Certificate of Education confirms that the applicant’s final Year 12 results were:159 Biology 15 B High Achievement TER 15.5 148 T 964.14-17; T 964.34-965.2. 149 T 891.36-38. 150 T 1210.4-11. 151 T 1235.27. 152 T 1235.12-37. 153 T 1244.2-38. 154 T 1236.8-27. 155 T 1238.1-4. 156 T 1243.3-11. 157 T 1255.2-10. 158 T 1024.33-35. 159 Exhibit P52. -- 51 of 496 -- [2026] SADC 27 46 Economics 15 B High Achievement TER 16 English Communications 18 A Very High Achievement TER 16.5 Geology 12 C Competent Achievement TER 12.5 Mathematical Applications 13 C Competent Achievement TER 13 182 The Certificate confirms the applicant achieved an ATAR of 77.40, with the combined Tertiary Entrance Points (TER) for each of his five subjects being 67.25.160 183 The applicant gave evidence that the ATAR listed on his Certificate (77.4), was ‘minus the additional markings for sciences’.161 184 During cross-examination, the applicant confirmed that he moved out of home for a short period during the Year 12 exams. He denied that this was because of conflict with his brother, William. Rather, he said he left home as he was interested in a girl and stayed at her house for a week.162 Extra-curricular activities 185 The applicant gave evidence that he was involved in several different sports while at school. He said that he started playing AFL in around Year 5 or 6 and in Year 8 had started rugby, swimming, water polo, rowing, hiking and rock climbing.163 He said that he continued to participate in all of these activities during high school.164 186 The applicant gave evidence that during Years 11 and 12, he was training six or seven days a week for rowing, which was intensive and difficult. In addition, during Years 11 and 12, he would train for rugby two times a week.165 187 He gave evidence that he competed in three races for the first eight in rowing and otherwise competed in the second eight. However, he claimed his ability to keep his split below 58 seconds for the 2 km trial on the Ergo was such that he was recommended to join the Australian Olympic team.166 188 The applicant said that he was in the first-grade rugby team and occasionally performed the role of vice-captain. He was in the second and third grade AFL team.167 160 Ibid. 161 T 1329.33-37; T 1386.24-31. 162 T 1381.1-11; T 1395.5-1396.6. 163 T 1210.12-1211.34. 164 T 1212.22-25; T 1213.22-24. 165 T 1213.25-36. 166 T 1217.18-35. 167 T 1218.9-19. -- 52 of 496 -- [2026] SADC 27 47 189 The applicant gave evidence that he was ‘the captain of swimming team, water polo team during the summer carnival’, which also involved training once a week.168 He later clarified that he was captain of both the house swimming team and the house water polo team in 2010, (not the captain of the school team for those sports).169 190 In addition, the applicant gave evidence that he was a member of the Exploration Society from Year 8 to Year 12 and it was through his involvement in this group that he undertook hiking and rock climbing activities and went on several trips/camps.170 He achieved a level of proficiency in rock climbing at the top of the intermediate range (18).171 He said he was the captain of the Exploration Society and was involved in planning for a hike which was to take place in New Zealand in January 2011, where he was to have a leadership/supervisory role.172 Mrs Chattaway gave similar evidence.173 191 The applicant explained that when he was at high school, he had some difficulty getting his work done on time because he was doing more sport than most people, getting up at 4:00am each day and taking that quite seriously.174 192 Mr Chattaway gave evidence that the applicant was always extremely athletic and very fit. He said he enjoyed sport more than anything.175 He described the applicant as being motivated by athletic achievement and sporting achievement. He said the applicant was ‘captain of swimming and ran the swimming team’, had held leadership positions in the Exploration Society since at least Year 10, played water polo and during Years 10 to 12, and rowed six days a week.176 193 The applicant also attended the Blue and White Ball in September 2010.177 194 The St Peter’s College 2010 Magazine recorded the applicant’s achievements in the secondary school as including:178 Prep. Farrell 06-10; SACE Year 12 2010; Australian Economics Competition Distinction 10; Rowing 2nd IV 09, 2nd VIII 10; Rugby 10A Vice Captain 08, 1st XV 10; Water Polo 10A 08; Exploration Society 09-10. 195 Of note is that another student, BC, had listed achievements including: 168 T 1215.7-14. 169 T 1216.36-1217.11. 170 T 1223.30-1224.7; T 1228.24-1230.2. 171 T 1226.32-1227.6. 172 T 1231.12-1232.8. 173 T 892.10-33; T 893.22-28. 174 T 1244.12-37. 175 T 985.5-6. 176 T 989.13-23. 177 T 891.22-31; Exhibit P53. 178 Exhibit P50 at p 2. -- 53 of 496 -- [2026] SADC 27 48 … Exploration Society 09-10, Captain 10 … 196 The documents confirm that the applicant was the Swimming Captain for Farrell House in 2010 and was awarded ‘Symbols’ in 2010 for his involvement in the Exploration Society. 179 Medical/health issues 197 Prior to the incident, the applicant was a patient at the Arkaba Family Practice, where he generally consulted Dr Angas, General Practitioner. Extracts from the records of that clinic are in evidence.180 198 Those records reveal the following relevant medical history: • In July 2005, when the applicant was aged 12, he fractured his left radius/ulna during a school skiing trip, which required the application of a plaster cast.181 • On 8 August 2005, Dr Angas recorded a history that the applicant ‘can get a migraine H/A every 3 week – 4 weeks’ and could vomit with them. These were treated with Maxolon and Nurofen.182 The applicant continued to suffer migraines through his teenage years, with attendances specifically for migraines in June 2006183 and in February 2008.184 • In February 2006, the applicant was hit in the head by a surfboard at Victor Harbor and required sutures.185 • In March 2008, the applicant injured his right anterior cruciate ligament (ACL) playing rugby for which he required surgery (a right ACL reconstruction) undertaken by Dr Clarnette on 8 April 2008.186 It appears the graft was stretched following an incident at school.187 As such, the applicant underwent a second right ACL reconstruction on 12 June 2009. As a result, the applicant was unable to participate in Physical Education lessons during Year 10 or to play any school sport during Year 11. However, it appears that this injury did not prevent the applicant from being involved, at least to some extent, in the Exploration Society during 2009 or participating in rowing in late 2009. The applicant was also able to participate in house water polo.188 • In May 2009, the applicant required surgery to his left middle finger at the Women’s and Children’s Hospital (WCH), following an accident at home when he put his left hand through a pane of glass. The WCH notes record a history that the applicant, ‘hit window after argument with brothers …’.189 179 Exhibit R42 at pp 111-112. 180 Exhibit R42 at pp 391-486. 181 Ibid at p 408. 182 Ibid at p 409. 183 Ibid at p 407. 184 Ibid at p 405. 185 Ibid at p 408. 186 Ibid at p 405. 187 Ibid at p 404. 188 T 1383.19-1385.8. 189 Exhibit R42 at p 186. -- 54 of 496 -- [2026] SADC 27 49 199 The applicant gave evidence that this incident occurred when he was in Year 11, at home, just talking to his family. He said he had not been engaging in any particular activity before this and had just been talking to his brothers about sport. He leant on the window and lost his footing. His weight went through the window and his hand went through with it.190 He described his finger as being in half.191 He denied having punched the window or broken it deliberately.192 200 Mrs Chattaway gave evidence-in-chief that this incident occurred when William had a friend staying with them. She said William was being silly and chased the applicant through the house. As the applicant ran past her in the kitchen, he slipped and put his hand through a pane of glass in an internal door.193 She had not heard any argument prior to the accident.194 201 Mr Chattaway gave evidence that he was in the house when this incident occurred. He said the applicant was being chased by one of his brothers, or they were hosing around, and the applicant put his hand through a square pane of glass in the kitchen. He described them as being ‘all very apologetic’ when it happened.195 Relationships 202 The applicant gave evidence that when he was at high school he socialised with a particular group of friends and named three of those friends. He said he also socialised with friends with whom he played sport, but who went to different schools. He could not remember who those friends were. He said:196 I can’t tell you. I don’t know. That was 11 years ago. 203 The applicant said he socialised with his school friends outside of school. When asked what sorts of things he did with his friends, outside of school, in the last few years of high school he said:197 Drink a couple of beers, watch the footy, see some girls. 204 He said he was not going out that much because of sport. He had a full diary, and his focus was on rowing.198 205 When asked to describe his social interactions with others in his final years of high school, the applicant said:199 190 T 1318.36-1319.14. 191 T 1319.29. 192 T 1320.1-6. 193 T 891.2-10. 194 T 955.31-956.8. 195 T 1017.20-1018.2. 196 T 1256.34-35. 197 T 1263.30-31. 198 T 1264.11-17. 199 T 1266.34-1267.6. -- 55 of 496 -- [2026] SADC 27 50 A. Very sociable, had a lot of friends, was - had become quiet but not like in a bad way, just a lot more thoughtful. I felt like I was going somewhere before all this happened. Q. Sorry, did you say you felt like you were going somewhere before all of this happened. A. Yeah, I felt like in my head, in my mind that I was mindful that I was in a sort of a Zen state of mind, and that, yeah, all of this with the beating, with the brain damage from the bottling really just messed all it up. 206 When asked if he had a girlfriend at high school, he said he had two. One was a girl called Bella, who he dated for about three months at the end of Year 12 and the other girlfriend was Nicky, who he saw for about three months in Years 11 and 12.200 207 Mrs Chattaway gave evidence that the applicant had a large circle of friends while at St Peter’s, who regularly visited the family home to play computer games and sometimes came for a gathering to swim in the pool.201 She was unaware of him having, nor had she met, any particular girlfriend.202 She agreed with a proposition put to her that she did not ‘get introduced on a daily basis to everything (the applicant) was doing’, being consistent with him growing up and becoming more independent.203 208 Mr Chattaway described the applicant as being ‘extremely gregarious to an extreme’ before the incident.204 Alcohol/drug use 209 The applicant was unable to say when he first drank alcohol, but his best guess was that it was when he was 16. He said he would keep it to between one to four drinks, because of his sporting commitments.205 He said:206 Because anymore than that you’d have a hangover and it would affect fitness and performance to the rowing club. 210 He said he drank light beer, Heineken and Peroni.207 211 The applicant denied ever taking drugs. He said he had never touched drugs and had never smoked or taken cannabis. He said he ‘couldn’t afford it, didn’t 200 T 1264.21-1265.28. 201 T 916.36-918.32. 202 T 888.24-28. 203 T 915.14-25; T 916.28-35. 204 T 991.29-32. 205 T 1267.24-38. 206 T 1268.1-3. 207 T 1268.7-9. -- 56 of 496 -- [2026] SADC 27 51 know where to get it.’208 He denied taking any other drugs such as pills, ecstasy or amphetamines, or prescription drugs.209 212 The applicant was shown an extract from the Royal Adelaide Hospital (RAH) notes and specifically an entry in the Inpatient Progress Notes made by Dr Symon on 17 October 2012. The notes recorded:210 D + A past binge alcohol use No current ETOH use Past THC use. Last use mid this yr. (3-4/12 ago) Fr a period at 16-18 yrs of age. Up to an ounce a week. Up to 10 x /day. No other illicits. 213 The applicant said he did not believe this history was accurate, he did not recall giving that history and he was mentally ill at the time. He gave the following evidence:211 Q. The next sentence suggests that you used cannabis for a period at 16-18 years of age; up to an ounce per week; up to 10 times per day. A. Sorry, that's not possible. That's a massive amount of marijuana. There is no way I could be smoking that amount. That's ridiculous. As I said I was psychotic when I made the statement. None of that's true. Do you know what - Q. How do you know that's a massive amount of marijuana, Mr Chattaway. A. Well, there's no chance I could have been doing that because I couldn't have afforded it. I could not afford it. It's way too much - that's a massive amount. Q. How much did marijuana cost in 2012, Mr Chattaway. A. I don't know, I'm not a drug dealer am I. Q. I beg your pardon. A. I said I don't know. It's not my area. Q. Did you purchase marijuana in 2012. A. No. 208 T 1268.22. 209 T 1268.27-32. 210 Exhibit R42 at p 325. 211 T 1390.13-1392.3. -- 57 of 496 -- [2026] SADC 27 52 Q. I suggest to you that that is an accurate recording of the history that you gave and the history was correct. A. Okay. This is untrue and as yet unproven. It's hearsay when I was psychotic and being lured; and what's the word for it - having him control the conversation. And you know what people mentally incompetent at the time and affix this statement that doesn't make any sense. As I said you know 'Chinese whispers'. This is ridiculous. Q. Do you recall - A. Why is - Q. Have you finished your answer. A. Well, I imagine an ounce of marijuana is around $400 per ounce - just as a guess. So, how could I have afforded - I couldn't even buy a packet of cigarettes. How could I have afforded $400 per week, when it's - this is just rubbish. Q. Do you recall - A. Marijuana doesn't cost - marijuana costs a lot of money. Q. Do you recall seeing a forensic psychiatrist - A. It's a prohibited drug. Do you think you just pay that with a few copper coins? 214 Mrs Chattaway gave evidence that she had never seen the applicant taking drugs and denied that he had been using cannabis in 2009.212 215 When Mr Chattaway was asked if he was aware the applicant was using marijuana, he gave the following evidence: 213 A. Nicholas didn't use drugs. Nicholas was a rower, he had a heartbeat of less than 60 and he was training three days a week. Sorry, six days a week. He was really really - when he wasn't rowing, he was swimming and doing water polo. He was very in to physical fitness. Marijuana, which is what you've suggesting, slows down your ability to be able to row and swim and react physically and I don't believe for one second Nicholas was using marijuana because he was, he was into physical fitness and his performance on the rowing field. Q. So if he told Dr Rowe that he had smoked marijuana and smoked dope as a painkiller, the amount he smoked he slowly built up, built up a massive tolerance, that would be untrue, would it. A. Well he probably also told Dr Rowe that I raped him and I can say for a certainty that's untrue. Q. I was only asking you about the drug taking for a moment, so you're saying that's untrue? 212 T 954.1-10. 213 T 1061.2-34. -- 58 of 496 -- [2026] SADC 27 53 A. What, drug taking? I wouldn't imagine - well, first of all, how could Nicholas have been taking drugs? He was in China until January and it's a death penalty to consume or buy drugs in Xian. So there was no way he could be taking drugs in Xian; and when he returned back, he was certainly not able to financially, or indeed emotionally to take drugs until when he saw Dr Rowe in April. He says these things, or said these things in order to try and explain what's happening to him. He's starting to suffer. He has more than started to suffer, he is suffering psychotic delusions. I don't think that any of the testing of Nicholas and I don't think Dr Rowe believes that he is in the slightly possibility that there was anything to do with drug-related illness ... 216 When asked about drug taking during the period prior to the applicant going to China, Mr Chattaway gave the following evidence:214 A. He was a rower. He was up every morning at six. He was six days a week at the rowing. There was no way that - I mean they had to sign - they had to make an agreement that they weren't going to drink alcohol with the teacher, before they entered into the first and second - the very idea of taking drugs, no. Q. He didn't stick with the agreement about not drinking alcohol, did he. A. I think that during the rowing season, the answer is yes. 217 The school rowing season concluded with the Head of the River Regatta held in about March 2010. The applicant had not rowed, on the water, thereafter.215 Mental health 218 Mrs Chattaway was asked to describe the applicant’s mental health up until the date of the incident. She gave the following evidence:216 A. It was very good, he was very positive about life, sort of optimistic about his future, happy, very good, a good circle of friends, got on well with his brothers, got on well with his father and I. Q. Had he had any need for mental health treatment, in any of the years prior to this incident. A. No, he hadn't. The Party Uncontroversial matters Invitation/guest list 219 On Sunday 5 December 2010, the applicant attended a joint 18th birthday party for Owen Stankiewicz (Owen) and Kelly Pigot (Kelly) at the premises. 214 T 1063.12-21. 215 T 1063.36-1064.5. 216 T 892.3-9. -- 59 of 496 -- [2026] SADC 27 54 220 The applicant met Owen through their mutual friend, Terrence (Terry) Wilkinson.217 Owen completed Year 12 at Scotch College in 2010. Owen’s friendship group included others who had attended Scotch College with him, together with a wider circle of similarly aged friends from St Peter’s, PAC and Seymour College. 221 The party was held after the end of the Year 12 exams and after ‘Schoolies’. Owen’s parents, the third and fourth respondents, only wanted people who were known to Owen or Kelly to attend the party and they wanted some idea as to numbers prior to the party. The third and fourth respondents were sociable people who had held several parties and gatherings (smaller parties) at the premises. 222 Owen and Kelly created an invitation for the party, distributed via Facebook. They were both administrators for this ‘Facebook event’ and could each manually add invitees to the event.218 This was a private invitation, meaning that only those who were invited would be able to see the invitation on their Facebook profile.219 The invitation could not be forwarded to others.220 223 The invitation stated:221 Hey guys, To celebrate the recent transition into adulthood (any excuse for an event really), Owen and Kelly have decided to host a party :D Technically Owen is hosting the party, but that is not the point. The point is, a delectable BBQ dinner will be provided. BYO drinks, bathers and chairs if you have any because otherwise they’ll by hypothetical imitations and this is not terribly preferable. We promise a party more interesting that the cricket, and since this isn’t a challenge we hope to see you all there! 224 Included in Exhibit R31 is a list of the names of various party invitees (the invitation list). This printout was downloaded after the party. Neither the applicant’s name nor Lloyd’s name is on that list. Dunn-Lawless was on the invitation list. 225 Both the first respondent (Lloyd) and second respondent (Dunn-Lawless) attended Scotch College. Dunn-Lawless was invited to the party by Kelly.222 226 Owen gave unchallenged evidence that if a person deleted their Facebook account, that person’s name would no longer appear on the guest list for that 217 T 633.32-634.4. 218 T 636.37-637.13; T 638.23-27. 219 T 639.25-30; T 640.33-35. 220 T 640.36-641.3. 221 Exhibit R31 at p 1, noting this document was downloaded some time in 2014, T 698.22-27. 222 T 317.28-31; T 347.29. -- 60 of 496 -- [2026] SADC 27 55 event.223 He also gave unchallenged evidence that the applicant had deleted all of his social media pages sometime after the incident, which therefore explained the absence of his name on the invitation list. 227 The invitation list includes the names of those who were invited and their status; that is, whether they were ‘Going’, ‘Maybe’ or simply ‘Invited’. There are 104 names on the invitation list. Of those 104, a total of 79 invitees were recorded as ‘Going’. A further 14 people had indicated that they were a ‘Maybe’. 228 Most of the invited guests had just completed Year 12. As such, many of the guests had turned 18 or were 17, shortly to turn 18. The applicant was still 17, as his 18th birthday was not until 1 February 2011. This was one of many 18th birthday parties that this cohort had attended during that year. Party details 229 The invitation stipulated that the party was to commence at 4:00pm and was intended to conclude by midnight. 230 The third and fourth respondents (the hosts) were at the party for its duration. Their adult friends, Tim and Keryn Allan, also attended the party. 231 The number of guests in attendance fluctuated from time to time during the party. The evidence from the various witnesses differed as to the maximum number of people who were at the party at any one time. Those estimates varied from a maximum number, at any one time, of between 20 to 30 (according to Dechlan Heames and Nick Eckert) to between 50 and 60 (according to Owen Stankiewicz).224 Party set up 232 One would assume that some photographs were taken at the party, given it was a joint 18th birthday celebration. However, there were no such photographs in evidence. Owen gave evidence that he had searched for but could not find any photographs of the party.225 233 The Court did not have the opportunity to conduct a view of the premises. 234 The third and fourth respondents sold the premises in about 2012.226 There were photographs taken of the premises at the time of sale which were said to be (largely) indicative of how the premises appeared at the time of the party.227 223 T 643.4-8. 224 Noting that in Owen’s police statement he also estimated there were around 50 to 60 guests at the party at about 7:00pm (Exhibit P9 at [3]). There was no oral evidence from Owen as to his recollection as to the maximum number of guests at any point in time at the party. 225 T 672.21. 226 T 570.10-12. 227 Exhibit P2; T 570.19-25. -- 61 of 496 -- [2026] SADC 27 56 235 The premises comprised a double fronted cottage, with a rear extension and a pool, adjacent to a covered pool shelter, on a 696 sq/m block.228 The rear of the premises faced west. The party was held in the backyard of the premises, with the front section of the house primarily closed off for the party. 236 Entry to the party was via a driveway/carport on the northern side of the house and then a small gate to access the back yard. 237 To assist the various witnesses to describe where various events occurred, they were shown an aerial photograph of the premises, overlaid with a grid (the grid).229 Although there is a legend on the grid, the Court was informed that the legend was not to scale. However, the premises occupied 696 sq/m, with the north and south boundaries measuring 45.72 m in length and the west and east boundaries measuring 15.24 m in length.230 When considered in conjunction with those measurements, the grid assists the Court to have some understanding of both the size of the backyard and the distance between various locations within the backyard. 238 As is apparent from the grid, the pool extended to the west along the northern side of the back yard. There was an extension at the rear of the house, on the southern side of the premises. Beyond (and to the west) of the extension, adjacent to the pool, was a grassed area. There were several bushes along the southern (side) fence in the back yard and some trees and bushes adjacent to the rear (western) fence. 239 Inside the house there were two bathrooms that were to be available for guests to use, one off the kitchen and one off the hallway opposite the French doors under what was a vine covered pergola.231 240 There was evidence led that during the party, instead of coming inside to use the toilets, the boys were urinating in (various) bushes or trees in the backyard, near either the southern or western fences. 241 During the party, most of the guests were congregated either under the pool shelter (where there was a table and chairs) or under the vine covered pergola adjacent to the rear extension. Some guests (including the applicant) spent time swimming in the pool. There was recorded music playing. There was no band or dance floor. 242 There was also unchallenged evidence that there was a table with some chairs set up on the grassed area of the backyard, for guests to sit at. This table and its precise location and set up (and the visibility at and around that table) was a focus 228 Exhibit R37. 229 Exhibit P29. 230 Exhibit R37. 231 T 571.35-37; T 572.2-8. -- 62 of 496 -- [2026] SADC 27 57 of the evidence at trial. This was the only table specifically set up on the grassed area. 243 The hosts provided ice in containers which were positioned in the backyard. There was a dispute as to precisely where those containers were located and whether alcohol (or only soft drinks and water) was provided by the hosts for the general consumption of guests. 244 The hosts provided food, including food cooked on a BBQ. 245 The kitchen overlooked the backyard. Immediately adjacent to the kitchen was a living area with glass doors leading to the pergola. When it became dark, the lights were on inside the house. While the evidence of the witnesses slightly varied in terms of the status of the lighting in the backyard, there was unchallenged evidence that during the party, the backyard was lit, at least, by the pool lights, lights under the pool shelter, a floodlight under the pergola near the French doors and a floodlight located at the north-western corner of the extension which faced north-west. 246 There is no dispute that: • There was no ‘security’ as such on the gate or at the entry of the driveway to monitor who was arriving at the party or what they had brought with them (ie alcohol). • Neither security guards nor designated adults were maintaining a continuous patrol of the back yard to monitor guests’ behaviour. • There were no steps taken to restrict the consumption of alcohol at the party to only those who were aged 18 or over, or to monitor the level of alcohol consumption by guests. The applicant - Nicholas Chattaway How did he come to be at the party? 247 The applicant gave evidence that he met Owen about six to nine months before the incident through people he met at school (St Peter’s).232 248 He gave evidence that prior to the party he had been at the house of a friend, Terry Wilkinson.233 He denied consuming any alcohol before the party.234 249 The applicant recalled arriving at the party between 4:00pm and 5:00pm. He estimated there were 40 to 50 people at the party when he arrived.235 He said 232 T 215.8-17. 233 Terry Wilkinson was recorded as an invited guest on the invitation list, with the recorded status as ‘Going’. 234 T 217.28-30. 235 T 217.20-24; T 217.31-37. -- 63 of 496 -- [2026] SADC 27 58 this number steadily increased during the course of the night.236 As to the age of the guests, he said they were, ‘Underage, 17-year olds’.237 250 He recalled there being about five people drinking white wine and champagne in the kitchen who he described as being in their mid-50s.238 He recalled meeting Owen’s parents at the beginning of the night.239 251 The applicant gave evidence that there was food provided but he could not recall what food he ate, instead suggesting the Court refer to what he said in his police statement.240 He had no recollection of seeing any of the adults preparing food either inside or outside but remembered Owen was cooking the barbeque.241 252 The food that was provided was located at G8 on the grid (ie under the pergola near the back of the house).242 253 As to the arrangements for drinks, he said:243 They had supplied alcohol, like wine and beer and vodka, esky and they had cruisers and stuff like that. 254 In cross-examination, the applicant refuted the proposition put to him that the guests were invited to bring their own alcohol and that no alcohol was supplied by the hosts.244 255 The applicant gave evidence that he brought six beers with him to the party and no one challenged him for doing so.245 He said:246 There was no security, the parents weren’t on the gate, Owen thought he was in charge, and really a very poor setup. 256 When asked to clarify what he meant by this he said:247 A. Well usually most house parties you get the parents on the gate to check who is coming in, don't you? Underage house parties the parents or someone is at the gate who can check who is coming in and make sure they're not gate crashers, make sure that there are no people that are not ... that's my ... house parties, yeah. Q. At this party was there anybody at the gate when you came in. 236 T 218.4. 237 T 218.20. 238 T 218.31-219.8. 239 T 219.13-16. 240 T 219.26-32. 241 T 261.14-30; T 262.14. 242 T 243.3-5. 243 T 219.38-220.1. 244 T 259.11-16. 245 T 220.12-33. 246 T 220.31-33, noting the word ‘poor’ is missing from the transcript but was said. 247 T 221.1-13. -- 64 of 496 -- [2026] SADC 27 59 A. No, there was not. Q. Did you observe anybody to be at the gate at any point during the party. A. There was no-one at the gate. 257 He recalled there being tubs of ice for people to put their drinks in. He did not see any water or soft drinks in those tubs, only alcohol.248 258 The applicant gave evidence that when he arrived at the party, the atmosphere was ‘pretty boring’.249 He did not really like a lot of the people there and he had gone as it was something to do. He said, ‘I was just keeping to myself and being polite.’250 Conversation about uninvited guests 259 The applicant was asked why Owen thought he was in control of the party. He said:251 A. Well, he attempted to kick out Jack Lloyd and Patrick Dunn-Lawless, and he didn't kick them out, he backtracked, he changed his mind, and then they assaulted me very seriously. So, that's why I think he thought he was in control. 260 When asked to explain the circumstances in which Owen had tried to kick some people out of the party, the applicant gave the following evidence:252 A. It's in my statement. Q. What we'll need you to do is to tell us out loud now what happened. A. It's a long time ago. He told them they had to leave. They refused to leave. They offered to fight me and Dechlan Heames, they threatened us, they said something about us being pussies and something about size, something of that nature. Then Kelly Pigot came out and said they could stay if they said there wouldn't be any trouble. Then I just wandered off to the pool and went for a swim for, like, a significant amount of time until I was assaulted. 261 The applicant gave evidence that there was only one such conversation and it had occurred at about 5:00pm. He wasn’t really paying attention at the time and was ‘keeping to myself’.253 He remembered some girls being there, Owen, himself, Dechlan Heames, Lloyd and Dunn-Lawless.254 262 The applicant gave evidence that Lloyd and Dunn-Lawless were asked to leave, ‘because they weren’t invited and they were being threatening towards me 248 T 260.15-23. 249 T 221.27. 250 T 222.6-7. 251 T 221.18-22. 252 T 222.10-21. 253 T 222.24-31. 254 T T222.36-223.1, T 223.18-20. -- 65 of 496 -- [2026] SADC 27 60 and Owen. They were unpleasant.’255 They had threatened him by calling him a ‘pussy’ for not throwing them out of the party and that he should have shown some balls and thrown them out forcibly.256 He described the conversation as hostile.257 263 As to how he became involved in this conversation, he said:258 A. Obviously I was wrangled into that situation because of my height and stature, and obviously Owen was thinking that, you know, he'd get the two largest people at that event to physically kick them out and yeah, it was just because of ... Q. When you say Owen came to get the two largest people at the event, was one of those two people you. A. Yes. Q. And who was the other one. A. Just Dechlan Heames. Q. How was it that he came, or that he got you to become involved in this conversation. A. I don't know, I can't answer that. It was his choice. Q. What leads you to say it was his choice. A. Because I didn't wander over there and ask them to leave. He said 'Can you come and help me get rid of these gate crashers, I want them out of the party' and that was that, you know, that was what was said. 264 Neither Lloyd nor Dunn-Lawless left the party. As to why they were allowed to stay, he said:259 A. I think he felt they were invited, and I think the girls at the party, they were influential to Owen, because he changed his mind. I think he felt threatened. I think they made him back down because he was scared of them. I remember him giving them a very wide berth, the tone of his voice when he was speaking to them was sort of cowed, like it was sort of scared, sycophantic, I don't know. They scared him. 265 He went on to say, ‘(h)is mother came out when they were confronting him, and then Kelly Pigot argued for them to stay and that was that.’260 266 After this, he remembered going to swim in the pool with some girls. He said, ‘That’s all I did’. 261 255 T 223.8-9. 256 T 223.13-17. 257 T 224.24-27. 258 T 223.38-224.17. 259 T 224.30-37. 260 T 225.3-5. 261 T 225.11-12. -- 66 of 496 -- [2026] SADC 27 61 267 In cross-examination, the applicant reiterated that he heard Owen say to Lloyd, words to the effect of, ‘You’re not invited, I want you to leave.’262 He recalled Kelly saying he could stay. He gave the following evidence in cross- examination:263 Q. And that Jack Lloyd said that he was not there to cause trouble and that he apologised to Owen for his past behaviour towards him. Do you agree with that. A. I suppose so. Q. You did not participate in that discussion. A. No. Q. Patrick Dunn-Lawless did not participate in that discussion. A. I can't answer that. Q. And at the end of that discussion Jack Lloyd and Owen Stankiewicz stayed talking to each other amicably for about another half an hour. A. I wasn't aware of that. Q. I'm sorry, I didn't hear that. A. I wasn't aware of that, no. Q. Had you left and gone back to the swimming pool. A. Yes. Q. So that could have happened, but not in your presence. A. I can't answer that either. 268 He agreed that after the conversation, he thought any issue between Owen and Lloyd was resolved.264 269 When questioned by Dunn-Lawless, the applicant gave evidence that he saw Lloyd and Dunn-Lawless arrive together at the party.265 He said:266 Well I haven't conflated you entering at the same time. I say you both come in together, you went to the table at H4 in the garden, and you didn't want to introduce yourself to Owen. You were, I would say, a typical gate crasher, not introducing yourself to the host, and as a typical gate crasher you were asked to leave. 262 T 265.18-20. 263 T 265.29-266.10. 264 T 268.8-11. 265 T 287.25-27. 266 T 288.17-22. -- 67 of 496 -- [2026] SADC 27 62 270 He said that at no time was he planning on physically removing Lloyd and Dunn-Lawless from the party nor did he consider it a possibility that he may need to do so.267 Alcohol use by party guests 271 The applicant described there being a lot of alcohol at the party and was adamant that alcohol was supplied by the hosts. 272 He said he was drinking beer in the pool and leaving his bottle(s) by the side of the pool.268 He started drinking between 4:00pm and 5:00pm and had a total of six beers over the period of the party. He denied he drank any more than this.269 273 It was suggested to the applicant that Owen’s mother was quite adamant about not taking glass bottles into the pool. He disagreed with this, and said her concern was with people letting glass sink to the bottom of the water and shatter. He did not see a sign that said, ‘No glass in the pool area’.270 274 He remembered the girls going to the bathroom next to the kitchen and throwing up in there. He also observed a couple of people throwing up outside.271 275 In cross-examination, the applicant gave evidence that when he arrived at the party, he entered the house to introduce himself to Owen’s parents. He had no recollection of being inside the house on more than one occasion.272 He had not gone into the bathroom inside the house at any time. The boys were going to the toilet in some small bushes next to the fence at the back of the house (at H2 and I2 on the grid).273 276 However, when it was suggested to the applicant that he did not see any of the girls throwing up in the bathroom, he gave the following evidence:274 A. I did go in the lounge to speak to Owen Stankiewicz's sister with Owen and I did see girls throwing up in the bathroom and using the toilets. Q. Did you see into the toilets, how did you know they were throwing up. A. You could hear it. Q. Where was the bathroom. A. Next to the kitchen. 267 T 284.14-21. 268 T 263.5-6; T 293.17-23. 269 T 264.1-13. 270 T 292.28-293.16. 271 T 225.30-226.1. 272 T 260.24-28; T 261.4-7. 273 T 226.14-15; T 244.1-3. 274 T 269.14-31. -- 68 of 496 -- [2026] SADC 27 63 Q. And were you in the loungeroom or the kitchen. A. Pretty close to the kitchen. Q. Is that the only other time you went into the house. A. I can't answer that, I was in the house twice, maybe three times, that's all I can give you. Q. Do you remember at what time, roughly, in the party that you were talking to Owen's sister in the house. A. I can't answer that. Q. Early in the party, late in the party. A. I can't answer that. What were the adults doing? 277 The applicant gave evidence-in-chief that the only time he saw any of the adults outside was when Owen’s mother came out once to talk about beer bottles not being dropped in the pool, being seemingly inconsistent his earlier evidence at paragraph 265 herein. He was then asked the following:275 Q. So you mentioned this one time she came out to talk about beer bottles in the pool, and you also mentioned that she came out to speak about the people who were not welcome. Are those the only two times you remember her coming out. A. I don't think she spoke about it. I think she was sort of like, you know, yeah, I don't think she spoke about it, there was no speech, there was nothing. I mean like, you know, she just sort of agreed with the girls that they could stay and it wasn't really a problem ... Q. The conversation between Owen, Dechlan, yourself, Jack, Patrick and Owen's mother, where did that take place. A. It took place in front of the entire event. I didn't say a word during it. Q. Did it take place inside or outside of the house. A. It took place at the patio next to the steps of ... Q. That patio is outside of the house, is that right. HER HONOUR Q. Sorry was that yes. A. Yes. 275 T 226.32-227.13. -- 69 of 496 -- [2026] SADC 27 64 278 He did not recall any of the other four adults coming outside at all. He did not see Mr (Tony) Stankiewicz circulating through the party, cleaning up plates or glasses.276 He said:277 A. They were probably drinking more than most of the kids. Q. Where was it that they were doing that. A. The kitchen. Wine is stronger than beer, isn't it? Q. Mr Chattaway, just focus on where it was that they were doing that. You said in the kitchen. Did you observe them to be drinking in any other areas at the party. A. Well, there was a kitchen and then there was a lounge area so they were spending most of their time in the kitchen with the cheese platter, a significant amount of wine. 279 In cross-examination, the applicant gave evidence that he spent most of the night in the swimming pool.278 The applicant said he could see into the house from the swimming pool, through the window. When asked what he was able to see, he said:279 Well, I wasn’t particularly looking at the house. 280 In cross-examination, it was suggested to the applicant that there was no basis for his evidence that the adults at the party were affected by alcohol. In response, the applicant gave the following evidence:280 A. Apart from my witness statement saying that I saw them drinking alcohol. Q. Nothing you saw justifies your assertion that they were affected by alcohol. A. It does justify that they were affected by alcohol because they were drinking significant amounts of it. Q. You did not witness that did you, Mr Chattaway. A. Yes, I did. Q. When did you witness that. A. Probably when I was eating sausages and steak, walking into the house to chat to Owen's sister, watching them drink alcohol. Q. That's when you first arrived at the party. A. It's kind of irrelevant. 276 T 262.15-17. 277 T 227.35-228.9. 278 T 262.36-38. 279 T 278.4. 280 T 279.26-280.17. -- 70 of 496 -- [2026] SADC 27 65 Q. Can you answer it anyway. A. It's kind of irrelevant. It's my statement. Q. The observations you just referred to then were observations you made when you first arrived at the party. A. So if I went into the house two to three times and I could see through the window that they were drinking, are you saying that it's not probable they were drinking alcohol, or that they were affected by alcohol? Q. I'm asking you to answer my question, Mr Chattaway, which is that the observations you referred to - A. I'm trying to answer your questions. Q. The observations you referred to of the adults drinking you made, on your evidence, when you first arrived at the party. A. Mm-hmm. They were drinking alcohol. General party atmosphere 281 The applicant was asked generally about the atmosphere at the party prior to the incident. He described the atmosphere where he was, in the pool, as calm.281 He had no further interactions with Lloyd or Dunn-Lawless. There was nothing to suggest there would be any further trouble involving them or him.282 282 The applicant said that most of the people at the party were congregated either under the pool gazebo (at E7 on the grid), or under the pergola at G8 and G9 on the grid.283 He estimated that at its busiest, there were over 40, maybe 50 people at the party.284 Lighting 283 When the applicant was asked about the lighting in the grassed area of the backyard (grid reference G, H and I, rows 2 to 5) he said he was not in that area.285 In response to a question from me, he said:286 … I wasn’t in that area, I was in H3, H4, H5, I2, H2 and that was where the assault happened … I3, 4, 5 … the assault happened in H. 281 T 262.35. 282 T 268.17-22. 283 T 242.8-28. 284 T 263.22-27. 285 T 243.15. 286 T 243.18-20. -- 71 of 496 -- [2026] SADC 27 66 284 He described the lighting in that area as relatively poor and said it was not well lit.287 However, he would be able to see someone who was standing a metre away from him when he was urinating in the bushes at the back fence.288 The incident 285 The applicant gave evidence that the incident occurred at around 10:30pm to 10:45pm.289 Immediately prior to the incident he had been enjoying himself and had drunk six beers.290 286 When it was suggested to the applicant that he was moderately affected by alcohol at this time, he said:291 A. I can't answer that, I was lucid, I was sober, I spoke to my mum on the phone. Q. You weren't sober, I suggest, you'd had quite a lot to drink and you were somewhat affected by alcohol. A. I was still lucid. Q. Do you agree with me that you were affected by alcohol but you think that you were still lucid. A. I didn't agree with you that I was affected by alcohol. Q. Were you an experienced drinker at that time in your life. A. I don't exactly know what that means, sorry. Q. How many times had you drunk as much you did that night previously. A. I can hold my alcohol. Q. Does that mean you had drunk as much as you had that night on a number of occasions before. A. Yes. 287 The applicant gave evidence that he had been in the pool, talking to some girls, Alex Green and Courtney Barber.292 He got out of the pool to urinate at the back fence.293 Lloyd and Dunn-Lawless were sitting at an umbrella table (located at H4 on the grid) 294, drinking cheap champagne (or Passion Pop) and beer.295 287 T 243.22-29. 288 T 244.4-8. 289 T 218.12. 290 T 225.13-29. 291 T 268.30-269.8. 292 Neither Alex Green nor Courtney Barber were called to give evidence and there was no evidence as to why. Their names appear on the invitation list, each with their recorded status as ‘Going’. 293 T 228.32-37. 294 T 254.28-32. 295 T 220.17-20, T 230.13-19. -- 72 of 496 -- [2026] SADC 27 67 288 As he walked past the table, Lloyd and Dunn-Lawless were talking about some people at the party and making derogatory comments about them. The comments were directed towards Owen and Will Allen. As to what was said, it was, ‘Things sort of rubbish they were talking about, you know, pussies, this, that, you know.’296 289 The applicant remembered facing them and saying, ‘You guys should probably leave’. He then turned his back to them and walked a distance of about three metres to the fence to urinate.297 290 There were no other people sitting at that table at that time. He had seen some girls sitting there earlier.298 291 When the applicant was asked in cross-examination about what he had said as he walked past the table he said:299 A. I'd ask you to refer to my statement. Q. Well, I'm asking you the question, Mr Chattaway, I don't have your statement. A. What context are you asking this question? Q. The context is that you were walking past the table on the way to urinate at the back fence and my question was, did you say anything to them. A. Well, I stated yesterday they were making derogatory comments about Owen Stankiewicz and a friend of his and as I walked past I said, 'You guys should probably leave,' which is in my police statement. Q. What was your tone of voice. A. Just like how I said it. Q. So not aggressive or threatening. A. Not aggressive, no. Q. And did you walk off immediately then. A. Yes. Q. Did you regard what you said as provocative. A. Not really. 296 T 233.15-33. Will Allen was not called to give evidence. There was no evidence as to why. The name ‘Will Allen’ does not appear on the invitation list (Exhibit R31), however a guest by the name ‘Wilangowen McAllenwitz’ was invited and recorded as ‘Going’– there was no evidence as to whether this was, in fact, Will Allen. 297 T 234.4-18. 298 T 270.4-11. 299 T 270.14-32. -- 73 of 496 -- [2026] SADC 27 68 292 The applicant gave evidence-in-chief that while he was urinating at the fence, at H2 on the grid, Lloyd and Dunn-Lawless pushed him into the fence, causing him to urinate on himself.300 He said:301 A. I went to urinate at the fence. I was urinating. Jack Lloyd and Patrick Dunn-Lawless then pushed me into the fence while I was urinating. They walked off back to the table. I came out, was kind of bewildered, and then Jack Lloyd hit me in the nose with a champagne bottle, which shattered my nose and sent me unconscious. Would you like some more? Q. We'll go through it in a bit more detail. So between walking to the pool and the point in time you told us you were pushed did you see Jack Lloyd or Patrick Dunn- Lawless. A. Yes. Q. Where were they. A. They were at the table. As I started to urinate they came up behind me, pushed me into the fence. They went back to the table to get the bottles. (my emphasis) 293 As to what happened next, he said:302 A. I got up as he was over me, as I was unconscious, because he was about to hit me again. I ran up to him and tried to wrestle ... and Patrick Dunn-Lawless proceeded to attack me with his left hand using a beer bottle to my face. All the injuries consistently were to my face. Q. So you're wrestling with Jack and you said that Patrick has just hit you with a beer bottle. What happened next. A. I tried to put up my arms to block the blows. They hit me several times in the face. So many times that I lost count. In the end when I was bleeding I thought I was going to die and I could not longer lift my arms up to block the blows because they concussed me and damaged my arms so much that I couldn't lift them anymore so I was just swinging limply, trying to fend them off. 294 The applicant then gave the following evidence:303 Q. You said initially, after the first hit, you then said you got up and you were hit again. A. Yes. Q. Did you fall to the ground following that hit. A. No. No, I only fell to the ground - I fell to the ground when Jack Lloyd broke ... the bottle, Passion Pop, I don't know, it was a champagne bottle. It was excruciatingly painful. … 300 T 229.20-22; T 230.29-30; T 254.22-27. 301 T 229.20-35. 302 T 230.33-231.11. 303 T 233.2-9. -- 74 of 496 -- [2026] SADC 27 69 295 He said, ‘they almost beat me to death’.304 He said, ‘they chickened out on murdering me’, dropped the bottles and ‘ran away like cowards’.305 He said Lloyd and Dunn-Lawless had been standing in the area at G5 on the grid (that is, on the grassed area, immediately to the south of the pool) when they dropped the bottles.306 They then ran out the garage door.307 296 The applicant said he was first struck when he was in the area H3 on the grid (that is, on the lawn, in the back yard, but nearer the back fence than the house). He estimated the assault lasted for around five to eight minutes and after starting in H3, it moved to H4 (that is, still on the lawn but closer to the house).308 297 When asked how many times he was hit, the applicant gave the following evidence:309 A. Well the statement from Dr Pennington ... my statement I'd been hit multiple times consistent with the injuries, so I don't want to state how many times I was hit because I don't want put to me that I'm exaggerating the kind of injuries that I sustained. Q. If you just focus on the question for a moment. Are you able to say how many times you were hit or not. A. I can tell you it was probably more than five times. I don't really feel like answering the question because it's kind of personal cos I almost died. 298 The applicant recalled receiving blows to the back of his arms (which ‘damaged’ his arms) and being struck in the back of the head.310 He was adamant that he was only hit with bottles, one champagne bottle and one beer bottle, and not fists.311 299 The applicant gave evidence that in the immediate aftermath of the incident, he lost a lot of blood. He described crawling on the ground because no one came to help him. He said:312 I crawled through the garage, bleeding, losing consciousness, in and out of consciousness, till Dechlan Heames picked me up and helped me into a chair. 300 The applicant said he was at H5 on the grid (that is, on the lawn, near the very back of the house) when Dechlan came to assist him.313 The chair where he was seated was at G7 on the grid, that is, under the pergola. He stayed on that chair until he left in the ambulance.314 There were other people around him who he knew, 304 T 230.26. 305 T 232.4-9. 306 T 294.15-22. 307 T 235.36; T 296.33-37. 308 T 254.37-255.6. 309 T 232.14-23. 310 T 231.9; T 232.26-34. 311 T 232.35-233.1. 312 T 237.4-7. 313 T 255.18-24. 314 T 255.25-256.3. -- 75 of 496 -- [2026] SADC 27 70 who were crying. When asked who those people were, he said that he did not feel like naming them. He recalled his mother being there and both Ms Dansie (the third respondent) and ‘some woman that was drinking with’ Ms Dansie.315 301 The applicant gave evidence that he was able to speak but not coherently.316 He did not have any specific memory of saying anything to anybody, either while he was on the chair, or at any time immediately after the incident. 317 When cross- examined by Dunn-Lawless as to whether he had said anything after being struck, the applicant said, ‘I was incoherent, you almost killed me … I was severely concussed. I had a fractured skull.’ 318 302 He denied having told Dunn-Lawless he had been bottled, when he was getting up off the ground.319 303 He could not recall any exchange of words with Dechlan Heames.320 304 He maintained that he had been attacked without provocation. He had no reason to think that anything like this might have happened to him.321 305 The applicant denied receiving only two blows to the face.322 He said that he may have got in one punch himself, to Lloyd,323 but denied lifting Lloyd off the ground in a bear hug as they walked back to the table before the altercation (or at any other time) or throwing the first punch (and punches) at Lloyd, knocking a beer bottle out of Lloyd’s hand.324 306 The applicant disagreed that Dunn-Lawless had used his right fist to punch him in the face. He maintained that after Lloyd hit him in the nose with the champagne bottle, Dunn-Lawless struck him in the face with a long neck beer bottle which he had wielded in his left hand.325 What happened thereafter? 307 The applicant gave evidence that he was taken to hospital and then discharged on 7 December 2010. He recalled being examined by an emergency nurse at the RAH but could not say what he had told them had happened. He said:326 315 T 238.12-239.5. 316 T 237.34-35. 317 T 238.5-11. 318 T 291.34-37. 319 T 277.12-16. 320 T 292.11-16. 321 T 270.33-271.6. 322 T 272.26. 323 T 272.33-36. 324 T 272.37-273.2; T 275.34-276.21; T 286.12-17. 325 T 290.6-291.18. 326 T 273.16-18. -- 76 of 496 -- [2026] SADC 27 71 A. I was heavily concussed during that time, so I can remember, did remember, but at that time I was heavily concussed. I was non-verbal. 308 The applicant denied telling a doctor in emergency that he had been punched over the face and hit with a bottle over the nose.327 He strongly disagreed that he had said he had been hit with a fist. He said ‘I was under no confusion as to what I’d been hit with … I stated I was bottled.’328 He denied giving a history to a Dr Grave that included him being punched in the face.329 309 After leaving hospital, the applicant went to a police station to make a statement. He also remembered attending at Owen’s house with his mother and talking with Owen about what had happened. He said no one else was there at that time.330 He agreed that while they were at Owen’s house, they looked to see if any bottles had been left. He said:331 Owen had already cleared up all the bottles at the party. There were a few bottles, but he had already cleared it all up. Dechlan Heames332 The party – general observations 310 Dechlan Heames (Mr Heames/Dechlan) went to St Peter’s with the applicant and was invited to the party through his friendship with Owen.333 311 Mr Heames gave evidence that he drove to the party and arrived around mid to late afternoon to help set up.334 He brought ice and drinks in his car and helped set up the chairs and tables outside. At that time there was only a small group of close friends there helping to set up. He recalled speaking with some adults fairly early on, although he could not say who they were. He estimated there were a few adults, two to three maybe.335 312 To his knowledge, the party was ‘BYO’ and he recalled there being eskies outside for people to put their drinks in to keep cool.336 Party atmosphere/numbers/lighting 313 Mr Heames gave evidence that the guests for the party started arriving in the very late afternoon/early evening, around sunset.337 At that time, he described the atmosphere of the ‘Saints group’, who he was with, as largely positive, with there 327 T 273.26-29. 328 T 273.35-37. 329 T 274.11-13. 330 T 257.1-20. 331 T 296.1-3. 332 Mr Heames gave his evidence via video-link. 333 Exhibit R31; his status is recorded as ‘Going’. 334 T 167.18-29. 335 T 168.13-17. 336 T 168.29-37; T 169.9-10. 337 T 169.17-20. -- 77 of 496 -- [2026] SADC 27 72 being no issues within that group. He could not comment on the atmosphere outside of that group.338 314 Mr Heames estimated that the maximum number of guests who would have been at the party at any time during the evening was between 20 to 30.339 315 He had a recollection of having overhead conversations that there were people who had come to the party who were not invited but he could not recall who he heard saying this.340 He gave no further evidence on this issue. 316 Mr Heames was asked about this party in terms of its comparison to other parties that he had attended during Year 12. He said that he attended parties most weekends and agreed with a proposition that this party was ‘a pretty tame affair’ compared with others that he had attended during that year.341 He said:342 There was nothing at all to indicate that anything was wrong. This was on the smaller scale of some of the functions that we’d had, and it was on a Sunday, so there were noise restrictions as well. (my emphasis) 317 He had no distinct recollection of whether he had eaten food, whether anyone was cooking a barbeque outside, or whether there were adults outside on occasions, picking up glasses.343 318 Most of the party occurred in an undercover courtyard area at G8 on the grid. From that area, if looking towards the backyard, he could see the pool to his right and some of the backyard to his left. He said there was a light attached to the back of the house at H5 on the grid, with that light spilling into grid areas I4, I5, H4, G4 and G5.344 However, when it got dark and because of the number of people in the courtyard (pergola) and a lack of lighting, he would not have been able to see anything specifically in columns 1 to 4 on the grid (that is the grassed area at the back of the property and towards the back fence).345 319 He did not recall there being any dedicated light along the fence line to the back corner of the yard, such that the only light that illuminated that area was coming from the floodlight at H5.346 338 T 169.31-35. 339 T 170.1-2. 340 T 172.11-20. 341 T 188.26. 342 T 188.28-31. 343 T 169.23-24; T 187.7-188.1. 344 T 193.21-34; T 183.5-9. 345 T 183.1-7. 346 T 194.20-29. -- 78 of 496 -- [2026] SADC 27 73 320 Mr Heames recalled that there was a bush located on the map at I5 (that is, the southern side fence) which the males at the party were using as a bathroom.347 He described this area as semi lit.348 321 He also remembered there being a table on the ‘grassed area’ (albeit he described this table as being in G6 or G7 of the grid). He could not remember if people were sitting at that table during the evening.349 The incident 322 Mr Heames gave evidence that prior to becoming aware that the applicant had been injured, he had not observed or become aware of any conflict within his group, or outside of his group.350 323 He said that immediately prior to the incident, the atmosphere was positive, everyone was happy to be there and to celebrate. There were no problems that he could think of.351 324 No one appeared overly intoxicated, no one was ill or sick and everyone was just having a good time. Although alcohol had been consumed for a few hours by that stage, there was nothing untoward.352 He had not noticed the applicant to be overly intoxicated, nor was there anyone who was becoming overly intoxicated.353 325 Mr Heames did not witness the incident and was shocked and surprised to hear that it had occurred. He said:354 There were no indications that there was anything wrong within the group that I was with, nor was there a feeling of tension at all. 326 When he first learned of the incident, Mr Heames was in the courtyard area (that is, under the pergola) at about G8, facing the backyard.355 It was later in the evening and it was dark. He was not really paying attention to rest of the party as he was primarily engaged with his friends, however there was nothing within that immediate courtyard area that indicated there was a problem.356 327 He observed the applicant ‘walking’, or ‘staggering’, from the area marked H5 to G5, (that is, from the grassed area immediately adjacent to the pool towards the bricked area leading to the undercover courtyard/pergola).357 He described the applicant’s appearance as ‘airy or lightheaded’. He said he ‘was 347 T 175.10-19. 348 T 194.5-8. 349 T 183.15-32. 350 T 172.25-28. 351 T 181.1-8. 352 T 181.13-17. 353 T 190.29-32. 354 T 188.37-189.1. 355 T 182.16-28. 356 T 190.5-8. 357 T 177.1-8. -- 79 of 496 -- [2026] SADC 27 74 staggering, but slowly. He wasn’t moving with purpose.’358 He had blood coming from his nose.359 328 A group of people came to assist the applicant and placed him in a chair. He said the applicant ‘appeared bewildered’ and said that he had been hit. He could not recall whether the applicant gave any further detail, but he remembered him speaking.360 329 Mr Heames remembered the applicant sitting in a chair at G5 on the grid. However, he could not recall the events which occurred thereafter with any confidence and specifically, could not recall if at any time after the incident, the applicant was sitting in a chair in the carport area.361 330 After the incident, the atmosphere of the party shifted significantly. Although there was no open conflict, the St Peter’s boys were obviously concerned and some people were understandably angry.362 331 He remained with the applicant until the applicant left the party and then he caught a taxi home.363 Nicholas Eckert The party – general observations 332 Nicholas Eckert (Mr Eckert) was one of the invited guests at the party.364 He went to school at St Peter’s, where he was in some of the same classes as the applicant and played rugby and water polo with him. He knew Owen through Owen’s (now) wife, Alexandra. 333 Mr Eckert had a limited recollection of the party. 334 He gave evidence that he had been to a number of similar 18th birthday parties and that there was nothing unusual or dissimilar about this party to those others, up until the point in time that the applicant was injured.365 Other than what had happened after the incident, nothing really stood out in his mind about this party.366 335 Mr Eckert recalled that it was still light when he arrived at the party. There were approximately 10 to 20 people there when he arrived and he did not observe 358 T 177.19-20. 359 T 177.11-24. 360 T 177.29-32; T 178.23-26. 361 T 184.22-25. 362 T 180.7-20. 363 T 179.33-35; T 181.31-38. 364 Exhibit R31; his status is recorded as ‘Going’. 365 T 151.18-26. 366 T 151.7. -- 80 of 496 -- [2026] SADC 27 75 any conflict at that time. Everyone seemed to be getting along fine. It was a normal gathering.367 336 He was unable to recall whether there was any food served at the party but he could remember there being alcohol.368 He was unable to recall whether he brought his own alcohol or whether it was provided. However, he said that usually people would bring their own drinks to such parties.369 He could not recall how much he drank that evening.370 337 He estimated the maximum number of people there at any one time to be between 20 to 30.371 338 He could not recall whether there were any adults present, other than Owen’s parents. He could not recall what, if any, bathroom arrangements there were at the party and for example, he could not recall if the bushes in the backyard were being used by the male guests as a bathroom facility.372 339 Mr Eckert was asked whether at any time, he formed a view that there were people at the party that were not meant to be there. He said: 373 I can’t remember if someone spoke to me, but I think I may have overhead that maybe there was people trying to attend the party who weren’t invited. 340 Importantly, he could not recall observing any conflict between anybody at the party between the time he arrived and the time he became aware that the applicant had been injured, nor had he observed anyone acting in an overly intoxicating manner.374 The incident 341 Mr Eckert did not witness the incident. 342 He was standing between the carport and the backdoor when he first learned that the applicant had been injured.375 It was dark but he could not recall the exact time.376 343 He saw the applicant walking towards the backdoor from the garden, on the bricked area between the grass and the undercover pergola. The applicant was accompanied by someone who was supporting him and holding a towel over his 367 T 134.32-33; T 137.1-14. 368 T 136.10-13. 369 T 136.11-19; T 136.31. 370 T 154.13-17. 371 T 135.3. 372 T 140.20-26. 373 T 137.34-36. 374 T 138.2-5, 147.2-8. 375 Exhibit P28 at ‘NE1’. 376 T 137.21-22. -- 81 of 496 -- [2026] SADC 27 76 face. 377 He could see him quite clearly, in the sense that there were not a lot of people between him and the applicant at this time.378 344 The applicant was then seated on a chair under the carport.379 He remembered standing with Mr Heames under the carport, about two to three metres away from the applicant. 345 He could not recall the ambulance or police being called, the ambulance arriving or whether he had immediately left the party thereafter. Mrs Chattaway The party – general observations 346 Mrs Chattaway gave evidence that on the day of the party, the applicant had spent the morning hiking from Mount Lofty to Norton Summit, in preparation for a forthcoming trip to New Zealand with the Exploration Society. 347 She recalled that he ate lunch and that at about 5:00pm he left for the party from their home at Unley Park. She recalled he was picked up by the mother of one of the applicant’s school friends, although she could not recall who was in the car.380 She could not recall if the applicant had alcohol with him but she did not see him consume any alcohol before he left.381 348 Mrs Chattaway remembered ringing the applicant at about 10:00pm, to ask him if he wanted her to pick him up from the party. He had said, no, that he was having a good time. He sounded very cheerful, happy and ‘quite fine’. There was nothing about his demeanour which suggested to her that he was intoxicated.382 The immediate aftermath of the incident 349 Mrs Chattaway gave evidence that she received a phone call from Ms Dansie between about 10:30pm and 10:45pm. Ms Dansie told her that the applicant (Nicholas) had been hurt and asked if she could come and pick him up. This was a very brief conversation and she could not recall any other details of it.383 350 In cross-examination, a proposition was put to Mrs Chattaway that during this telephone call, Ms Dansie had said words to the effect that Nicholas had been injured, that she thought an ambulance should be called and was seeking Mrs Chattaway’s permission to do so, as Nicholas was not yet 18. It was also suggested to Mrs Chattaway that in response, she had said, ‘no I will come over 377 T 143.21-37. 378 T 149.20-150.6. 379 Exhibit P28 at ‘NE3’. 380 T 69.17-70.33. 381 T 92.22-24; T 70.14-18. 382 T 71.9-29. 383 T 71.7-8; T 72.5-15; T 94.4-9. -- 82 of 496 -- [2026] SADC 27 77 and have a look’. Mrs Chattaway denied this. She said was insistent that the ambulance be called and denied this was Ms Dansie’s idea.384 351 Mrs Chattaway said that she then left her home and drove to the premises. This took about five minutes. When she arrived, she observed that the roller door to the garage/carport was open.385 She saw the applicant sitting on a chair in the garage area. 386 He was not speaking and was obviously distressed, with a lot of blood coming from his face, nose and mouth.387 352 Mrs Chattaway was asked several questions about her observations of others at the party. She explained that she was quite shocked at the state in which her son was in and that she was just focussed on him.388 However, she recalled being able to see into the backyard from the position where she was standing and observed there being activity around the pool where there were people drinking, there were bottles around and people were quite spirited. She estimated that there were approximately 30 people in attendance, about the same age as the applicant (ie 17 or 18).389 353 She observed people drinking what she thought was cheap champagne or beer. When asked how many people were drinking, she said:390 Well I think they were all drinking, but I don’t know what they were drinking … 354 She did not observe any hostility or conflict.391 She did not observe any food.392 355 She stayed with her son and did not leave the area under the carport.393 356 Mrs Chattaway said that when she first arrived at the party, she spoke to Ms Dansie outside, in the carport area. Her recollection was that Ms Dansie had asked her if she would take Nicholas to hospital in her car and that in response she had said to Ms Dansie, ‘I can’t possibly take him in my car in that state, call an ambulance’.394 Ms Dansie then called for an ambulance.395 357 Mrs Chattaway agreed that shortly after she arrived, Ms Dansie phoned for the ambulance. There were other adults also attending to Nicholas at this time.396 However, Ms Dansie returned to the carport when she was on the phone to triple 384 T 94.32-95.8. 385 T 77.15-16. 386 T 77.32-38; Exhibit P2 at p 18, marked. 387 T 73.9-13. 388 T 73.26-27. 389 T 80.4-29. 390 T 81.9-10. 391 T 82.1-3. 392 T 81.29-30. 393 T 101.6-13. 394 T 74.6-7. 395 T 74.16-17. 396 T 95.9-24. -- 83 of 496 -- [2026] SADC 27 78 zero, as the paramedics were providing instructions over the telephone to try to stop Nicholas’ nose from bleeding.397 The ambulance arrived while Ms Dansie was still on the phone to triple zero.398 358 Mrs Chattaway recalled asking Ms Dansie, ‘who are these horrible people who have attacked Nicholas?’. Ms Dansie said that they were from Scotch and that they had not been wanted at the party but that they were friends of friends of the other girl.399 359 She had expressed her question to Ms Dansie in this way because Ms Dansie had said to her, ‘Oh it was a king hit’.400 360 Mrs Chattaway was asked several questions about her observations of the applicant during the period while she was with him under the carport. She described him as moaning and groaning. He was not telling her what had happened. She did not think he was able to speak at the time.401 361 She said, initially, that she could not recall if she had observed the applicant answering questions asked of him by the ambulance officers.402 Later when asked if she heard the applicant answering questions from the ambulance officers during this time, she said no.403 She followed the ambulance in her car to the Royal Adelaide Hospital. One of Nicholas’s friends, a girl, Courtney, had travelled in the ambulance with him.404 362 Mrs Chattaway stayed with the applicant until he was admitted. While at the hospital, she did not observe any signs of intoxication in him, although she said he was in pain and she thought they had given him some painkillers, as he went to sleep in Accident and Emergency. At no time did she see him get up and walk around and at no time did he speak to her.405 363 Mrs Chattaway was asked to confirm Nicholas’ height and weight at the time and said he was around about 85 to 90 kilograms and 6 foot 2.406 When asked if he was an experienced drinker, she said:407 No, I think he was not inexperienced but not experienced. I think that he sort of socialised with his friends. 397 T 95.35-96.16. 398 T 96.22-25; T 74.32. 399 T 74.35-75.2. 400 T 75.6-7. 401 T 76.18-24. 402 T 97.3-5. 403 T 97.36-98.1. 404 T 76.2-5; T 97.30-35. Courtney was not called to give evidence and there was no evidence as to why. 405 T 98.13-99.7. 406 T 99.10-15; T104.8-12. 407 T 99.20-22. -- 84 of 496 -- [2026] SADC 27 79 364 She understood that his blood alcohol level was taken at the hospital and found to be 0.129. She could not say whether he had previously drunk to that extent.408 365 She did agree, in cross-examination that as at the time of the party, the applicant had previously attended several 18th birthday parties and had been to schoolies.409 Applicant’s discharge from hospital 366 Mrs Chattaway gave evidence that the applicant was discharged from hospital on the afternoon of the Tuesday (7 December 2010).410 367 She picked him up and they went straight to the Sturt Police Station to report the assault, at which time the applicant made a statement to the police.411 She said:412 I think he was subdued, I think he was taking painkillers, I think he was just trying to recover from the experience. 368 Thereafter, they drove home via the third and fourth respondents’ house in Clarence Park as she had suggested to the applicant that it would be a good idea if they dropped in.413 They arrived at the house at about 5:00pm. They walked down the driveway where they saw Owen cleaning up bottles from the party. She described there being a lot of bottles and specifically recalled champagne bottles and long-neck beer bottles.414 369 Owen told them that the men who had attacked the applicant had come back later and apologised for ruining his 18th birthday party.415 370 Mrs Chattaway did not see anyone else at the house. Before leaving, she asked Owen if it would be okay if she took some bottles, so she took a long-neck beer bottle and two different types of champagne bottles.416 As to why she had taken those bottles, she said:417 I just thought that, you know, from what Nicholas said about what had happened, that you know this was evidence and I didn’t know how it might be used, I just thought it was sensible to take some of these bottles and Owen agreed. 371 She still had those bottles.418 408 T 99.23-30. 409 T 92.36-93.1. 410 T 83.36-38. 411 T 85.1-9. 412 T 85.14-16. 413 T 85.36-37. 414 T 86.7-26. 415 T 86.34-37. 416 T 87.28-38. 417 T 88.2-6. 418 The bottles were not in evidence. -- 85 of 496 -- [2026] SADC 27 80 372 Mrs Chattaway did not remember walking around the backyard with Owen and the applicant looking for bottles under either the orange tree or the lemon tree. She disagreed with a proposition that the bottles had already been cleaned up and were in the recycling bin when she arrived and maintained that Owen was in the process of cleaning up the bottles at the time of their visit.419 373 Mrs Chattaway agreed that by this stage, she had been given information to the effect that the applicant may have been hit by a bottle. She described having had a conversation with a Dr Ben Grave at the Royal Adelaide Hospital, to that effect.420 She agreed that it was in her mind that the applicant’s version was that he had been hit by a bottle.421 Second respondent – Patrick Dunn-Lawless General 374 Dunn-Lawless was aged 30 at the time he gave evidence. At that time, he was studying a Master’s’ degree in Mathematics at Flinders University, having previously completed a Bachelor of Psychology and a Bachelor of Mathematics and Computer Science at the University of Adelaide.422 He was undertaking occasional work for a transcription company.423 375 As Dunn-Lawless was self-represented for most of the trial, he gave his evidence-in-chief in a largely narrative form, prompted by questions from me. 376 Dunn-Lawless attended Scotch College. He completed Year 12 at Scotch College in 2010, shortly prior to the party. He was invited to the party by Kelly via Facebook.424 His name appears in the list of invitees, with his attendance status as ‘Maybe’.425 He knew Owen as they were in the same year level at Scotch College and had rowed together.426 He had not been to Owen’s house before the party.427 377 At the time of the party, he was close friends with Lloyd.428 When asked to describe Lloyd’s appearance then, he referred to Lloyd as a ‘mesomorph’ – someone who was stocky and muscular notwithstanding his short stature. He estimated Lloyd was about 5’5”.429 378 Dunn-Lawless said he was about 190cm tall at the time of the party and weighed no heavier than 70 kg.430 In addition to having rowed throughout 419 T 102.27-29. 420 T 101.31-102.10. 421 T 102.6-9. 422 T 317.22-26; T 367.3-25. 423 T 317.27-28. 424 T 317.28-31; T 347.29. 425 Exhibit R31. 426 T 343.22-35. 427 T 340.25. 428 T 350.29-35. 429 T 335.8-9; T 335.20-24. 430 T 335.11-17. -- 86 of 496 -- [2026] SADC 27 81 secondary school, including until the season ended in early 2010, he attended a gym two to four times a week. He lifted weights and was also a runner. He undertook judo until the age of 13.431 379 Dunn-Lawless gave evidence that he had not really met the applicant before the party. However, he assumed that as the applicant rowed for St Peters, he would have encountered him at rowing related events.432 The party – general observations 380 Dunn-Lawless gave evidence that his friend, Miles Francis, had been invited to the party by Owen and that Miles drove him to the party. 433 381 They arrived at the party at about 7:00pm, when it was still light and entered via the driveway. He had a recollection of walking through a gate when they were inside the property. He and Miles spoke to Owen upon their arrival. At that time there were around 10-15 guests outside and some adults inside the house. Dunn- Lawless had a recollection of waving to some adults upon his arrival and he presumed those adults were Owen’s parents. There had been a barbecue going (at around F8 on the grid) but that was being packed up.434 382 He described the adult presence at the party as similar to other parties he had attended during Year 12. Owen’s parents and ‘maybe two other adult couples in the house mainly but exiting to perform kid of administrative type duties to keep the party running.’435 This was a ‘smaller to medium’ party.436 He did not make any observations as to whether the adults were drinking and/or their level of sobriety.437 383 Dunn-Lawless gave evidence that he did not bring any alcohol with him to the party.438 The fact the invitation described the party as ‘BYO’ accorded with his recollection and understanding.439 The guests that were there when he arrived were mostly Saints’ guys and they had beers. He recalled seeing some eskies at the party which he thought were under the pool shelter, or near the barbecue, although he could not be precise as to their location. He said:440 … As far as beverages go, I believe there was soft drink, which I understood to be publicly available. I think I drank some of the soft drink at the time. There were also beers … 431 T 344.12-28. 432 T 335.25-32. 433 T 317.32-36; T 320.7-13; noting Miles Francis was not called to give evidence and there was no evidence as to why he was not called. Miles Francis’ name does not appear on the invitation list, however Owen (later) gave evidence that he recalled seeing him at the party; T 687.5-14. 434 T 320.14-17; T 321.2-13; T 377.15-21. 435 T 339.13-16. 436 T 339.3. 437 T 350.8-20. 438 T 321.31-32. 439 T 340.37-341.1. 440 T 321.23-28. -- 87 of 496 -- [2026] SADC 27 82 384 Dunn-Lawless gave evidence that he spent about the first hour of the party sitting with Miles and others introduced to him by Miles under the pool shelter (E7 on the grid). Either Miles, or Miles’ friend, suggested they go to a nearby bottle shop to buy some alcohol. The three of them then drove to First Choice Liquor, on Unley Road, where he purchased the cheapest alcohol he could find, a bottle of ‘Slippery Fish’ white wine. He could not recall what the others bought.441 385 They then drove back to the party. By the time they returned, the sun had almost completely set and it was darker. He estimated that at that time there were around 20 to 25 people outside at the party, with a handful of people inside.442 Guests were mostly concentrated under the pergola.443 He recognised some friends he knew from school including Lloyd and Jake Stewart.444 Lloyd was standing in a group where there was a cluster of people under the vine covered pergola (at F8 on the grid).445 He and Lloyd had not discussed going to the party beforehand.446 386 He thought he said hello to Lloyd and others.447 He saw some girls he knew sitting at a table in the garden area, so he went over and joined them at the table. Those girls included Jordan McCallum, Bryony Hardy, Diana Hancock and Megan Voo. He said his hellos and recalled them having some kind of sparkling beverage with them, in a bottle similar in size to a champagne bottle.448 387 Dunn-Lawless described the table as straddling G4 and G5 on the grid about a metre from the pool fence.449 It was the only table on the grassed area.450 It was a rectangular table, with the long sides measuring about two and a half metres and the short sides long enough for one person. There was an umbrella-type thing in the middle. There were bench seats on the long sides of the table and plastic or individual chairs also in the area.451 388 He recalled, for the most part, sitting on the north-west long side of that table, which was parallel to the pool.452 He did leave the area on occasions, to talk to other 441 T 321.33-322.18; T 381.20; T 383.9-19; T 384.14-29. 442 T 322.18-21; T 339.25-36; T 386.10-12. 443 T 349.1-10. 444 Jake Stewart was not called to give evidence and there was no evidence as to why he was not called. His name appears on the list if invited guests in Exhibit R31, with his attendance status listed as ‘invited’. Lloyd’s name is not on that list. 445 T 322.29-31; T 350.37-351.18. 446 T 350.29-33. 447 T 386.6-8. 448 T 322.31-35; T 323.12-18; T 386.14-29; T 387.20-388.26. Diana Hancock, Bryony Hardy and Megan Voo were invited guests as per Exhibit R31. They were not called to give evidence and there was no evidence as to why. Jordana McCallum was an invited guest as per Exhibit R31 and was called to give evidence. 449 T 323.26-27; T 354.3. 450 T 336.24-28. 451 T 323.32-37; T 354.27-31. 452 T 323.27-30; T 354.7-26; T 388.38-389.2. -- 88 of 496 -- [2026] SADC 27 83 people at the party and to go inside the house to the use the toilet (entering through what he recalled were sliding doors underneath the pergola).453 389 Dunn-Lawless recalled drinking some of the white wine he had bought (both straight and mixed with soft drink) and some of his friend’s sparkling wine poured for him into a plastic cup.454 390 Dunn-Lawless gave evidence-in-chief that Lloyd had not gone with him, initially, when he went to sit at that table but that Lloyd had joined the group at the table around 30 to 45 minutes, perhaps an hour, later.455 Thereafter, those who were at the table would come and go at various times, to talk to others or get drinks.456 391 During the party, he saw girls going inside to use the bathroom. He gave no evidence of seeing any of the girls going into the bathroom and vomiting.457 392 He recalled there being some kind of greenery on the western (back) fence of the property at about G2 or H2 on the grid, where both the applicant and Lloyd had gone to urinate (see further discussion below).458 Lighting 393 Dunn-Lawless gave evidence that the lighting at the table was darker than the lighting in the immediate outdoor area under the pergola, adjacent to the house. However, he could see the people who was speaking to (and, as outlined hereunder in more detail), he was able to see the applicant when he walked past the table on his way to urinate at the back fence. The area was illuminated from the blue light coming from the underwater pool lights and from a floodlight on the corner of the house (at H6 on the grid).459 That floodlight illuminated ‘the majority of the backyard’, albeit the light began to diminish from about the area in column 3 on the grid (that is, the area near but not immediately adjacent to the back/western fence of the property).460 394 As to whether he could see people urinating in the shrubbery at the (back) western fence from his position at the table, he said:461 I don’t remember either Jack or Nicholas being visible while in that area, although I obviously wasn’t – I wasn’t watching to see what I assumed was them urinating. 453 T 323.17-324.9. 454 T 325.2-9. 455 T 325.24-30. 456 T 390.3-391.22. 457 T 350.21-28. 458 T 333.8-14. 459 T 332.35-333.5. 460 T 353.20-25. 461 T 333.15-18. -- 89 of 496 -- [2026] SADC 27 84 His/Lloyd’s alcohol consumption 395 Dunn-Lawless gave evidence that he did not drink much alcohol at the party. His initial estimate was that he had consumed about three standard drinks, although he agreed in cross-examination that it may have been four. This included the wine he had bought and the sparkling wine (described as something like Passion Pop). He had no recollection of drinking beer.462 396 Dunn-Lawless saw Lloyd drinking at the party and remembered seeing him drinking beer from a long neck bottle. He could not say how much Lloyd was drinking, as he was not keeping tabs on it but recalled it was more than one bottle.463 He did not remember seeing Lloyd drink any of the Passion Pop.464 Conversation about uninvited guests 397 Dunn-Lawless had no recollection of being part of any discussion about whether he was at the party, uninvited. He gave the following evidence-in-chief:465 A. I don't have a recollection of being part of any such discussion. I vaguely recall there being something about Jack being there. I guess retroactively I assumed that that was what happening when he was not sitting at the table for the amount of time that I indicated, like up an hour he was elsewhere in the party. That period I think retroactively is when that discussion may have taken place. Q. So you're just assuming that. A. Yeah. That's my take on that. … 398 In cross-examination by counsel for the third and fourth respondents, Dunn- Lawless gave evidence that he had a vague recollection of a discussion having occurred between Owen and Lloyd about Lloyd’s presence at the party. He described hearing about some such discussion on the night and of having a vague image of Owen being near Lloyd and asking to speak to him. He said the applicant was not in that ‘vague image’.466 This was ‘in the earlier portion’ of Lloyd’s arrival at the party and his impression was that whatever was happening had been resolved and that Lloyd was at the party with Owen’s consent.467 399 When cross-examined by counsel for the applicant, Dunn-Lawless maintained that he had no recollection of being present at any conversation between Owen and Lloyd during which Owen asked Lloyd to leave. He gave the following evidence:468 A. To my memory I wasn't there. I, like, subsequently heard it happened and it was a long conversation, I would remember being a part of something like that. On the 462 T 358.38-359.15; T 437.15-438.25. 463 T 359.16-26. 464 T 439.9-440.2. 465 T 334.12-21. 466 T 357.5-18. 467 T 357.34-358.5. 468 T 429.6-14. -- 90 of 496 -- [2026] SADC 27 85 night I think maybe where I got the impression was somebody told me something like secondhand that Jack and Owen had been speaking. Q. Wasn't it the case that there was such a conversation in which Jack had called Owen a pussy. A. I didn't see anything like that. 400 Dunn-Lawless was not questioned by counsel for the applicant as to whether, at any time, he was present during a conversation with Owen, Lloyd and the applicant, during which both he and Lloyd were asked to leave, because they were not invited and were being threatening towards Owen and the applicant. He was not questioned as to whether he and Lloyd had threatened Owen by calling him a pussy for not throwing them out of the party. 401 Dunn-Lawless was asked by counsel for the third and fourth respondents if he had any recollection of any interchange with the applicant on the topic of whether he or Lloyd should remain at the party. He said:469 A. I don't remember speaking to anyone about whether I was invited or not, but if someone had asked me about that, I'm sure I would have just simply said Kelly invited me and left it at that, and I don't recall any interaction with Mr Chattaway throughout the evening. Observations of the applicant during the party 402 Dunn-Lawless gave evidence that at about 9:00pm, he was sitting at the table on the grassed area, with his back to the pool. For some reason he turned to look at the pool and saw the applicant in the pool with a glass beer bottle. He noticed this because he had seen a sign that said, ‘No glass in the pool area’. He thought nothing more of it at the time and continued socialising and drinking.470 He did not observe anyone else drinking beer in the pool.471 403 Dunn-Lawless gave evidence that at around 10:00pm, maybe later, he looked over towards the area at G6 on the grid (the brick/grass area immediately to the rear of the covered pergola). There was a group of people standing and dancing to music in that area. Lloyd was there, facing east (towards the back of the house) and talking to two girls. He then saw the same person he had earlier seen in the pool with the beer bottle, wearing only boardshorts, come up behind Lloyd, wrap his arms under Lloyd’s arms and lift him off the ground for a second or two. He thought this was a familiar gesture in circumstances where he (Dunn-Lawless) did not recognise the applicant from their social circle.472 404 Dunn-Lawless gave evidence that once the applicant put Lloyd down, Lloyd turned around, looked confused and smiled, then simply continued speaking to 469 T 357.22-26. 470 T 325.9-23. 471 T 358.29-35. 472 T 325.30-326.13. -- 91 of 496 -- [2026] SADC 27 86 those guests he was speaking with before. He thought the applicant went back to the pool.473 Sometime later he chatted to Lloyd about this interaction and whether he knew the applicant. He had said he did not, they laughed about it as being weird, but decided it was not a big deal. Thereafter they simply continued to socialise and drink.474 Atmosphere at the party before the incident 405 Dunn-Lawless gave evidence that at no stage during the party had he thought it was becoming ‘disorganised’.475 The party remained calm and organised. The atmosphere between the groups of people in attendance was pleasant and relaxed.476 The incident 406 Dunn-Lawless gave detailed evidence of his recollection of the incident and what happened immediately thereafter. 407 He gave evidence-in-chief that at about 10:30pm, he was sitting at the table, with his back to the pool, when he saw the applicant walk past the table, from the area on the grass near the back of the pergola (H6 on the grid) towards the western fence (H2/G2 on the grid). He and the applicant made eye contact. The applicant had a smirk on his face. He assumed the applicant was going to the area at the western (back) fence to urinate.477 408 Lloyd was sitting at the table somewhere opposite him. He could not remember there being any conversation between him and Lloyd at that time.478 Neither he nor Lloyd said anything derogatory about Owen at that time. The applicant did not say anything to him or to Lloyd as he walked past the table. He denied the applicant said to them, ‘I think you guys should leave’ as he walked past the table.479 409 Dunn-Lawless gave evidence that quite shortly thereafter, Lloyd left the table to go to urinate at the western fence.480 He had stayed at the table and continued to speak with the others there.481 410 Less than a minute later, Dunn-Lawless heard Lloyd say his name in a loud voice with a sense of urgency.482 He was still sitting on the north-western side of the table at that time. Jordana McCallum was sitting to his left. Megan Voo was at 473 T 326.13-18. 474 T 326.24-35. 475 T 346.26-28. 476 T 346.30-37. 477 T 326.35-327.15; T 434.12-14. 478 T 359.27-33. 479 T 359.34-360.16. 480 T 327.14-21. 481 T 327.15-17. 482 T 327.21-23. -- 92 of 496 -- [2026] SADC 27 87 the table but he could not recall precisely where she was sitting. There may have been others also sitting at the table.483 411 He looked up and saw Lloyd at about H3 on the grid, walking back from the western fence towards the table. He had what he believed to be a longneck beer bottle in his hand (maybe his left hand). The applicant was walking quickly behind Lloyd, closing the distance between them.484 412 Dunn-Lawless gave evidence that he then responded to Lloyd by saying ‘what’s up’. Lloyd then said, ‘This guy just said he was going to knock me out’. It was quite clear he was referring to the applicant.485 He got up from his seat and began to walk over to the two of them. His recollection was that he was walking and not running, albeit he was concerned, given what Lloyd had just said.486 413 He saw the applicant grab Lloyd underneath his armpits from behind and lift him off the ground. He held him up for longer than he had done on the first such occasion and there was a ‘kind of sideways rocking motion’ in addition to the lift. Lloyd had one free hand and used it to push the applicant away and told the applicant to ‘fuck off’.487 414 Dunn-Lawless gave evidence that the applicant then released Lloyd, causing him to drop a distance of between 30 to 50 cm to the ground. He landed on his feet. The applicant then swung his right arm and struck Lloyd somewhere on the left side of his head, in the region of his face, neck or collarbone. Lloyd then staggered back and dropped his drink onto the grass. 488 415 Dunn-Lawless explained that while this was happening, he was trying to close the distance of about three metres between himself and Lloyd and the applicant.489 416 He saw the applicant advance towards Lloyd. To prevent the applicant from continuing to assault Lloyd, he swung his right hand towards the applicant. He was too far away from the applicant for that blow to land. He stumbled forwards with the momentum and ended up standing between Lloyd and the applicant, to the applicant’s left.490 417 Dunn-Lawless gave evidence that the applicant then turned towards him and swung his right arm at him. He felt two separate strikes to the left side of his face. He staggered back. When he regained his bearings, he saw the applicant was still 483 T 336.29-38; T 358.15-28; 435.24-25. 484 T 327.24-28; T 328.20-23. 485 T 328.1-5; T 435.36-1. 486 T 328.37-329.2; T 437.7-14. 487 T 328.5-13; T 328.24-28. 488 T 328.28-34; T 329.2-6; T 395.31-396.3; T 426.17-19. 489 T 329.7-8. 490 T 329.10-22; T 396.4-16. -- 93 of 496 -- [2026] SADC 27 88 swinging both of his arms, ‘kind of in round-arm strike motions’ and appeared to be trying to hit both him and Lloyd.491 418 To stop the applicant from continuing to attack him and Lloyd, he then swung his right arm at the applicant, such that his right fist made contact with the applicant ‘quite central to his face’. This felt like a clean and heavy strike that hit the applicant fairly square on the nose.492 In cross-examination, Dunn-Lawless said that he remembered striking the applicant’s nose quite centrally but on the left side pushing it somewhat to the right.493 419 Dunn-Lawless gave evidence-in-chief and in cross-examination that almost simultaneously, Lloyd threw a right swing at the applicant but he did not see that blow make contact with the applicant. As such, he believed that it was his heavy blow, which had made contact, that broke the applicant’s nose.494 420 During cross-examination, Dunn-Lawless was asked to estimate how much time had passed between him seeing the applicant lift Lloyd in the ‘bear hug’ as they walked back to the table and his blow which felled the applicant. He estimated this would have been 10 to 15 seconds at the most.495 421 Dunn-Lawless gave evidence-in-chief that after he struck the applicant, the applicant stepped back and was kind of hunched over, with his both of his hands around his knees. The applicant’s nose was bleeding. He no longer viewed him as a threat.496 In cross-examination, he described the applicant as being on ‘his haunches.’497 He said:498 I think that the fight kind of naturally ended after Mr Chattaway no longer appeared aggressive. 422 Immediately thereafter he heard the applicant say out loud either, ‘you bottled me’, or ‘I’ve been bottled’ or similar. He definitely used the word ‘bottled’.499 423 Dunn-Lawless gave evidence-in-chief that this confused him. He said:500 … I looked at Jack, and I think I said, ‘What is he talking about?’ Jack didn’t know. I said to Nicholas ‘Why do you say that?’ And there was a conversation we had around the facts of what happened. I explained, like – ‘You were attacking my friend, I punched you’. 491 T 329.24-34; T 396.17-397.13. 492 T 329.34-330.4; T 397.15-27. 493 T 443.31-444.6. 494 T 330.4-12; T 400.26-33. 495 T 361.4-14. 496 T 330.12-16. 497 T 397.29-35. 498 T 401.17-18. 499 T 330.16-17; T 397.36-398.4. 500 T 330.19-24. See also evidence in cross-examination to the same effect at T 361.21-37 and T 398.5- 35. -- 94 of 496 -- [2026] SADC 27 89 424 He could not remember if the applicant responded to this but heard the applicant speak after that. He said:501 A. I think someone saw that he was injured and had come over and asked what happened and I heard him say that he had been punched. Q. Did he use the word 'punch'. A. Yes. Q. Do you remember who that person was that came over. A. I do. It was Jake Stewart. 425 Dunn-Lawless gave evidence that the applicant’s nose started to bleed more. He ran to the toilet inside and grabbed a roll of toilet paper and brought it back to where the applicant was. By this stage, others were attending to the applicant.502 426 During questioning by me, Dunn-Lawless confirmed that the ‘fight’ between him, Lloyd and the applicant had occurred in the location between about H3 and H4 on the grid, that is, on the grassed area between the table and the back/western fence.503 427 Dunn-Lawless reiterated that he was concerned for Lloyd’s safety when he intervened between Lloyd and the applicant. He explained that there was a size difference between Lloyd and the applicant and he believed Lloyd to be at risk of serious injury. He said:504 I basically had to intervene to prevent any further strikes to Jack and I felt the same way after Mr Chattaway struck myself essentially, that he would continue unless he was physically prevented from doing so. 428 During cross-examination, Dunn-Lawless maintained that it was the applicant who had thrown the first punch, at Lloyd.505 As to how many blows had connected with the applicant during the incident, he said:506 Q. So I'd be correct in saying that it's your evidence that Mr Chattaway only received one punch. A. That may - certainly for me. I'm not sure any contact that may have occurred, my memory is yes it was one punch. Q. One punch from you. 501 T 362.15-21. Jake Stewart’s name appears on the invitation list. He was not called to give evidence and there was no explanation as to why. 502 T 330.27-331.7; T 362.24-25. 503 T 336.22-23. 504 T 334.28-32. 505 T 400.6-8. 506 T 400.34-401.6. See also T 405.36-406.5. -- 95 of 496 -- [2026] SADC 27 90 A. Yes. Q. And you don't recall now whether any punches from Mr Lloyd landed. A. My memory is Mr Lloyd only threw that punch that I believe had missed, a near miss to Mr Chattaway. 429 Dunn-Lawless was questioned about why his Defence described him as striking the applicant with his hand, rather than his fist.507 He said he did not consciously request his solicitors use this terminology to lessen the significance of the strike.508 430 He did not dispute that it was his strike to the applicant’s nose which had caused the applicant’s facial (physical) injuries.509 431 In response to a proposition put to him by counsel for the applicant, that the physical injuries sustained by the applicant must have been caused by more than one punch, Dunn-Lawless gave the following evidence:510 A. I've heard that opinion from medical experts, yes. Q. Both Professor David and Dr Pennington expressed the view that it was more than one punch that had caused the injuries. A. I believe that was their opinion, yes. Q. And to the extent that those injuries were not caused by a hard object such as a bottle, those punches had to be of significant force. A. I would make the same assumption, yes. Q. You don't dispute that, do you. A. That - I have to follow that logic, yes. Q. So how can it be the case that your one punch, on your evidence, has caused all of this damage. A. I don't know, I just know what I did and what I remember seeing. Q. Well there is an explanation, isn't there. A. I don't know. Q. You've just lied about what actually happened in the event, haven't you. A. No. 507 FDN 103 at [3a]. 508 T 420.35-421.23. 509 T 422.31-423.7. 510 T 424.5-27. -- 96 of 496 -- [2026] SADC 27 91 Q. You lied to downplay what you perceive to be your culpability in this matter. A. No, I believe I have been completely honest. 432 He acknowledged he had been charged with the offence of aggravated assault following the incident, with the element of aggravation being that he had used an offensive weapon during the assault. He denied that since being charged, he had deliberately tailored his evidence to downplay any use of a bottle to escape criminal responsibility for that charge.511 What happened thereafter? 433 Dunn-Lawless gave evidence that after retrieving the toilet paper from inside, he wanted to leave immediately. He turned to Lloyd and suggested they leave. Jordana McCallum wanted to come with them. 434 They walked quickly, through the pergola and out the driveway. He was concerned at potential retaliation from others and wanted to distance himself from the applicant.512 He said:513 Well, I wasn't sure at that stage if he wouldn't again try and do anything to us and I was concerned about what he might - what his friends might make of his being injured by us. 435 On the way out, they saw Bryony Hardy who said she was leaving too and offered them a lift. 514 She drove them to McDonalds on Cross Road, where he called his parents, spoke to his father and told him what had happened. Although he could not recall the finer details of that conversation, he recalled telling his father that the applicant had said that bottles had been used, when they had not. His father told him to stay calm and be clear about what happened. His father suggested they contact others who were still at the party to see what was happening, so they tried to do that. They drove to Jake Stewart’s house at Torrens Park, where they stayed, sitting outside, for what he thought was over an hour. 515 436 They ascertained from others who were still at the party, that ‘the narrative around us using bottles to attack Nicholas has been repeated.’516 They were concerned about that, so they went back to the party and parked on the street for some time. They arrived as the ambulance arrived. They saw the applicant walking with assistance, to the ambulance and saw a police car pull up. He and Lloyd eventually got out of the car and spoke to Owen on the driveway at the front of the house to give their side of what had happened. Owen just wanted them to leave. Bryony then drove him home.517 511 T 424.28-36; T 425.10-14. 512 T 331.1-13; T 363.3-16. 513 T 363.23-26. 514 T 331.15-19. 515 T 331.19-332.9; T 402.34-405.35; T 407.21-408.7. 516 T 332.7-9. 517 T 332.11-24; T 363.36-364.13; T 364.19-23; T 410.25-411.3. -- 97 of 496 -- [2026] SADC 27 92 437 Dunn-Lawless was asked in cross-examination if he could recall what was said during the conversation with Owen. He gave the following evidence:518 A. I know we were apologetic about being involved in something like that, like something serious that obviously Owen certainly would have wanted and I didn't want to have happen. We tried to give our version of events. Q. What did you say. A. I said he punched Jack and punched me and then I punched him. Basically I think I just gave them the facts of it. 438 When cross-examined by counsel for the applicant, Dunn-Lawless said that they returned to the party to give their version of events as they had heard people at the party were saying they had struck the applicant with bottles. He and Lloyd got out of the car to speak to Owen after they saw the police leave.519 When questioned again about his memory of what was said during the conversation with Owen, Dunn-Lawless gave the following evidence:520 A. My memory is we tried to give the sequence of events as it happened and clarify that no bottles were used. My impression was Owen just wanted us to go so we ended up leaving fairly shortly after speaking to him. Q. Do you now recall exactly what was said. A. I don't recall exactly. My memory is to the content though, I'm fairly sure about the content. Q. So you spoke about bottles. A. I'm not sure if - my memory is yes, although I question whether it is accurate. Q. Do you now recall what was said about bottles. A. If we were discussing bottles, I always would have maintained I never used one. Q. Did you bring up the topic of bottles. A. I don't recall. I don't recall. Q. Did Jack say anything during this conversation. A. My memory is he did. I don't recall what it was. 439 At the conclusion of his evidence, Dunn-Lawless said that he believed that in his earlier evidence he had mixed up the order in which events occurred after they left the party. He said:521 518 T 364.9-17. 519 T 408.9-16; T 411.6-7; T 411.24-412.6. 520 T 412.22-38. 521 T 445.31-446.18. -- 98 of 496 -- [2026] SADC 27 93 A. … My memory now is we would have left the party and gone to McDonald's. I think I would have called or I called my dad. I think from there we did return to Churchill Avenue. I think that's when I saw the emergency services. After that I believe we went to Thorpe Street and then we later returned to have the discussion with Owen. That's the order that I now believe things happened in. Other than that I am not sure I can think of anything else. Q. I want to make sure I have got that right. So, you believe that after leaving the party you went to McDonald's. You called your dad from McDonald's. It was from there that you returned to the address at Churchill Avenue where the party was held and you saw the emergency services. A. Yes, I don't believe we were immediately outside the address but we were on the street parked in a car and we saw the ambulance and I believe the police and then we went to Thorpe Street for some time and returned to speak to Owen later that night. Q. So you returned to speak to Owen at some point after you had been to Thorpe Street but not at that first time when you were in the street and you saw the emergency services. A. That's my memory now. 440 Dunn-Lawless gave evidence that after the incident, his face was sore and somewhat swollen.522 He did not go to a hospital or seek any medical treatment. As to why, he said:523 A. I was a bit shaken up about seeing emergency services and I just wanted to see what was happening with the - my memory is I was aware there was a dispute over what happened and that bottles had been mentioned, I just, yeah, I just didn't take any action. 441 Dunn-Lawless gave evidence that he spoke to Lloyd within a week of the party. By that time, the version that they had used bottles ‘had kind of populated itself through the (sic) Mr Chattaway’s friendship group’.524 They were concerned that people who had not witnessed the event were saying this had happened. 442 When asked in cross-examination who had witnessed the incident, Dunn- Lawless said, ‘Myself, Jack Lloyd and Jordana McCallum, I believe Megan Voo and others from Scotch College.’525 443 He explained that he and Lloyd were trying to ascertain who had seen what for the purposes of the criminal trial arising from the aggravated assault charges laid against them. He believed that as part of that process his lawyers had spoken to Jordana McCallum. He did not recall speaking with Jordana about the circumstances of the incident other than when they were in Bryony’s car, 522 T 364.24-26. 523 T 413.20-24. 524 T 414.12-13. 525 T 414.17-18. -- 99 of 496 -- [2026] SADC 27 94 immediately after it had happened. Although he proposed to call Jordana as a witness, he had not communicated with or spoken to her since 2016.526 Jordana McCallum General 444 Ms McCallum is a people and culture business partner and works in radiation oncology.527 At the time of the incident, she was good friends with both Lloyd and Dunn-Lawless. She has remained one of Lloyd’s Facebook friends but had not had any contact, either in person or via social media, with Dunn-Lawless since about 2011.528 Ms McCallum was an invited guest at the party. 445 Other than the applicant and Dunn-Lawless, Ms McCallum was the only person who gave evidence who claimed to have witnessed the incident. 446 Ms McCallum did not give a statement to the police about the incident. She recalled speaking with Dunn-Lawless’ solicitors in about 2011, after Lloyd and Dunn-Lawless had been charged with some type of offence. She chose not to go to the police to explain what she had seen. She denied that she had been advised by those solicitors not to provide a statement.529 447 Ms McCallum gave evidence that she had been asked by Dunn-Lawless’ solicitors to attend court to be a witness at the subject trial but had declined. She gave her evidence under the compulsion of a subpoena issued by the third and fourth respondents. 530 448 She denied tailoring her evidence to help her friend, Dunn-Lawless.531 The party – general observations 449 Ms McCallum recalled attending the party, it being a joint birthday party for Owen and Kelly.532 She recalled arriving at the party at around 8:30pm when it was ‘sort of dusk, it was getting darker’.533 450 Ms McCallum was only 17 at the time of the party. She drove to the party and picked up both Lloyd and Dunn-Lawless on the way, from another home in Mitcham, opposite Scotch College. She did not have any alcohol with her as she was 17. She did not recall if either Lloyd or Dunn-Lawless had any alcohol with them.534 526 T 415.9-418.5. 527 T 467.27-30. 528 T 460.7-16; T 475.23-38. 529 T 478.13-24. 530 T 489.21-22; FDN 211. 531 T 488.27-29. 532 Ms McCallum’s name appears on the invitation list with her status recorded as ‘Going’. 533 T 465.12; T 459.16. 534 T 474.31; T 485.17-36; T 489.23-27. -- 100 of 496 -- [2026] SADC 27 95 451 Upon her arrival at the party, she walked straight through towards a grassed area in the backyard.535 She sat at a table in the middle of that grassed area (H4 on the grid) with Lloyd, Dunn-Lawless and Megan Voo.536 She was facing west and Dunn-Lawless was sitting straight opposite her.537 452 Ms McCallum could not recall food being made available at the party. However, she qualified her answer in this respect on the basis that ‘they’ had walked straight through and gone to the back table upon their arrival.538 Lighting 453 As to the lighting in the area of the table, she recalled a downlight on the corner of the house at H6 on the grid.539 There were also lights on inside the house. She could see in through the windows and saw adults inside.540 There were also lights in the pool. She could see the people at the table and could otherwise see for about two metres, if she was looking either towards the back of the property or towards the southern fence line.541 Alcohol consumption 454 As Ms McCallum was driving, she was not drinking but she understood that it was a ‘BYO’ party.542 455 She believed that both Lloyd and Dunn-Lawless were drinking but she was uncertain about Megan. She recalled Lloyd holding a beer bottle in his hand at one stage but could not recall what Dunn-Lawless was drinking.543 456 In cross-examination, Ms McCallum denied that she was drinking Passion Pop at the party. She could not recall if other girls or Dunn-Lawless were drinking bottles of Passion Pop at the table, nor could she recall bottles of Passion Pop on the table.544 457 Ms McCallum gave evidence that she had previously met the applicant once prior to the incident at a party in or about Year 9.545 She had seen the applicant during the party from where she was seated at the table. As to her observations of the applicant, she said:546 He was very loud. He was one of the only people in the pool. So, he was in bathers. He was yelling, playfully yelling and I noticed him because it was out of character for the rest of 535 T 459.28-37; T 467.9-10. 536 T 460.2-6; T 464.24. 537 T 460.34-461.18. 538 T 467.8-10. 539 T 464.25-37. 540 T 467.3-7. 541 T 470.11-30. 542 T 470.6. 543 T 475.17-26. 544 T 474.35-475.20. 545 T 465.19; T 466.3-4. 546 T 466.11-16. -- 101 of 496 -- [2026] SADC 27 96 the party. Everyone else was standing around talking and, yeah, he was in the pool making quite a loud noise and jumping in and splashing. 458 Ms McCallum was asked if she observed anyone affected by alcohol at the party prior to the incident. She gave the following evidence:547 A. Just Nick, to my recollection. Q. When you say just Nick, what was it about him that suggested something to you. A. Well, he was drinking and he was loud and acting drunk, from my recollection. Q. And when you say he was drinking, did you see him drinking. A. Yes. Q. What did you see him drinking. A. A beer. Q. And where was he when he was doing that. A. Out by the pool. 459 She could not otherwise recall seeing the applicant during the evening before the incident.548 460 Ms McCallum gave evidence about her prior experience observing people who may have been under the influence of alcohol. She explained that from the age of 14 she had worked in her parents’ pub and from about the age of 18 she had managed that venue. In that capacity, she had observed people who were apparently affected by alcohol and on occasions she had to take action, either personally or by getting other people in management to deal with them.549 Atmosphere at the party before the incident 461 When asked to describe the atmosphere of the party generally, Ms McCallum said that it was not a noisy party and she described it as, ‘quite dull for an 18th. Yes, very docile’.550 She did not observe any animosity between anyone at the party, nor any suggestion of anyone who might potentially engage in physical violence.551 The incident 462 Ms McCallum gave evidence that the incident occurred at around 8:45pm or 9:00pm, relatively soon after they arrived at the party.552 However, she clarified 547 T 473.35-474.8. 548 T 466.17-20. 549 T 468.14-469.22. 550 T 469.30. 551 T 469.31-38. 552 T 460.28; T 486.1-7. -- 102 of 496 -- [2026] SADC 27 97 that as the party was now some 12 years ago, she was not able to remember the precise amount of time that they were at the party and therefore, precisely when the incident may have occurred. It was suggested to her in cross-examination that that must mean that her memory of the night was somewhat indistinct. She said:553 The details pertaining to some parts of that night are indistinct but some details aren’t indistinct. 463 What she meant by that was that she no longer had a distinct recollection of those aspects of the party which were immemorable or unimportant.554 464 Ms McCallum gave evidence that she was sitting at the table when the incident occurred. Immediately prior to the incident, there had been a disagreement between Lloyd and the applicant which then resulted in a physical altercation.555 When asked to provide more details about this, Ms McCallum gave the following evidence:556 Sure. So I was sitting at the table. I was sitting opposite both yourself [Dunn-Lawless] and Jack. Nick walked past our table, went into the bushes which was where everyone was going to relieve themselves. Jack got up around the same time, went to go and presumably relieve himself as well in the bushes. I couldn't see or hear anything of what occurred in the bushes. Jack returned to the table. Nick then came up behind Jack and sort of went to hold him, touch him, sort of bear hug I would assume (INDICATES), again this was happening right opposite me, to which then Jack shrugged him off and pushed him back. Then Nick and both Jack there were punches thrown. It knocked Jack. Another couple of punches were thrown from Nick towards Jack, knocking his beer bottle out of his hand. Then yourself [Dunn- Lawless], you stood up, knowing that and having seen that Jack was knocked and then you punched Nick. It was one hit with your fist to his face. He then stumbled back into the light of the building and was touching his face and then it was it, that was done. 465 Ms McCallum was adamant that she did not see the applicant being struck with bottles.557 466 She gave evidence that when the applicant had walked past the table to go to the bushes, he had been wearing bathers, but no top.558 467 She explained that she was only half a metre away from the applicant and Lloyd when the applicant gave Lloyd the bearhug. She agreed with a proposition that the applicant was ‘right up the other side of the table.’559 She was sitting directly across the table (which was about half a metre wide) from where Lloyd 553 T 487.7-8. 554 T 487.11-15. 555 T 461.22-23. 556 T 461.29-462.9. 557 T 463.19-24. 558 T 466.24-25. 559 T471.8. -- 103 of 496 -- [2026] SADC 27 98 was at the time. From where she was sitting, Dunn-Lawless was on the left, Lloyd was on the right and the applicant came from behind them.560 468 Neither Lloyd, Dunn-Lawless nor the applicant had said anything prior to that attempted bear hug.561 469 Ms McCallum gave evidence that the first person to make contact with anyone during the incident was the applicant. She gave evidence that the applicant made contact with Lloyd, causing Lloyd to go to the ground at one stage.562 She could see this clearly.563 She did not recall seeing the applicant make contact with Dunn-Lawless at any point in time.564 It was her impression that Dunn-Lawless was simply protecting his friend.565 470 Ms McCallum said that she stayed at the table during the fight and then stood up. She recalled being ‘pretty shocked’, as it was ‘a strange incident’ and surprising to her.566 471 After the incident, she saw the applicant closer to the corner of the building. She remembered a light shining down. The applicant was wiping blood across his face. A chair was brought for him and she recalled seeing the applicant sitting on a plastic chair under the floodlight.567 472 Owen’s mother, with others, had attended to the applicant. She remembered seeing Dunn-Lawless provide the applicant with some tissue or toilet paper to assist with the bleeding.568 What happened thereafter? 473 Ms McCallum gave evidence that she stayed at the party for only five to 10 minutes after the incident and then left the party with Lloyd and Dunn-Lawless. 474 Prior to leaving, they (she, Lloyd and Dunn-Lawless) had a discussion with Owen, who was visibly upset and wanted to know why and what had happened. This conversation had occurred ‘a few moments’ after the incident.569 She recalled Owen saying that the applicant had said he had been bottled. She said, ‘we all said that didn’t happen’.570 By ‘all’ she meant Lloyd, Dunn-Lawless and herself.571 She 560 T 471.2-18. 561 T 471.19-22. 562 T 464.4-5; T 471.23-28. 563 T 471.29-30. 564 T 464.6-8. 565 T 464.10-11. 566 T 472.11-20. 567 T 462.22-26; T 473.1-3. 568 T 462.30-463.7. 569 T 478.30. 570 T 473.28 571 T 473.15-30. -- 104 of 496 -- [2026] SADC 27 99 did not recall hearing the applicant say anything between the time of the incident and when she left the party.572 475 She could not recall anyone else being present during the conversation with Owen. 476 When questioned further as to the time between the incident and that conversation, Ms McCallum said she could not attest to the time but was adamant the conversation had occurred.573 477 Ms McCallum recalled having a conversation with Dunn-Lawless and Lloyd and a decision was made for them to leave. She could not recall the precise words which were used. Owen made it abundantly clear to them that they should leave, so they went out to the road and got into her car.574 478 Ms McCallum remembered leaving the party in her car. She could not recall anyone being in the car other than herself, Lloyd and Dunn-Lawless.575 She did not know where they went but assumed that when they were in the car, they talked about what had taken place. 479 In cross-examination, it was suggested to Ms McCallum that it was while they were in the car that Lloyd and Dunn-Lawless told her that they had not hit the applicant with a bottle. Ms McCallum said, without hesitation, in response:576 I saw that they hadn’t hit him with a bottle. 480 Ms McCallum had no recollection of returning to the party at any time that night. She said, ‘No, we definitely didn’t go back to the party.’577 Third respondent – Megan Dansie Party organisation 481 Ms Dansie gave evidence that as Owen’s birthday was in late November, a mutual decision was made for him to hold his 18th birthday party after school had finished. As he had another friend from school, Kelly, who was turning 18 at a similar time, it was agreed they would have a joint party.578 482 She said that Owen organised the guest list for the party, presumably with Kelly. She oversaw the guest list as she wanted to know the numbers for catering purposes in terms of logistics, food and drinks. They agreed to an afternoon start.579 572 T 473.10-12. 573 T 480.20-22. 574 T 474.15-17. 575 T 483.5. 576 T 483.14. 577 T 485.9. 578 T 575.23-576.4. 579 T 576.8-12. -- 105 of 496 -- [2026] SADC 27 100 483 Ms Dansie gave evidence that they did not want a large party and she insisted that the invitation list be closed, rather than an open invitation for anybody who was a friend of a friend, to attend.580 This was not only for catering purposes but because they did not want people not known to Owen or Kelly, coming to the party. In other words, they did not want gate crashers.581 484 Ms Dansie was shown a copy of the invitation list and said that she had seen something similar to this at the time.582 485 The party was to be a BYO party. They were to ensure that bottled water and soft drink was available and would also provide a sausage sizzle.583 Her husband, Tony, was to be in charge of the barbeque, cooking a sausage sizzle, putting out sausages in bread and making sure there was a steady supply of food.584 486 Tim and Keryn Allan, who were good family friends, were invited to the party, both as responsible adults and for company. Her daughter and her daughter’s then boyfriend, who were both adults, were also invited.585 Party preparations 487 Ms Dansie gave evidence that prior to guests arriving, it was necessary for various preparations to be undertaken. Kelly’s parents dropped off a folding trestle table that might seat eight or 10 people. A large table was set up under the kitchen window and there was a dining table under the pool shelter with seats. A small outdoor table, a little smaller than a card table, was set up in the backyard, with some folding chairs. 586 As to where this small table was, she said: 587 If it was set out in the backyard, it would have been more like - as in on the lawn, it would have been probably more like H4, 5, or it may have been under the – hang on, there’s the house (INDICATES). Yes. I can’t recall exactly where it was. 488 In addition, they had a couple of two or three seat stained pine bench seats in the backyard for people to sit on under the pergola area.588 489 Ms Dansie could not recall specifically what she had done to help set up the backyard for the party. 490 Ms Dansie recalled the supplied soft drink and water was placed in ice-filled shell paddle pool things, along the edge of the house, past the French windows.589 In cross-examination, Ms Dansie gave evidence that those ‘clam shells’ were put 580 T 576.24-30. 581 T 609.29-35. 582 T 612.2-14. 583 T 577.21-24. 584 T 579.21-37. 585 T 577.29.38. 586 T 580.3-15; T 617.1-9. 587 T 616.34-38. 588 T 580.25-29. 589 T 581.23-28. -- 106 of 496 -- [2026] SADC 27 101 out only for the purpose of soft drinks and water, rather than with the expectation that guests at the party would put alcohol in them.590 491 She did not know where guests were going to put their alcohol, if it was a ‘BYO’ party as she claimed. She said it was possible that there were eskies that had been set up, either by her or her husband, on the night in question.591 She then said she could not definitely recall whether there were ‘clam shells’ or eskies. 492 Ms Dansie explained that she could not be more precise in her recollection, as they had held a number of parties at the premises. Their usual practice was as follows:592 We would tidy up. We would put some chips and things around. Put out all the folding chairs. Make sure there was a seating area for people. Make sure the pool was clean. Set up an old amplifier so we could play some music. 493 Ms Dansie gave evidence that the party started in the mid to late afternoon.593 494 Guests were sent around the side ‘via the carport’ to the backyard to enter the party.594 There was no one checking guests as they arrived.595 495 When guests arrived, some were carrying bags. Some of those bags were put under the table under the kitchen window.596 She did not check what was in those bags. She gave the following evidence:597 Q. You considered that whoever attended the party could bring in whatever they liked. A. Yes. Q. And you understood that that could include alcohol. A. Yes. I believed they were all adults and Owen's friends were, as far as I knew, nice people and sensible. Q. And you had understood that all of the people who were going to be invited were over 18. A. Yes. Lighting 496 As to the lighting arrangements in the backyard, Ms Dansie said:598 590 T 613.28-614.15. 591 T 614.28-615.2. 592 T 616.24-28. 593 T 617.20-22. 594 T 617.24-619.5. 595 T 619.10-17. 596 T 581.10-18. 597 T 620.3-11. 598 T 578.28-579.11. -- 107 of 496 -- [2026] SADC 27 102 A. There were lights under the pool shelter. The pool had underwater lights. There were - there were lights spilling out from the window in the kitchen and the side of the house and there were floodlights, outdoor floodlights illuminating the pergola area and the extension of the pergola into that down G, about G6. Plus there was a floodlight, outdoor floodlight on the shed at about G3-ish; and I'm not sure - I can't recall what other lights there were, but the back yard was comfortably illuminated, I suppose it was. Q. Had you had other parties in the evening at the property. A. Yes. Q. I say 'in the evening', I mean after dark. A. Yes. There may also have been some lights, or solar lights along the exterior of the pool fencing, along the edge of F4, 5 and 6. That's something we commonly did. Q. Yes. And on the occasions when you've had other parties or gatherings after sunset, did you have any impression as to whether the lighting was sufficient to see what was going on in the backyard. A. Yes, it was. The party – general observations 497 Ms Dansie gave evidence that there were about 30 to 40 people in attendance once the sun had set. They appeared to be having a nice time, some of them were swimming, some were talking, there was music playing outside. Tony was mostly outside doing the cooking and ‘pottering around’.599 She was inside, directing people to the toilets and occasionally going outside to put out snacks or to pick up glasses and other things.600 Their friends, Keryn and Tim, were mostly in the lounge area.601 498 Ms Dansie gave evidence that it was her expectation that Tony would be outside for most of the party. As to whether she expected him to be supervising the party, she said:602 Cooking. Keep an eye on how the party was going. 499 The Allans were not expected to be outside patrolling the party but they were there to assist if something went wrong.603 500 As to whether the adult guests had consumed alcohol, Ms Dansie recalled that they may have had a champagne at some point to toast Owen’s birthday. 599 T 583.23-30. 600 T 582.14-17. 601 T 583.10-11. 602 T 621.23. 603 T 623.5-15. -- 108 of 496 -- [2026] SADC 27 103 In addition, she might have had one or two white wines but that was all she had.604 She could not recall whether Keryn and Tim were drinking.605 501 Ms Dansie did not see any of the guests going into the bathroom and vomiting, nor did she see any of the guests engaging in any excessive drinking. As to whether she was checking for this, she said:606 I didn’t need to because I could see that it wasn’t happening when I was looking around and generally. Conversation about uninvited guests 502 Ms Dansie was asked whether at some time during the evening she had a conversation with Owen about anyone who had been invited to the party. She gave the following evidence-in-chief:607 A. Yes. Owen came in, possibly around the time we had a toast for his birthday, and said that he was pleased because a couple of blokes who he hadn't gotten along well with at school and perhaps he didn't like because of some of their behaviour and I don't - that's me putting it in my words, not his - had made some overtures to him and had, in effect, apologised for some of their behaviours at school, and Owen was pleasantly surprised and happy about that and I - while, I didn't know what he was talking about, I was happy that whatever disputes people had had at school, they'd obviously left school and put it behind them and been big enough to make things right, and I think he may have said there's somebody that was invited by Kelly, but – (my emphasis) 503 It was not generally known at the party that she had any such conversation with Owen.608 504 During this conversation, Owen had said that he did not really want those people there and that he had not invited them. However, he was really pleased that they had apologised for their previous behaviour at school.609 505 Ms Dansie could not recall being present, outside the house, when there was some other conversation on a similar topic.610 506 She did not notice any suggestion of tension between any of the guests as the evening progressed.611 604 T 583.12-16. 605 T 583.19. 606 T 627.25-26. 607 T 583.38-584.13. 608 T 598.29-32. 609 T 606.8-21. 610 T 593.19-21. 611 T 584.14-16. -- 109 of 496 -- [2026] SADC 27 104 507 She could not recall seeing the applicant at any time prior to him being injured.612 The incident 508 Ms Dansie gave evidence that it was some time after the family had had a celebratory drink in the lounge room to toast Owen’s 18th that she learned that there had been an incident outside.613 509 Someone, whom she could not recall, had said that someone had been punched, behind the lemon tree.614 Someone said that the applicant had tried to punch somebody and that they had punched him back and he had a bleeding nose.615 510 She went outside and there was a group of people that had brought the applicant towards the house. They got him settled on a folding chair near the back door under a light so that she could render first aid.616 511 When asked in cross-examination if she could recall anything else that was said to alert her to the fact of the incident, Ms Dansie said:617 As I have already given evidence, I was told by someone that he had taken a swing at these guys behind the lemon tree and that he’d been punched back. 512 She could not recall who had told her that or whether it was told to her, either before she attended the applicant or while she was attending to him. However, she was certain she had been told this. As to why, she said:618 A. Because it's an unusual situation and because I had a - my thought processes were that if he had - if it was, that there wasn't going to be any further escalation of any incident because it was a punch and a self-defence and he'd been punched and that would be the end of it. Q. So you immediately began thinking about it in terms of legal consequences. A. No. Q. I think given the nature of your answer, that's exactly what you just told the court. A. No. Q. You were already concerned about the legal consequences. A. Absolutely not, absolutely not. 612 T 628.15. 613 T 624.14-19. 614 T 584.20-23. 615 T 584.28-30. 616 T 584.30-35. 617 T 600.33-35. 618 T 601.7-19. -- 110 of 496 -- [2026] SADC 27 105 513 She denied her evidence had been tailored to corroborate Dunn-Lawless’ version of events.619 She said she did not know Ms McCallum or the fact that Ms McCallum had been subpoenaed to give evidence, nor did she give any instructions to her solicitors to issue the subpoena.620 514 Ms Dansie gave evidence that the applicant had a bleeding nose. They got some tissues and a towel from the laundry to deal with the bleeding.621 515 She described the applicant as conscious. She was certain he was able to speak but could not recall what he had said. She described him as ‘certainly conscious and reacting’.622 516 It was about this time that she had found out that the applicant was 17. She said, ‘I had made an assumption that everybody at the party would have been over 18 because Owen’s birthday is very late in the school year’.623 517 When she learned that the applicant was 17, she obtained Mrs Chattaway’s number, called her and told her what had happened. She recalled saying either that the applicant had been injured or that he had been punched. She recalled saying that he had a blood nose, that she thought that they should get an ambulance for him but that she wanted to check with Mrs Chattaway first.624 518 Ms Dansie was quite adamant that Mrs Chattaway’s response was that she should not call the ambulance as she was only five minutes away and that she would come over.625 519 Ms Dansie gave evidence that Mrs Chattaway arrived about five or 10 minutes later and attended to her son. She had another conversation with her at that time. Mrs Chattaway was proposing to drive the applicant to Flinders Medical Centre. She told Mrs Chattaway that that was not a good idea, given how much the applicant was bleeding and that he would bleed in her car. She said that there was a female friend with the applicant who had offered to sit in the backseat of the car with him. She said in the end, Mrs Chattaway agreed that she call an ambulance, so she did.626 520 Ms Dansie was cross-examined about what can be heard in the background of the recording of the triple zero call she made to call the ambulance.627 Specifically, she was asked about her response to Mrs Chattaway’s question ‘who were these horrible guys’ who had done this to her son. That response was, ‘Ah a 619 T 602.4-9. 620 T 603.17-23. 621 T 585.8-10. 622 T 586.17-18. 623 T 586.26-29. 624 T 586.30-587.1. 625 T 587.1-2. 626 T 587.20-28. 627 The audio recording of the triple zero call is Exhibit P15. The transcript of the recording is MFI P34. -- 111 of 496 -- [2026] SADC 27 106 couple of Scotchies I think who were friends of friends and then Owen was saying he didn’t really want them there …’.628 521 Ms Dansie explained that at about the time she learned the applicant had been injured, Owen told her that the others involved in the incident had been the same individuals from Scotch who were the subject of her earlier conversation with him. It had been during that earlier conversation that she had learned that Owen did not really want them at the party.629 522 There were a number of people milling around when she called triple zero. When asked whether they appeared to be drunk or raucous, she said, ‘(a)bsolutely not’.630 She had told the triple zero operator that no one appeared to be aggressive. As to whether she considered there was any chance that someone else may be punched, she said:631 A. I - well, it clearly wasn't an all-in punch-up and what I understood from what I was told is that Mr Chattaway had taken a swing at one of the two gentlemen and they had - and somebody had swung back but had been more effective in connecting, in effect. That was my interpretation of what I had been told, and that the gentleman in question had left. So there clearly wasn't any other aggression or anybody having piled in or anything. So I wasn't concerned about that. Q. At what stage had you been told the gentleman in question had left. A. Probably around the time I was told about the - how Mr Chattaway got injured, certainly I was aware they weren't around, but I don't recall exactly how I was told. Q. Was there any mention within your hearing of any weapon having been used. A. Absolutely not. It was - I was told it was a punch. 523 In cross-examination, Ms Dansie was asked who had told her that there had been a punch. She said she could not recall but believed it was one of the people who were near the applicant or had brought him for first aid.632 524 She denied that anyone had told her anything about bottles being used as at the time she made the triple zero call.633 525 During the triple zero call, Ms Dansie said words to the effect of ‘can everybody who is not needed piss off’. She denied that this was indicative of her having drunk more than a couple of wines that evening and said she had been known to use such language, when sober.634 628 MFI P34 at p 10. 629 T 588.29-589.6; T 606.16-21. 630 T 590.1. 631 T 590.11-28. 632 T 599.36-600.20. 633 T 599.22-35. 634 T 604.23-605.10. -- 112 of 496 -- [2026] SADC 27 107 526 Ms Dansie’s recollection was that the applicant remained in the chair, near the backdoor, under the pergola, until he left the property in an ambulance.635 527 Before the ambulance arrived, the party had started to wind down and people were leaving. It wound down pretty quickly after that.636 528 That night they cleared up after the party, by picking up glass bottles and rubbish and putting them in the recycling or in the bin. She explained they had two dogs who were at a neighbour’s house during the party but that they needed to have the backyard clean for the dogs to return.637 She recalled bottles being placed in a recycling bin and thought there was a tub that they put out for the scouts. There was one or two tubs worth of bottles, not hundreds.638 Fourth respondent –Tony Stankiewicz Party preparations 529 Mr Stankiewicz gave evidence that a decision was made for a joint 18th birthday party to be held at their home for Owen and Kelly. They had previously held a number of parties at their home.639 530 It was agreed that the party would be on a weekend with a late afternoon start, as it was anticipated that guests would use the pool.640 531 There was to be a closed invitation list, insofar that as it was not going to be a general mail out, to keep the numbers down to a reasonable number of about 20 to 30 people.641 532 As to who was to be invited, Mr Stankiewicz gave the following evidence: 642 Personally I had a general discussion with Owen that all the people invited were known by him and were going to one of the schools that they were at and he indicated that was the case. 533 In cross-examination, the following evidence was elicited:643 Q. And it wasn't simply that the guest list would be limited to persons that he knew, it was also your requirement that he limit the guest list to people that you and he approved of. A. Yes, he would have to approve of it and if he approved and they had come from his schools, who both had a good reputation that I would find them acceptable because 635 T 629.6-21. 636 T 591.24-28. 637 T 592.1-14. 638 T 592.15-30. 639 T 513.16-25; T 515.1-7. 640 T 515.6-20. 641 T 513.35-514.1. 642 T 515.23-26; see also at T 534.24-29. 643 T 537.1-9. -- 113 of 496 -- [2026] SADC 27 108 I did not personally know them and he is an adult at 18, so I was treating him as an adult and responsible. 534 He could not recall having seen an invitation list. He recalled Owen saying that he would be limiting the number of people coming to 30 to 40 at the most, although he might invite more but did not expect them all to come.644 535 As the party was a joint party, the Stankiewicz’s were to provide the venue and the food and Kelly was to provide the non-alcoholic drinks.645 536 He planned to have a sausage sizzle and finger food such as potato fries, oven fries, potato crips, etc.646 537 On the day of the party, Mr Stankiewicz helped set up the backyard. He gave evidence that there was a fold up table, under the kitchen window at G9 on the grid. Under that table were two eskies; one full of soft drinks and another full of ice for those who had brought their own drinks to put in. These eskies were approximately 80 cm in length. The laundry sink was also used for any overflow of soft drinks.647 538 Before the party started, he positioned a small table on the lawn near the pool fence in the area at approximately G5 to G6 on the grid. This was as a square fold up table with director’s chairs around it.648 In cross-examination, he described this table as being about 900 x 900 in size, ‘probably smaller than a card table’.649 He believed there were about three or four chairs that were put around that table.650 539 Mr Stankiewicz described two three-person wooden benches that generally were kept under the eaves at about H7/H6 on the grid. He could not remember if he saw those bench seats being moved from their usual position on the night of the party.651 Lighting 540 During examination-in-chief, Mr Stankiewicz was asked about the lighting at the premises by reference to the photographs but not specifically asked about the lights that were on at the time of the party. As to the lights at the premises, he described a flood light on the south side of the house, under the pergola, at about G8 on the grid.652 In addition, there was a flood light located at the far end of the pergola, on the corner of the house at or about G5/6 or H5/6. That light faced on 644 T 536.9-13. 645 T 513.32-35. 646 T 514.2-6. 647 T 534.1-23; T 516.3-9. 648 T 519.4-12. 649 T 531.21. 650 T 531.10-532.11. 651 T 532.16-20; T 533.13-27. 652 T 512.15-20; T 526.18-21. The flood light can be seen in photograph 16 of Exhibit P2. -- 114 of 496 -- [2026] SADC 27 109 an angle across the yard in a north westerly direction. He also described a light at the back garage. 653 541 In cross-examination, he gave the following evidence:654 Q. So looking at G3 and 4 and H3 and 4, there was no direct lighting on those areas. A. Only from the spill from the flood, it is not a spotlight, it just splashes white. 542 He said there were two lights inside the pool, on the south side.655 When they used the pool themselves at night, they did not need any other lighting on in the backyard. He said, ‘you wouldn’t read with it but you could see people around the pool anyway’.656 In addition, there were fairy lights under the pool shelter and also two baton lights under that shelter.657 543 As to the lighting generally, Mr Stankiewicz gave the following evidence:658 Q. And the lighting, you've told us where it was and where the floodlights were, but how was it in terms of were there dark areas of the property you couldn't see into with the lights on in the evening, or could you see everything or what was the situation. A. If you were right down the back of the property at the far west or south-west there are a couple of areas that would have been in shadow from the lighting. Q. And apart from that. A. Apart from that, you probably won't want to read a fine-print book but you're not going to walk into the people in that area. The party – general observations 544 Mr Stankiewicz gave evidence that when the guests arrived, they entered via the carport and put their bags under the pool shelter.659 545 There was no one designated to be present at the entry to the garage, checking who was entering the party, although Owen was greeting people as they were entering.660 He gave the following evidence:661 Q. Consistent with your earlier evidence, you were content to allow Owen to conduct checking of guests and who was invited for the course of the party, because he was an adult and it was his party. 653 T 512.25-31; T 526.10-16; T 526.27-38. 654 T 527.1-4. 655 T 512.32-33; T 527.20-528.2. 656 T 528.6-7. 657 T 512.27-29; T 527.5-13. 658 T 519.29-520.2. 659 T 515.30-36. 660 T 546.17-19; T 546.36-37. 661 T 547.8-20. -- 115 of 496 -- [2026] SADC 27 110 A. And he also would have knowledge of who all of those people were. Q. That would be again in accordance with your earlier discussion with him, that the only people who were allowed to attend the party were those people that he knew and that he had invited. A. That he and Kelly knew. Q. And that they had invited. A. Yes. 546 At no stage did Mr Stankiewicz stop to interrogate any person at the party about whether they had been invited.662 547 Mr Stankiewicz had not personally undertaken any checks of people’s bags as they arrived to see whether they contained alcohol, nor was he checking as guests arrived to determine whether they were noticeably intoxicated.663 548 Mr Stankiewicz denied that alcohol was provided for guests at the party. As far as he knew, Owen had not brought any alcohol into the house that went into the party but he was aware that Owen had a 6 pack of stubbies in the kitchen fridge.664 He was unaware whether Owen had offered that alcohol to anyone else or if he had purchased any other alcohol for the evening.665 549 Mr Stankiewicz gave evidence that he believed that the invitees were 18, given that it was an 18th birthday party and that it was at the end of the school year. He was not policing the party to make sure that only guests who were over 18 were drinking alcohol.666 550 Mr Stankiewicz gave evidence that the party started off very quietly with people drifting in. He spent most of his time on the barbeque in the pergola area until it got dark. He said:667 I would then spend most of my time in the kitchen area because I would be coming out looking for empty cups on the ground, spilled food, you know, any bottles that have been finished, make sure the empties are taken out and new bottles of soft drink are in there, in the ice. The ice is still okay. And wandering back in. So I would be in and out but I wasn’t stationary in one spot. 551 As to how often he went outside, he said it wasn’t regular but probably every 20 or 30 minutes.668 662 T 547.21-26. 663 T 562.5-28. 664 T 560.22-561.8. 665 T 561.5-13. 666 T 563.17-20; T 522.36-37; T 544.27-33. 667 T 516.28-35. 668 T 516.37-38. -- 116 of 496 -- [2026] SADC 27 111 552 During the party, most of the guests were under the pergola area and by the side of the pool on the grass.669 Some guests were swimming.670 He recalled specifically that there was a group of about four to five people sitting or standing around the small table on the lawn near the pool fence.671 553 He did not know all of the guests at the party. However, he said that of those he had met in the past, there had never been any particular problems that he ascertained with any of them, such as to cause him not to want them at his property. He said that they ‘all seemed very pleasant responsible people’.672 He did not notice anything, as the guests arrived, to suggest there might have been a problem.673 554 Mr Stankiewicz was also asked about whether any of the guests had come inside during the evening. He said that some would wander in to go to the toilets and that people were coming in and out pretty regularly. There were two toilets which he had occasionally entered during the night to see if the toilet paper needed topping up or similar.674 555 As to whether, at any stage, he noticed or observed anyone vomiting in the toilets, he said:675 No, didn’t see any trace of that. If they did that they cleaned up really well, including the smell. Alcohol consumption 556 Mr Stankiewicz said that during his patrols outside, he had not observed any signs of excessive consumption of alcohol. He said:676 A. I did not see anyone, observe anyone showing such symptoms, but I was not singling any person out for that, it was just the people that I was viewing as I walked around collecting things, as I stated. 557 He did not observe anyone to be unsteady on their feet or to be slurring their words. However, he qualified this response to confirm that he did not see the applicant consuming drinks at the party. He was unaware what, if any, alcohol, the applicant has consumed before he arrived at the party and he had not had any direct conversations with the applicant during the party. He said there was nothing to alert him to the fact that the applicant may have been over the limit.677 669 T 518.5-7. 670 T 545.36. 671 T 519.13-17. 672 T 517.14-15. 673 T 517.19. 674 T 518.8-24; T 528.34-38. 675 T 518.27-28. 676 T 545.11-14. 677 T 549.4-34. -- 117 of 496 -- [2026] SADC 27 112 558 When asked if his primary focus when outside was to clean-up, rather than supervise, Mr Stankiewicz said:678 A. I was just watching how things were going generally, that there were no obvious issues, and doing a clean-up, trying not to be intrusive and affect the party. Q. When you say, 'obvious issues', what do you mean by 'obvious issues'. A. Things like power cords unplugged near water. Anything that could be a tripping issue, anything that was dropped, or glass that may have been brought in, smashed and not noticed. Q. And you considered that to be your responsibility as the home owner. A. Yes. 559 It was suggested to Mr Stankiewicz that he had not taken any steps to determine whether, when guests arrived, they were slurring or unsteady on their feet and that he had simply left this to Owen. He said:679 A. I left that to the other adults there, the other people there and Owen and Kelly, and I did have vision through - from the times that I was walking around, or cooking that I saw people, but did not notice anything out of the ordinary. 560 As to the alcohol consumed by the adults, Mr Stankiewicz gave evidence that at the start of the party he had maybe half a glass or one glass to toast Owen but that otherwise, he had been consuming soft drinks.680 He said that both his wife and the Allans would have had a glass of wine but denied that they were ‘just scoffing wine’.681 He gave the following evidence:682 Q. But wasn't that the case during the course of the party, that from time to time the four of you had a glass of wine. A. Well, I know that I had one glass of wine and then didn't drink. That's why I said I did not count the others but they occasionally had wine. Whether it was one glass that lasted a long time or multiple, I wasn't counting. Q. And wasn't it the case that for most of the evening before the incident, the four of you were standing in the kitchen/lounge area talking to each other. A. Not - I wouldn't have said the four. There was usually a person missing, doing something, checking something, showing people where the toilets were, that type of thing. 678 T 545.22-33. 679 T 550.2-6. 680 T 518.29-37. 681 T 556.25-557.22; T 558.5-11. 682 T 558.24-38. -- 118 of 496 -- [2026] SADC 27 113 Conversation about uninvited guests 561 Mr Stankiewicz recalled a conversation with Owen in the following terms:683 A. A couple of people that Kelly had invited he thought were a bit of a pain in the butt, but he had talked to them and they said 'It's a party, we're going to be on our best behaviour', so he was fine with it. Q. Did you know who those people were. A. I didn't know the people, he didn't point them out to me, so - and I didn't know the people by name as they were mainly Kelly's friends. 562 In cross-examination, Mr Stankiewicz recalled that this was a comment Owen had made to him in passing, rather than coming specifically to talk to him on the subject.684 He recalled saying to Owen, words to the effect of, ‘As long as you’re happy to have them there, that’s fine’.685 He was content for a guest (or guests) to stay, provided that both Owen and Kelly agreed with that.686 He saw no need to take any further action.687 The incident 563 When he first heard of the incident, Mr Stankiewicz was in the kitchen, at the sink, doing some washing up. He said:688 A. Well, the first thing I heard out of the ordinary was a couple of the girls came in saying that someone hit Chattaway and I was actually washing up at the time because I remember my hands were wet and went out to find out what was going on. Q. And when you say you were washing up, that would be at the sink that was shown in the photographs where there is the window looking out at the backyard. A. Look out into the backyard. Q. And you hadn't seen anything out of the ordinary looking out the back. A. Nothing, the people were still talking when I went out, there were still people talking that hadn't known anything had gone on. 564 Mr Stankiewicz was asked what he could see of the party from his position at the kitchen sink. He said he could see out to the area marked G4/5 on the grid as there was a direct view out of the windows. In addition, you could see ‘an edge’ of the area at H4 and H5 and to the edge of the pool at E4.689 683 T 520.17-24. 684 T 551.36-37. 685 T 552.7-8. 686 T 552.23-36. 687 T 552.37-553.1. 688 T 520.35-521.10. 689 T 530.4-531.9. -- 119 of 496 -- [2026] SADC 27 114 565 He did not see the incident occur.690 It was suggested to Mr Stankiewicz that he had not done so as he was simply not paying attention to what was going on outside because he had left it to his son, Owen, to police the party. Mr Stankiewicz said:691 No, I did not leave it to Owen to totally police the party, but I did not want to be obtrusive in policing it or looking if anything was happening, but there was nothing there that would alert me to something building up or happening at any of the times that I was out or looking up. 566 After learning of the incident, Mr Stankiewicz went outside with others into the pergola area and saw the applicant walking, with someone, up under the pergola, holding his nose. When asked whether the applicant was saying anything, he said:692 The only thing I can remember was that his nose, it’s hurting, but he had his hand over his nose and he was bleeding so he was talking into his hand, so it wasn’t a clear conversation, if you like. 567 Mr Stankiewicz asked someone to bring over a chair. The applicant sat down in that chair somewhere in the vicinity of G8 on the grid, near the door. He stood about three feet away from the applicant. He saw the applicant was bleeding from the nose, so he called out for the people inside to come and bring a wet pack or a wet flannel.693 He then ‘stepped back’ because others (his wife, Tim and Keryn Allan) were with the applicant. 568 When asked as to whether an ambulance was called, Mr Stankiewicz gave the following evidence:694 A. An ambulance was called later. Megan did say, was going 'Looks like we may need an ambulance' because it looked like more than just a blood nose, because we didn't know what it was at that stage and one of the partygoers said 'He is 17' which surprised us because we thought everyone was 18, and under that note when they volunteered that they had his mother's phone number Megan decided or tried to ring her first to advise her that she was about to call an ambulance, or not, you know, and was told 'No, I'll be there right away, don't call an ambulance', so parents override what we would do and we wait for about five minutes. Q. Did his mother then arrive. A. His mother then arrived. Q. Did you hear any discussion with her. A. I heard a discussion with Megan trying to convince her to call an ambulance and she was saying 'No, I'll take him home in the car and look after him', we said you know 690 T 554.8-10. 691 T 554.24-29. 692 T 521.21-24. 693 T 521.27-522.8. 694 T 522.32-523.19. -- 120 of 496 -- [2026] SADC 27 115 'He's bleeding a lot, he is going to bleed all over your car, if you get an ambulance they can work out what's wrong, they are set up to control bleeding and they'll look after him properly', and eventually she relented and said 'Okay, you can ring'. Q. And did that happen. A. I believe Megan was the one that rang the ambulance, yes. 569 He left the ongoing care of the applicant to the professionals. 570 Thereafter they decided to close the party down because the applicant had gone and other guests had drifted off.695 After the party 571 Mr Stankiewicz saw Mrs Chattaway briefly on the night of the party when she arrived. He then saw her again two or three days later. She rang to say that she believed the applicant had been hit with a bottle and asked if she could come to look at the bottles from the party. He told her that they were in the scout recycling, ready for the next scout drive.696 572 He was home when she came to do that. He said:697 ... She came down, tried to find anything that had traces of anything look that looked like it had been used to hit, blood or hair or what. Everything looked normal, she just took any heavier bottle she could find. 573 Mr Stankiewicz gave evidence that by that time, all the bottles had already been cleaned up and had been put in recycling baskets, located between the pergola and the carport, ready for the scouts to collect.698 Owen Stankiewicz (Owen) General 574 Owen Stankiewicz (Owen) gave evidence and, in addition, a statement he provided to police dated 11 January 2011, was tendered by the applicant.699 There were several significant differences between Owen’s evidence and what he told the police, with those differences being the focus of cross-examination. 575 At the time he gave evidence, Owen was employed as a marketing manager.700 695 T 523.36-524.5. 696 T 525.1-6. 697 T 525.6-10. 698 T 525.17-31. 699 Exhibit P9. 700 T 632.7. -- 121 of 496 -- [2026] SADC 27 116 Relationship with the applicant 576 Owen gave evidence that he first met the applicant through a mutual friend, Terrence Wilkinson (Terry), about three or so months prior to his 18th birthday. Terry had played rugby with the applicant.701 577 Prior to the party, he had socialised with the applicant both at Terry’s house and at the applicant’s house and they had attended at least eight or nine parties together.702 578 Owen was asked about his general observations of the applicant’s personality at that time. He said:703 He was a very erratic kind of guy, I think. My understanding was he didn't perform very well in school. He was, came off maybe a little bit on the spectrum, or antisocial. He played rugby, so he was definitely a bigger guy. He liked to certainly roughhouse a little bit. He certainly wasn't afraid of, you know, physical sports and mucking around with a bit of bad behaviour. 579 He said that the applicant would do things like ‘bodycheck people’ as he walked past them to see if he could get a reaction out of them.704 This was not something the applicant had done to him but it was something that he had seen him do with those he played rugby with. He said, ‘I always saw it as a friendly thing’.705 580 Owen described the applicant as either ‘your best friend in the world and everything was very exciting and he wanted to have a great night, or he’d be in a very depressive state. There wasn’t a very comfortable in between.’706 581 In cross-examination, Owen was asked by the second respondent whether the applicant’s behaviour was predictable, particularly when he was in a depressive kind of state. He said:707 The issue I have with predicting Nick's behaviour when I knew him and got closer to him over those four, three months that we were closer friends at the end of year 12 was that the majority of the time that we were seeing each other was at parties, so he was either under the influence of drugs or alcohol. 582 He explained that he had seen the applicant smoking marijuana and crushing up and snorting Ritalin.708 583 In cross-examination, Owen clarified that he may have known the applicant for longer than three months but that he was closer to him for a period of about 701 T 633.32-634.1. 702 T 634.2-13. 703 T 634.16-22. 704 T 693.31. 705 T 693.38. 706 T 694.13-17. 707 T 695.20-25. 708 T 696.5-15. -- 122 of 496 -- [2026] SADC 27 117 three months before the party.709 He stayed in contact with the applicant for many years after the party, including after he had returned from China. He said:710 He was a very changed person when he came back, but I didn’t delve into what he was doing in China. 584 In his police statement, Owen stated that he had known the applicant for about a year and that they were really good friends who would see each other every two or three weeks. He said that he had never seen the applicant ‘be violent or aggressive’.711 585 As to a potential inconsistency between that comment and the evidence he gave about the applicant ‘body checking’ others, Owen said, that what he meant in his police statement, was that he had never seen the applicant hit anybody. He had never seen him start a fight with a stranger and it was not something he would have expected to happen.712 As to whether ‘shoulder checking’ another person was aggressive behaviour, he said:713 I suppose in the context of talking to police about assault I didn’t think that something that a lot of my friends have engaged in, which is, you know, rough housing would be in the same category. 586 Later, when further cross-examined as to this potential inconsistency in his evidence, Owen gave the following evidence:714 Q. I also suggest that when you told the police that you had never seen Nick Chattaway be violent or aggressive before that is in fact the truth, would you agree with that. A. It's a spectrum isn't it, violence and aggression? I've seen him be aggressive, I've never seen him - someone's interpretation of shoulder checking someone could be violence, I've never seen him assault anybody. Q. Just to be clear what I'm referring to is, and tell me if your answer changes, what I'm referring to is at the point in time you said that to the police, January 2011, in the time before then you had not seen Nick Chattaway be violent or aggressive. A. I'd seen him be aggressive but I hadn't seen him being violent in the context of him attacking somebody he doesn't know. Q. I suggest to you that is not true and the reason why you have suggested you observed him to shoulder or body check people and to behave in a way that suggested he had bipolar is to effectively engage in character assassination of him. A. No. 709 T 691.30-31. 710 T 692.13-14. 711 Exhibit P9 at [14]. 712 T 754.17-18; T 755.9-11. 713 T 754.36-755.1. 714 T 762.33-763.16. -- 123 of 496 -- [2026] SADC 27 118 Relationship with Lloyd and Dunn-Lawless 587 Owen knew both Lloyd and Dunn-Lawless as they all attended Scotch College and rowed together. 588 Owen gave evidence that Lloyd was in a different friendship group and although they knew each other quite well, they did not get along very well. This was because Lloyd was ‘a bit of a bully, a bit of an aggressive person’.715 He described an incident when he had an argument with Lloyd at a rowing regatta. They were fighting to the point that they were wrestling on the ground and he ended up getting Lloyd in a headlock.716 589 Owen gave evidence that he had attended several parties where Lloyd was present and had never seen him fighting at a party. However, he knew that Lloyd had been in fights at school and that he had heard of incidents at other parties, involving Lloyd.717 He had seen Lloyd drunk at parties, which he said brought out an amplified version of his personality that he already did not like.718 590 Owen described his relationship with Dunn-Lawless in somewhat different terms. He said they had a number of classes together and they would spend a fair bit of time together in the schoolyard and in their homegroup, despite not having the same friendship group. He described their relationship as ‘pretty neutral’.719 591 Owen described Dunn-Lawless and Lloyd as close. He said:720 ... My impression was [Lloyd] was a bit more of an instigator. I know that they were close together and maybe [Dunn-Lawless] would follow along with that sometimes, but he wasn’t actively aggressive towards me. 592 Owen gave evidence that he had never seen Dunn-Lawless fighting at a party, nor had he ever been in a physical altercation with Dunn-Lawless.721 593 Owen did not invite either Lloyd or Dunn-Lawless to the party.722 594 In his police statement, Owen said:723 I’ve seen what [Lloyd] can be like when he’s drunk at parties, so I didn’t really want him there. I didn’t really associate with him at all. I’m aware that he has, in the past, got into fights and tried to get into fights at other parties, and people have had to hold him back. 715 T 635.1. 716 T 635.28-33. 717 T 682.7-13. 718 T 682.8-10. 719 T 635.18. 720 T 635.19-23. 721 T 636.6-8. 722 As outlined below, Owen later gave evidence that he learned that Kelly had invited them to the party. 723 Exhibit P9 at [6]. -- 124 of 496 -- [2026] SADC 27 119 Party organisation 595 Owen recalled the planning for the party commenced about two and a half months prior, as it was the end of the school year and people were already making plans for what they were doing at that time. He needed permission from his parents as to what they could do, as he had never hosted a party at his house with that many people. He said his parents were ‘quite adamant about having a good understanding of what the party was going to look like far in advance’.724 596 He explained that his parents wanted there to be no more than 70 people in attendance.725 597 He could not recall ever showing his parents the invitation list but he recalled having a conversation with them regarding the number of invitees.726 His parents did not want anyone who either he or Kelly did not know, to be attending the party, nor were any ‘plus ones’ allowed.727 598 The party had a designated 4:00pm start to ensure that it was still warm enough for them to swim. The invitation stated, ‘BYO drinks bathers and chairs’. He explained:728 Well, BYO drinks, obviously being at the end of year 12, there are some people who are still underage, so I think my parents' perspective was if you're able to bring your own drinks, you must be 18. Bathers was in case you wanted to go for a swim in the evening. And chairs was because we only really had a small outdoor setting, so there was enough chairs for everyone to sort of sit outside and sit by the pool. 599 He had a discussion with his parents that they would provide Owen with his drinks but they would not supply alcohol for anybody else.729 Party preparations 600 Owen gave evidence that the applicant and Will Allen came to his home in the afternoon to help him set up for the party. There were others also helping to set up, including Kelly, Kelly’s mother and Dechlan Heames.730 601 He could not now recall the specific time that the applicant arrived but said they had started setting up for the party at 2:00pm and he remembered the applicant helping him set up.731 602 Owen recalled there being an esky and some ‘plastic carriable containers’ set up against the house under the verandah at about G9 and F9 on the grid.732 There 724 T 636.32-33. 725 T 636.37-637.4. 726 T 644.33-37. 727 T 645.2-6. 728 T 640.3-10. 729 T 640.15-17. 730 T 645.10-15. 731 T 759.8-18. 732 T 645.26-36. -- 125 of 496 -- [2026] SADC 27 120 was water, soft drinks and his beers in those eskies.733 There was also a table near the drinks at F9/G9 on the grid where there were snacks and party pies and a similar set up on a little folding table.734 603 He also recalled setting up a little wooden table about the size of a card table and two bench chairs in the grassed area in the back yard at approximately H4 on the grid.735 604 There was a barbeque running under the pool shelter, with a sausage sizzle provided by his father.736 Guests arrive at the party 605 Owen gave evidence that most of the guests started arriving at the party at about 4:30pm.737 Guests would enter via the carport.738 He recalled being in the area by the pool (under the pool shelter) with his friends, including Will Allen and his girlfriend, Alex Donovan, as guests arrived.739 606 In his police statement, Owen said the party started at 4:00pm and he estimated that there were about 20 people there at about that time. By 7:00pm, that number had grown to 50 or 60 people.740 607 Owen gave evidence that his parents and other adults were outside at times among the party area and party guests. He said:741 Well, my parents are friends with a lot of my closer friends. They were just coming out and chatting to them, some of them like Tim Allan who had no relation to Will Allen, but they were both into AVs so they were quite close to them and were having a couple of conversations. Then my dad was obviously in and out emptying stuff out of the recycling bin and cooking the barbeque and just generally being the host. Conversation about uninvited guests 608 Owen gave evidence that he was under the glory vine (that is, the pergola) with the applicant, Dechlan Heames and possibly Will Allen, when someone came and told him that Dunn-Lawless and Lloyd were at the party.742 As he had not invited them, he assumed they had turned up uninvited. 609 Lloyd and Dunn-Lawless were at the card table on the grassed area. There were some other people around, including some of the Scotch girls, just sitting at the 733 T 647.34-35. 734 T 646.14-17. 735 T 647.5-21. 736 T 646.12-14; T 647.26. 737 T 648.35. 738 T 649.5-14. 739 T 648.37-649.4. 740 Exhibit P9 at [3]. 741 T 650.17-24. 742 T 650.25-651.2. -- 126 of 496 -- [2026] SADC 27 121 table having their own conversation.743 He remembered a group of people on the lawned area around a table, including Jordana McCallum and Megan Voo. He also had a memory of seeing Bryony Hardy around that area.744 610 Owen gave evidence that he walked over to Lloyd and Dunn-Lawless, accompanied by the people who he was with (including the applicant), to have a chat with them about the fact they were there, apparently uninvited. As to how this conversation commenced, Owen gave the following evidence:745 Well, I just basically came over and said 'Hey, what are you guys doing here?'. They were I think taken a bit aback because they had been invited by Kelly which was a surprise to me at the time and said 'No, Kelly had invited us'. So I then felt sort of rude because I felt like, you know, it was Kelly's party as well so I had then, you know, said you know 'You know, look, guys don't cause any trouble', and they said 'No, no, don't worry, we won't'. I then stayed on for probably half an hour chatting to [Lloyd]. I think [Dunn-Lawless] left after a while and we continued talking. 611 He described Lloyd and Dunn-Lawless as being taken aback and quite apologetic. They had said to him, ‘(l)ook, you know, we Are just going to stay down here and do our own thing’.746 612 Owen described the subsequent conversation he had with Lloyd as quite reflective about their relationship. Lloyd apologised to him ‘for being a bit of an arsehole’. Owen had said words to the effect of ‘(l)ook, Kelly had invited you, no worries, just hang out’.747 613 Owen was asked whether he took the applicant with him to talk with Lloyd and Dunn-Lawless ‘for back-up’. He gave the following evidence:748 A. No, he just happened to be with me and the people I was talking to. Q. What about Dechlan Heames. A. The same thing, we were just all sitting - we were standing, sorry, together so as you do as party, you sort of move as a group sometimes. 614 He said neither Lloyd, nor Dunn-Lawless, were verbally or physically aggressive to him during that conversation. 615 Owen was cross-examined about potential inconsistencies in what he had said in his evidence about the conversation with Lloyd and Dunn-Lawless and what he had told the police about that conversation. 743 T 651.25-38. 744 T 689.16-27. 745 T 651.8-18. 746 T 652.8-9. 747 T 652.15-16. 748 T 653.2-7. -- 127 of 496 -- [2026] SADC 27 122 616 In his police statement, Owen stated that at about 8:00pm, he saw Lloyd and Dunn-Lawless sitting around a big table with an umbrella, on the lawn, smoking and drinking. He stated:749 I knew that neither of these guys had been invited and I didn’t want them there. I got a couple of my friends, Nick Chattaway and Dechlan Heames, and approached them. I said to them both ‘you’re not invited, can you please leave’. 617 Owen gave evidence that he could not now recall whether Lloyd and Dunn- Lawless were sitting or standing at the table.750 He maintained that he did not specifically seek out the applicant and Dechlan Heames to come with him for this conversation, rather they had just happened to already be talking with him.751 He then gave the following evidence:752 Q. So why does the phrase read 'I got a couple of my friends, Nick Chattaway and Dechlan Heames and approached them' as opposed to 'I was with the Nick Chattaway and Dechlan Heames and they came with me'. A. I can't say why I used that specific language but that's the course of events, was they were already with me and I went up and spoke with them as a group. Q. Do you agree that the only reasonable interpretation of 'I got a couple of my friends', two named people, 'and approached them' is that you got those people as in you obtained them to come with you. A. I think I might have said something along the lines of 'I'm just going to talk to these guys' and they just followed me but I didn't specifically invite them to come along. Q. That's in the context of a man who in your view was not invited to party, you were going to talk to such a person. A. Correct. Q. And you've had a physical fight with this person before. A. Correct. 618 He said he had specifically mentioned both the applicant and Dechlan being present for this conversation in his police statement as they were the only ones who were part of the conversation who were not otherwise from the Scotch group.753 619 In his police statement, Owen described his conversation with Lloyd as including the following:754 I said “As long as you don’t start any fights or get disgustingly drunk, you can stay” 749 Exhibit P9 at [4]. 750 T 710.1-8; T 711.17-26. 751 T 711.38-712.2. 752 T 712.3-23. 753 T 731.15-17. 754 Exhibit P9 at [6]. -- 128 of 496 -- [2026] SADC 27 123 Jack said “Yeah, of course”. 620 Owen gave evidence that he could not recall having had that conversation. He said:755 I remember, as I said yesterday in evidence, that I came up to them, asked them why they were here if they weren't invited. They said Kelly had invited them. They even preempted me saying anything saying 'We're not going to cause any trouble, we're just going to hang out here'. I don't remember saying to them the terms 'Don't have a fight and don't get disgustingly drunk'. 621 Owen maintained that he did not specifically seek out the applicant and Declan (being two large people) for the purpose of this conversation. He said, ‘I didn’t specifically ask them to come as muscle if that’s what you’re implying. There were bigger people at the party that I could’ve asked’.756 He described the fact they were with him during this conversation as a coincidence because they had happened to be already talking to him, prior to that conversation.757 622 Owen was cross-examined at length about the conversation he had with Lloyd in particular. He gave evidence that he did not say that they were not invited, rather he had asked them, ‘Why are you here?’ In response, they (Lloyd and Dunn- Lawless) said that Kelly had invited them.758 Owen did not immediately verify that with Kelly but did so after his more lengthy conversation with Lloyd. He confirmed that he had decided to allow Lloyd to stay before he had spoken with Kelly. He explained that both Lloyd and Dunn-Lawless had been very apologetic and the conversation had ended quite positively.759 623 Owen gave evidence that he had no reason to believe that either Lloyd or Dunn-Lawless were acting aggressively or that they were drunk at the time. It seemed that it was only fair that if Kelly had invited them and they were acting respectfully and behaving normally that they should be able to stay.760 624 As to whether he would have allowed Lloyd to stay if Kelly had said that he was not invited, Owen said:761 I think I would have asked him to leave if neither of the hosts of the party wanted him there, yes. 625 It was not only because Kelly had in fact invited Lloyd that he allowed him to stay. He said it was a combination of that fact, the positive conversation he had 755 T 712.35-713.3. 756 T 713.8-11. 757 T 713.18-19. 758 T 716.25-31. 759 T 717.21-25. 760 T 717.35-718.2. 761 T 725.24-25. Noting that the transcript contains an error ‘them’ appears at line 25 in lieu of the word ‘him’. -- 129 of 496 -- [2026] SADC 27 124 with Lloyd and the fact that there were no feelings of aggression between himself, Lloyd or Dunn-Lawless during the conversation.762 Conversation with his mother about uninvited guests 626 Owen gave evidence that sometime after the positive discussion he had with Lloyd, he went inside and told his mother about that conversation. He told her that it had been somewhat ‘cathartic’, as he had buried the hatchet with somebody that he had not previously gotten along with.763 As to how that conversation had come about, he said:764 I think we just bumped into each other and they just asked me how it was going, and I just brought up that conversation because it was, I guess, of significance. (my emphasis) 627 In cross-examination, Owen denied that he told his mother that Lloyd was at the party, he had not invited him and did not want him to be there. He said:765 I don’t even know if I would have given his name to my mum. I remember just having a conversation that someone that I didn’t get along with was here, that we’d made amends and that was a positive thing and that Kelly had invited them. Alcohol consumption 628 Owen gave evidence that he drank about eight to 10 beers during the party.766 In his police statement, Owen said he consumed four Corona beers and a couple of cocktails during the party.767 629 When cross-examined about this potential inconsistency, Owen said he had no recollection of consuming any cocktails at the party (which, by his definition, could include a spirit with a mixer). He could only recall drinking beer. He agreed that it was possible that others were drinking cocktails at the party.768 630 He did not recall participating in any celebratory toast or drink during the evening.769 631 Owen gave evidence that when he first saw Lloyd and Dunn-Lawless at the party, they were drinking. He had a specific memory of a longneck, sparkling red label Coopers Beer. He could not recall whether it was Lloyd or Dunn-Lawless who was drinking that bottle, he just remembered that bottle.770 632 He could not recall if either Dunn-Lawless or Lloyd were drinking wine, or if there were any other bottles or plastic cups on the (card) table or if any of the 762 T 727.20-26. 763 T 672.27-31. 764 T 672.34-36. 765 T 720.27-31. 766 T 673.7-9. 767 Exhibit P9 at [17]. 768 T 758.1-759.3. 769 T 649.15-19. 770 T 723.29-38. -- 130 of 496 -- [2026] SADC 27 125 girls at the table were drinking Passion Pop.771 He had no specific recollection of clearing up or collecting Passion Pop or sparkling wine/champagne bottles after the party.772 He gave the following evidence:773 Q. So, as best you can recall, it was just one or more bottles of Coopers sparkling ale. A. That [Dunn-Lawless] and [Lloyd] were drinking, yes, but they were holding those, from my memory. 633 Owen gave evidence that he saw the applicant drinking beer and spirits during the party.774 He said:775 He had been drinking since we started setting up at 2 o’clock. I hadn’t seen him stop drinking all night. 634 Owen was not asked to provide any further detail as to where he observed the applicant drinking and did not give any evidence that he saw the applicant drinking beer in the pool. However, he did give evidence that there was no glass allowed in the pool. He said:776 My dad, like he's a very organised person so there were signs along the pool fencing and I believe on the gates and then there was plenty of plastic cups provided for people to pour their drinks into. 635 In his police statement, Owen described the applicant’s behaviour and consumption of alcohol during the party, in the following terms:777 He certainly wasn’t drinking that much at the party. He was pretty coherent at all times that night and seemed happy the entire night. 636 As to what he had told the police, Owen gave the following evidence:778 Q. Do you agree that that is true with reference to Nick that night. A. I wasn't monitoring how much he was drinking. He didn't appear completely coherently drunk or anything like that. I think he certainly could drink a lot. So what could be a lot for someone else wasn't as much for him and he certainly was drinking a lot but was pretty coherent. Q. So you are saying that relatively speaking he wasn't drinking a lot for him and that he was coherent, is that how that sentence should read. A. Yes. 771 T 724.1-6; T 724.26-33. 772 T 724.7-25. 773 T 724.34-37. 774 T 656.3. 775 T 656.5-6. 776 T 653.30-33. 777 Exhibit P9 at [14]. 778 T 755.36-756.9. -- 131 of 496 -- [2026] SADC 27 126 637 Owen reiterated that he was not monitoring the applicant in terms of his alcohol consumption but that he recalled the applicant had started drinking when he arrived, which was at about 2:00pm. He said, ‘he had a drink in his hand every time I was with him.’779 He later clarified:780 I’m not sure how much he was drinking. The only thing I could do was watch his behaviour and he was not acting as I had seen him in the past, you know, drunk. 638 He gave evidence that the applicant was coherent during the party in the sense that he was able to have a conversation with him. He had no recollection of the applicant being especially drunk.781 He said:782 ... I have seen a lot of instances where Chattaway was drunk and incoherent and he wasn’t that at this party. 639 Owen was not asked about whether he observed any girls vomiting in the bathrooms. He could not recall participating in any celebratory toast. He was not questioned specifically as to whether he recalled the adults drinking alcohol during the party. General party atmosphere 640 When asked to describe the general atmosphere of the party, Owen gave the following evidence:783 Up until the unfortunate events that happened, it was very relaxed atmosphere. Most people there knew each other so everyone was getting along well. It was just relatively quiet music playing. My parents were pretty aware of the neighbours so they'd already gone around and spoken to them about it. People were dipping in and out of the pool. There were two, I guess, main groups; one under the - by the pool, and one in the yard, and a big sort of open gap between those two groups. And just very relaxed and casual atmosphere. 641 Owen was asked if whether, prior to the incident, there was anything that had been raised with him about the possibility of trouble at the party. He said:784 Only my concern that, as we discussed yesterday, that someone had arrived uninvited. But then after clarifying that they had been invited, no, no concern. 642 As to whether there were any actions of any guest that may have suggested that there would be trouble, Owen said:785 No. I think somebody broke some glass at one point but that’s the only thing I can remember. Someone had dropped a bottle on the ground, that was about it. 779 T 756.30. 780 T 756.35-38. 781 T 757.1-8. 782 T 757.13-15. 783 T 673.28-37. 784 T 674.3-5. 785 T 674.8-10. -- 132 of 496 -- [2026] SADC 27 127 The incident 643 Owen did not witness the incident. 644 He gave evidence that when he first learned of the incident, he was standing under the paved glory vine area (approximately G8 or G7 on the grid). There was some commotion going on in the backyard. He saw the applicant in the area at approximately G5 or G6 on the grid, that is on the grass, coming onto the paved area. He described the applicant as stumbling out into the light being cast by a sensor light at the back of the house. He was ‘just walking out’ and a couple of people were going to him.786 He said:787 It immediately looked like he was drunk, or had drunk too much. 645 As the applicant walked up to the paved area, he saw that he had a blood nose. He thought the applicant might have fallen over because he had drunk too much. A couple of people asked to bring over a chair and some towels and stuff to help him out.788 Someone had alerted his parents and they were already in the backyard trying to work out what was going on.789 646 Owen gave evidence that he did not realise straightaway what had happened because the applicant was not coherent at the time. He said, ‘No one knew what had happened until sometime later .’790 There was no talk about a bottle being used, either at the time he first went over to the applicant after the incident, or at any time during the party.791 647 Owen gave evidence that his mum had called the applicant’s mum, who said she would come and pick him up. His mother had said that they should call an ambulance but the applicant’s mother had said, ‘No I’ll just come and pick him up’.792 He said he was about three to four metres away, observing his mother, during this conversation.793 He added that:794 It didn’t sound it wasn’t an irregular occurrence that she would have to come and pick him up from a party ... 648 He did not see Lloyd or Dunn-Lawless during the period when he observed the applicant coming out of the light and then being taken to the chair, nor did he see them leave the party.795 786 T 655.4; T 654.2-655.8; T 732.13-16. 787 T 655.12-13. 788 T 655.15-21. 789 T 655.31-33. 790 T 684.3-4. 791 T 656.10-11; T 676.13-17. 792 T 656.25-26. 793 T 656.23-31. 794 T 656.15-17. 795 T 674.11-23. -- 133 of 496 -- [2026] SADC 27 128 649 He stayed near the applicant until the ambulance arrived. His parents were trying to get people to begin leaving and to clear out the way for the ambulance.796 650 Owen was asked if there was any discussion amongst the party guests as to the cause of the injury after the applicant had left in the ambulance. He said:797 Nobody knew at that time, it was only once people realised that [Dunn-Lawless] and [Lloyd] had left the party that people had assumed that something had happened with them. My only – sorry, there was people talking at that stage. 651 Owen gave evidence that after the police left, someone saw Lloyd and Dunn- Lawless out in the street. He went out and spoke with them. He thought they had come back to the party to see the aftermath of what had happened. He remembered speaking to them, during which they did not admit anything that they had or had not done but had apologised that the evening was ruined.798 He said:799 I think they said at the time that they had gotten in an altercation with Nick, but they didn’t go into any specifics as to what happened. 652 In his police statement, Owen gave a different version of what occurred immediately prior to and after the incident. 653 In his police statement, Owen explained that there was a lemon tree in the backyard which the boys were using as a urinal. He told the police that between about 11:00pm and 11:30pm, he saw the applicant go around the corner towards the lemon tree and saw Lloyd follow behind him by about three to four steps. He then said:800 About five or ten seconds after they went around the corner, I saw [Dunn-Lawless] run from near the table to where [the applicant] and [Lloyd] had gone. From where [Dunn- Lawless] was he may have been able to see what was happening between [the applicant] and [Lloyd]. I didn’t really think anything of it. I couldn’t see if he had anything in his hands, but he may well have. 654 He told the police that about two minutes later, he saw Lloyd and Dunn- Lawless heading towards the gate leaving in quite a hurry. He saw his parents rushing outside with towels and it was then that he realised that the applicant had been injured. He told the police:801 All I could really understand from what he was saying was that he was taking a piss and that [Lloyd] and [Dunn-Lawless] came over. I couldn’t really understand anything else he said. 796 T 674.28-33. 797 T 676.6-12. 798 T 676.22-29. 799 T 676.36-38. 800 Exhibit P9 at [9]. 801 Exhibit P9 at [10]. -- 134 of 496 -- [2026] SADC 27 129 655 Owen also told the police that there was blood streaming around the applicant’s mouth and nose and all over the front of his shirt. He said:802 I realised straight away that he’d obviously been assaulted by [Lloyd] and [Dunn-Lawless]. I looked for them but they’d left. 656 During his evidence-in-chief, Owen was asked to explain the differences in his evidence and what was set out in his police statement as to those observations. 657 Owen explained that in the five weeks between the time of the incident and when he signed his police statement, there had been numerous discussions (or gossip), both in person and on social media, about what had happened at the party.803 658 He explained that when he gave his statement to police, he thought his statement would be one among many statements. He said:804 … It wasn’t the right thing to do, but I was trying to help Nick out in this case as a friend, and solidify the story that he had put to me and that everybody else in our friendship group had agreed upon were the series of events that had happened. 659 He gave evidence that he did not see the applicant going around the corner being followed by Lloyd as he had told the police. He said that this was the series of events that had been agreed upon or was the applicant’s story as conveyed to him.805 660 He did not see Dunn-Lawless running from the table towards the applicant and Lloyd at the lemon tree. He did not see Lloyd and Dunn-Lawless leave the party. People had told him that they had left the party in a hurry.806 661 Owen was cross-examined at length by counsel for the applicant about the inconsistencies in his evidence and police statement on the circumstances of and incidental to the incident (and his later discussions with Lloyd and Dunn-Lawless after the party). Owen acknowledged that he had not been completely truthful when he spoke to the police. He said:807 I was trying to provide a positive story for Chattaway, who was my friend at the time. It wasn’t the right thing to do in hindsight but that’s the truth. 662 Owen maintained that his memory of the night was very good up until the ambulance arrived.808 However, he acknowledged that his memory of the events of 802 Exhibit P9 at [11]. 803 T 681.5-8. 804 T 683.4-9. 805 T 683.14-17. 806 T 683.18-33. 807 T 702.6-9. 808 T 699.17-18. -- 135 of 496 -- [2026] SADC 27 130 the party was better as at the time he gave the police statement on 11 January 2011 than it was at the time he gave evidence.809 663 Owen explained that when he spoke to the police, he wanted the applicant to have justice. He said:810 There was a story that Nick and his family had put to me as to the truth. There was a story that all of our friendship group had agreed upon was the truth and I believe I’d even convinced myself that that was the truth at the time. 664 He explained that there had been probably over 100 conversations about what had happened at the party with various people. He was only 18 at the time and he had never been in situation like this before. Because of what he had heard about what had happened, he believed that that was the story and he must have seen it. He said:811 … Upon looking back, I guess through hindsight, maturity and a lot more reflection given the gravity of events that have happened after this incident, I believe that that isn’t the case. 665 He gave evidence that his discussions with other people about the event had then become his memory of what had happened at the time and had heavily influenced his police statement.812 666 Owen was then cross-examined, at length, about how he was now able to determine what was something he thought he had been told by others but had not observed and what he had in fact observed. It was suggested to him that the contents of his police statement were in fact a genuine recount of what he had seen, rather than what he had been told by others. He explained that as he now reflected on the event, he could not remember significant things such as Lloyd and Dunn- Lawless leaving the party. He believed he would remember those significant events if he had in fact observed them.813 He gave the following evidence:814 Q. … Correct me if I'm wrong, but you say that what you told the police, you think now is the product of things you had heard people tell you as opposed to what it is you actually saw happen. A. In - in some specific instances, that's the assumption I'd make based on the memory I have now, yes. Q. So that's an assumption you have made now when you accept you have no actual memory of those events; is that right. A. When I accept I have no memory of the events, I'm assuming if I can't remember something significant that I would think I would remember, and I've written it here 809 T 703.14. 810 T 703.6-10. 811 T 703.30-34. 812 T 704.32-33. 813 T 746.18-25. 814 T 746.31-747.21. -- 136 of 496 -- [2026] SADC 27 131 that I was taking or telling the story that had been put to me that everybody had agreed upon had happened. Q. If I suggested to you that you are tailoring your evidence to walk away from what you told the police on 11 January 2011, what do you say about that. A. I'd say that I would like to put this entire thing to rest and I think the best course of action is to just tell the truth to the best of my ability to recall it now. Q. And I suggest to you that you are, in fact, now not telling the truth. The truth is what you told the police officers, or the police officer, on the 11th - the truth of what happened as to the circumstances of your birthday and Nick being injured is what appears in your statement of 11 January 2011. A. I would say what appears in my statement doesn't line up with what my memory is now of the series of events. 667 Owen maintained that he could not now recall seeing the applicant go around the corner and Lloyd follow him as he had told the police.815 When asked if when he told that to the police, he was telling the truth, he said:816 A. That was a story that had been put to me by Nick and everybody else at the party. I think that I didn’t believe that that’s what I saw when I gave that statement to the police. Q. My question, was; was that the truth. A. As I said, I can’t recall now seeing that happen. 668 When it was suggested to Owen that it was more likely than not that he had told the police that that had occurred, because that is what had happened, he said, ‘I genuinely don’t know.’817 669 Owen maintained that he remembered seeing the applicant come around the corner, injured but he could not remember seeing anybody go around that corner before. 670 When it was suggested to him that he told the police he had seen both Lloyd and Dunn-Lawless go around the corner before the incident, as this is what he had seen, he said:818 A. As I said that was the narrative that was put to me by Nick himself, his family and our friendship group. I think that I believed that was what happened, yes, and that therefore I had seen that and put that to the police. Q. Do you agree from this statement that nowhere in there do you say 'This is what I say happened based on what I've been told'. 815 T 733.1-3. 816 T 733.7-12. 817 T 734.10. 818 T 740.26-37. -- 137 of 496 -- [2026] SADC 27 132 A. I didn't realise the seriousness of the conversation I was having with that police officer. I think I would have been a lot more careful with my words in hindsight about how I framed the way I was talking to him. 671 Owen reiterated that when he spoke to the police, he thought that his would be only one of multiple similar statements and he thought that he was having a casual conversation with a police officer. He said that he was immature and did not take the process seriously, notwithstanding the seriousness of the incident.819 672 Owen gave evidence that what he should have mentioned to the police was that this is what he thought had happened, rather than what he saw had happened.820 He had felt guilty that this incident had happened at his party and that had left him in a very influenceable state.821 673 Owen denied that he was tailoring his evidence, as he had tailored what he had told the police. He said:822 I’m trying to give the most honest recollection I can today that I have of those series of events that happened. That’s all I can do. 674 Owen was also questioned about the content of his discussions with Lloyd and Dunn-Lawless after they returned to the party. He explained that he could not now recall what they had said, other than the fact that they said they had had an altercation with the applicant.823 As to whether he was angry or they were upset during that conversation, he said:824 No. No-one knew what had happened. They'd sort of come back almost confused. I think they knew something. Obviously people were making assumptions they'd been involved because they'd run away, but they weren't angry. They seemed more concerned. 675 In his police statement, Owen had stated:825 After the police left, we resumed the party. At about 12:30 am the next morning [Lloyd] and [Dunn-Lawless] came back. I don’t remember who it was but they said they were on the street out the front of our house. Nick’s friends were pretty riled up and wanted to go out there. I told everyone to stay inside and I went out there to talk to them. I saw that they were standing on the street right in front of our driveway. I went up to them and … I said, “What happened? Where did you go?” Both said, “Sorry for ruining your party” I said, “What happened? Why’d you hit Nick?” 819 T 741.18-23; T 742.7-15. 820 T 744.5-7. 821 T 704.38-705.3. 822 T 707.6-8. 823 T 684.31-33. 824 T 685.3-7. 825 Exhibit P9 at [13]. -- 138 of 496 -- [2026] SADC 27 133 [Lloyd] said, “I was out taking a piss and CHATTAWAY and I were talking. Then out of the blue he swung a fist at me. I dodged it” [Dunn-Lawless] said, “I just ran over to help him out” 676 Owen told the police that both Lloyd and Dunn-Lawless left pretty much straight away. He told the police that they did not say anything else, they did not ask if Nick was okay, they did not apologise for hitting him, they just apologised for ruining the party.826 677 In cross-examination, Owen said that his memory of that conversation was ‘good’.827 When questioned further on that, he explained that he remembered the conversation but not the specifics of what was said.828 678 As to whether the fact that the police statement recorded specific details of what individuals had said during that conversation, meant that at the time he gave that statement he recalled those specific words being said, Owen said:829 I think I was providing a summary of the conversation. I can’t remember how the police officer posed that to me. After the party 679 Owen gave evidence that about two days after the party, the applicant’s mother called and mentioned that she and the applicant were coming over. He had also spoken with the applicant. He said:830 A. Yes, they wanted to come and look for any bottles that might have been used as a weapon. Q. Who conveyed that to you. A. Nick's mum. Q. Prior to that had you heard of the suggestion of bottles being used as weapons. A. No. 680 He described the applicant’s appearance at that time as consistent with that in the photographs.831 Owen recalled having a conversation with the applicant and his mother when they were looking for broken glass or bottles around the lemon tree. He said that the applicant could not recall how he had been hit but they were looking for a bottle that had been used as a weapon, as they had talked to the doctors who had inferred that the kind of damage that Nick had suffered could not 826 Exhibit P9 at [14]. 827 T 699.26-31. 828 T 750.8-12. 829 T 749.21-23. 830 T 677.18-24. 831 Attached to Exhibit P14. -- 139 of 496 -- [2026] SADC 27 134 have been done with fists alone.832 He remembered that his dad was there and helped search the backyard.833 681 Owen gave evidence that they did not find any bottles or broken glass thrown under a tree. They looked through the recycling bin for a champagne bottle or a longneck beer bottle, however, by that point the recycling bin had been picked up.834 However, there were some bottles in the recycling bin that Mrs Chattaway had taken with her but they did not match the description of what they were looking for.835 682 Owen explained that the story that had been solidified by the applicant and his circle of friends after the incident, was that as people had seen Dunn-Lawless drinking from a longneck beer bottle, it was assumed that it must have been used as a weapon.836 683 In cross-examination, Owen was asked why there was no mention of a weapon in his police statement, if what he had told the police was a version to fit with the narrative as to what had happened. He said:837 A. Because I didn't - I definitely didn't see a weapon that evening so I didn't mention it. I didn't see someone carrying a bloody bottle. If I had seen that I certainly would have mentioned it. Q. So you are certain that despite you thinking that you may have adopted a version of events of other people, including Nick Chattaway, you are absolutely certain that you didn't adopt his suggestion that he was hit with some sort of weapon, namely a bottle. A. At the time I was still unclear. No-one was saying for certain keep away. Q. You would agree that you say you were specifically told on that Tuesday that Nick and his mother were looking around your yard for what was used as a weapon. A. I remember Nick telling me he blacked out and he doesn't know what happened but he was told that they must have been - I don't know if it was a doctor who told him or someone else told him there was a weapon used, so that is why they were back looking for a bottle. Q. You agree as at the Tuesday afternoon you were well aware that Nick said or at least had been led to believe that he had been assaulted by use of a bottle. A. Possibly, yes. They weren't certain but at that stage there was a possibility. 832 T 677.35-678.15. 833 T 759.22-27. 834 T 678.19-20. 835 T 679.3-4. 836 T 679.10-19. 837 T 759.38-760.23. -- 140 of 496 -- [2026] SADC 27 135 684 As to how this evidence fit with his evidence that the applicant had told him he could not recall how he was hit, Owen explained:838 He didn't say 'I remember someone hitting me with a bottle'. He said 'It was put to us that this sort of damage can only be done with a bottle'. So, it wasn't I suppose in my mind if he had said directly 'I was hit with a bottle' that would be very different to speculation. Tim Allan General 685 Tim and Keryn Allan knew the third and fourth respondents and their family through their involvement in amateur theatre.839 686 They regularly attended at the Stankiewicz family home on a Sunday night for dinner.840 It was in this context that they were invited to attend Owen’s 18th birthday party, which was also on a Sunday evening.841 The party – general observations 687 Mr Allan believed they arrived at the party at about 4:30pm to 5:00pm. He recalled it being light outside, probably early sundown.842 688 When they arrived, there were probably only five or 10 young people in attendance, under the pool shelter. The party was not yet in full swing.843 689 He recalled that Tony was ‘on the grill’ and started making food for people. He spent some time with Tony, next to the barbeque, to keep him company. He also remembered transferring food to a trestle table that was set up at about F8 on the grid. 690 Mr Allan recalled there would have been about 30 to 35 people at the party, maybe 40, when Tony was on the barbeque.844 691 He recalled there being a large circular outdoor seating area under the pool shelter and some garden chairs in the vicinity of G6 on the grid. He referred specifically to a wooden bench and some plastic re-stackable chairs.845 692 He could not recall if there were any guests under the pergola.846 838 T 761.7-12. 839 T 779.18-28. 840 T 779.29-33. 841 T 780.1-17. 842 T 780.20-23. 843 T 780.33-781.2. 844 T 782.25-30. 845 T 783.15-18; T 785.11-24. 846 T 783.30-31. -- 141 of 496 -- [2026] SADC 27 136 693 Mr Allan gave evidence that there were some soft drinks in an esky with ice and a recycling bin at about F8 on the grid.847 He saw some of the young men drinking beer and the girls drinking UDLs.848 694 Mr Allan said that during the party, his wife and Ms Dansie were chatting and catching up inside. From time to time, Ms Dansie would be in the kitchen taking food out of the oven and putting it on trays and his wife would be assisting. He would then take those food trays out to the food location at F8, as would Tony if he was coming inside.849 695 Mr Allan recalled that the barbeque stopped at around dark or sunset.850 He remembered circulating with a tray of nibbles outside some time thereafter.851 He did not mingle with the guests. He did not know a lot of people there and he did not ‘want to cramp Owen’s style’.852 696 When asked as to what observations he made as to the behaviour of the guests when he was outside, walking through those guests, he said:853 A. People were having a good time. It was quite noisy and people were quite excited to be there, and it was - yeah, just had a good vibe about it. I can't really explain it any more than that, but people were having a good time. There were some people in the pool, they were having a good time. Q. Was there any sign of any of the guests being drunk. A. No. Q. Was there any sign of any of the guests being aggressive to anyone out there. A. No. Q. Was there any sign of any apparent arguments going on. A. No. 697 Some guests were using the garden chairs that had been provided, some were sitting within the entertaining area under the pool shelter and others were inside. 698 As to those who were inside, they were transiting through the kitchen to go to the toilet.854 699 When the barbeque stopped and when he was not outside, he spent his time in the living/kitchen area. While there, he would sometimes chat to guests as they 847 T 783.36-784.14. 848 T 784.23-25. 849 T 785.30-786.4. 850 T 786.20-22. 851 T 784.32-33. 852 T 787.2-4. 853 T 787.13-25. 854 T 790.29-38; T 791.2-5. -- 142 of 496 -- [2026] SADC 27 137 went through to the toilet. During conversations with those guests when they came inside, he had not heard anything to suggest there was any behaviour of concern.855 700 He did not observe anyone to be vomiting, either then or at any time, during the party.856 701 Mr Allan gave evidence that he and Tony would go outside at different times to clear away bottles and cans. He said he did this about once every half an hour or three quarters of an hour.857 He put the beer bottles and cans that he found in a recycling box that Tony had provided. 702 Mr Allan was asked if at any time he had observed any of the guests apparently inebriated. He said he thought that most of the young people were slightly inebriated and he knew that because of their extra boisterousness.858 703 Mr Allan said that he had probably had a glass or two of wine during the evening but no more than that because he was driving. He said that Tony, Megan and his wife would have drunk a similar amount.859 The incident 704 Mr Allan was at the party at the time of the incident but did not witness it. He remembered being inside, sitting on a couch when a young lady came inside and said someone had been hit and that there was a lot of blood.860 705 He got up and went outside where he saw the applicant leaning back, sitting in a chair in the area at about G6. There was a lot of blood coming from his nose and he was gurgling as the blood was going down the back of his throat.861 706 Mr Allan gave evidence that he had some basic first aid training and he administered first aid by asking the applicant to lean forward so that he did not choke on his blood. He remembered asking someone to go inside to get some peas for the back of his neck to try and slow the blood flow and to get a towel. Someone went and did these things.862 707 Mr Allan said that he talked to the applicant. When asked if the applicant was speaking, he said that he was quite incoherent at that stage and was groaning. He had not responded verbally when he had spoken to him about his nose but he 855 T 792.33-793.1. 856 T 791.24-29. 857 T 792.10-11. 858 T 792.27-31. 859 T 793.11-24. 860 T 794.2-7. 861 T 794.9-13. 862 T 794.16-33. -- 143 of 496 -- [2026] SADC 27 138 responded physically, by leaning and moving forward. He seemed to be responsive to what he was asking him to do.863 708 He remembered the applicant wanting to lean back. He said:864 He was obviously in a lot of pain and I didn’t want him to lean back because that would mean him choking on blood again so I made sure he sat forward with the cold compress on the back of his neck. He was groaning and obviously in pain. 709 He described other young people coming over to see what was going on and the fact that they had become quite upset. He asked them to move away. 710 Mr Allan could not recall any discussion about an ambulance but he did recall seeing the applicant’s mother. He said she came over to where they were and at that point in time, he excused himself from the situation. 711 He then stayed at the party for about 20 minutes but was inside during that time. He left the party through the front door, at which time he did not recall there being any ambulance or anything out in the street.865 Keryn Allan The party – general observations 712 Mrs Allan is a teacher. She gave evidence that it was daylight when she arrived at the party.866 She went into the kitchen and lounge area of the home and greeted Megan, Tony and Owen. She then stayed around that area.867 713 Mrs Allan recalled Tony cooking a barbeque and that there were nibbles.868 She could not recall if she drank alcohol during the evening but said that if she did, she would probably have had one or two glasses of white wine as she was a moderate drinker.869 714 From her position inside the house, she could see the guests outside through the windows and doors and when they came inside to use the bathroom. She did not notice any guest vomiting, nor did she notice any aggressive or abusive behaviour by anyone.870 715 Mrs Allan was asked whether she noticed anyone who appeared to be drunk. She said: 871 863 T 795.6-19. 864 T 795.27-31. 865 T 795.32-796.31. 866 T 802.7-10. 867 T 802.22-24. 868 T 803.10-11. 869 T 803.3-7. 870 T 803.12-22. 871 T 803.26-27. -- 144 of 496 -- [2026] SADC 27 139 Not excessively. They definitely had some – there was drinking, there was alcohol, but not excessively. The incident 716 Mrs Allan did not witness the incident. She was inside when someone came inside and said something about a blood nose.872 She stayed inside because there were a lot of other people, including her husband, attending at the scene already.873 717 She believed an ambulance came and she vaguely recalled the applicant’s mother also being there but did not speak to her.874 Eleanor Stankiewicz General 718 Eleanor Stankiewicz (Eleanor) is the oldest daughter of the third and fourth respondents. She gave evidence and her signed statement was tendered.875 719 Eleanor did not live at the house at the time of the party and had moved out when Owen was 15. In her statement, she described the layout of the premises as being consistent with what can be seen in the photographs (Exhibit P2) and the floorplan (Exhibit P3). As to the trees which can be seen in photograph 17, she explained that the tree in the bottom left-hand corner was an orange tree, then there was a lemon tree and the tree against the back of the fence was an apricot tree. 876 720 Eleanor described permanent lights in the roof of the pergola and pool retreat. The pool also had lights. She could not recall there being any lights on the back grassed area.877 She could not remember a party where the backyard was too dark. The lights would be on in the kitchen, living and dining areas, all of which looked out onto the backyard. Although it was certainly dark at the back of the yard, it was not so dark that you could not see people.878 The party – general observations 721 Eleanor attended the party with her then boyfriend, now husband, Marcel Blanch-De Wilt. She was 18 at the time and Marcel was 22. They only stayed at the party for about an hour and had left before the incident. 722 Eleanor now has only a very limited recollection of what occurred at the party, given it was so long ago and because there were other parties that had also been held at her parents’ home around that time. 872 T 803.28-804.4. 873 T 805.1-6. 874 T 805.25-28. 875 Exhibit R36. 876 Exhibit R36 at [4]-[10.1]. 877 Ibid at [11]. 878 Ibid at [25]-[26]. -- 145 of 496 -- [2026] SADC 27 140 723 Eleanor could not recall talking to anyone at the party other than Marcel, her parents, Tim and Keryn Allan and probably Owen. She was asked whether she had any recollection of hearing or seeing any person vomiting in any of the toilets or inside the house. She said, ‘absolutely not’ and that this would have been very unusual behaviour.879 Parties at the premises – general practice 724 Eleanor gave evidence about the usual things that would occur when the family held a party at the premises. 725 She explained that generally speaking, parties at the home occurred in the backyard. In addition to there being furniture under the pool shelter, her father would pull out wooden trestle tables. She remembered an occasion when he put one of those tables on the back grassed area, near the back fence. She could not remember if there as an umbrella over that table.880 726 Her father would sometimes bring out benches, picnic tables and/or some folding director style chairs, that he would scatter throughout the backyard.881 727 During summer, her father would usually cook a barbeque and there would be other party nibbles such as platters with dips and party food. Her mother and father would provide non-alcoholic drinks such as water and soft drinks. She could not recall them providing alcoholic drinks for guests.882 728 At any parties or gatherings, her parents would always come and say an initial hello to guests and would ‘actively’ come into the backyard, picking up empties and adding snacks. In her statement she said:883 28.1 Especially Dad, he would always be floating around to keep an eye on things. So much so that it was frustrating sometimes when I had friends over that, he would always be checking in. 729 When inside, her parents would have been able to see into the backyard through the windows in the living room and kitchen. She said that you could see almost the entire backyard from the kitchen window, except a grassed area near the orange tree, on the wall of the master bedroom, where there was a clothesline.884 730 Eleanor stated that when they were holding a party or gathering, her parents would invite some adult friends, so they had some adult conversation and to assist to keep an eye on things. At such gatherings, her mother may have had a few drinks but not her father. She stated that his practice was not to drink much at those sorts 879 T 663.27-34. 880 Exhibit R36 at [27]. 881 Ibid at [27.2]. 882 Ibid at [35]-[39]. 883 Ibid at [28.1]. 884 Ibid at [31]-[32]. -- 146 of 496 -- [2026] SADC 27 141 of functions. She thought this was so that he would still be able to drive if anyone needed to be picked up or dropped off anywhere. She stated:885 Mum and Dad definitely would not have been drunk at any gathering I had. Marcel Blanch-De Wilt General 731 Marcel Blanch-De Wilt (Marcel) did not give evidence but his signed statement was tendered.886 732 Marcel described attending various parties and social gatherings at the premises including Christmas, a Tiki party and a cast party for their theatre friends in 2010. At such gatherings, he recalled entering the house via the driveway through a back gate which was a pool fence style gate where to open it, you had to reach over the top. 733 Attached to Marcel’s statement is a photograph taken at a Tiki party which gives some idea as to the lighting under the pool shelter and also immediately adjacent to the house under the pergola, during that particular party. In that photograph, there is a sign which says, ‘No glass inside pool fence Thank you’.887 Marcel remembered the backyard and the house being relatively well lit during that party.888 734 Marcel described every event he attended at the house as being a tame and well managed affair.889 Party food would be provided. He could not recall Owen’s parents ever providing them with alcohol. He described Mr Stankiewicz as being ‘regimented and a logical thinker’ and said that both Megan and Tony were diligent in their supervision at parties.890 He said they ‘were not relaxed entertainers that would have left everything to us’.891 The party – general observations 735 Marcel had only a very vague recollection of attending the party. He believes he and Eleanor only stopped by briefly as a favour before going on to their own social engagement thereafter.892 736 He recalled arriving when the sun was still out. There were only about 15 to 20 people at the party when he was there, possibly because it was early. He said 885 Ibid at [34]. 886 Exhibit R38. 887 Ibid at p 6. 888 Ibid at [12]-[13]. 889 Ibid at [23]. 890 Ibid at [16] and [21]. 891 Ibid at [19]. 892 Ibid at [24]-[26]. -- 147 of 496 -- [2026] SADC 27 142 the party appeared quite tame and as a result, he was surprised to hear about these legal proceedings and that something had happened later in the night.893 737 He had some recollection of being in the kitchen/living room, hanging out with some other adults at the party. He said:894 31. Although I cannot remember directly, knowing Megan and Tony, they would have been diligent for a party like this, inviting adults to assist with supervision. I would describe them as strict, and they would have planned out the evening like an operation, with a strict guest cap to avoid it getting out of control. 738 He could not recall what food was provided at the party but said that Tony’s practice was to prepare a barbeque. He did not think beer or other alcohol was provided to guests by Tony and Megan. The Applicant’s physical injuries Applicant’s evidence 739 The applicant gave brief evidence about the physical injuries he suffered in the incident and the treatment he received thereafter. He said:895 A. Shattered cheekbones, cracked eye sockets, shattered nose and a crack, a fracture to my frontal lobe, to my skull which had to be removed. Q. You had treatment for those injuries. A. I had an operation to rebuild my face ... I had treatment for it. Q. How many surgeries did you have. A. Just the one but I believe it was over eight hours. It was an eight hour surgery. Q. Did you have to have any follow-up treatment for those surgeries, or surgery rather. A. Sorry, James, what did you say? Q. So you said that you had surgery. Did you have to have follow-up treatment with the doctor following that surgery. A. Inspections. So I had my eye inspected, which was damaged. I'd lost in my left eye, I lost vision, I lost part of the visual cortex was - I think, I had a hand injury because of the back of my hand. I'm not sure but I did have a head injury associated with the sight. So basically the damage, my ability to see things in my left eye. So I'm partially blind. Q. How long did it take you to recover from the surgery that you had in relation to your head injuries. 893 Ibid at [29]. 894 Ibid at [31]. 895 T 1270.23-1271.24. -- 148 of 496 -- [2026] SADC 27 143 A. It's an ongoing process. Q. Can you explain what you mean by that. A. Well because of the physical and emotional injuries, I don't know when I'll recover from ... Q. Are there any other - you've mentioned issues with your eyesight and you've also said that your recovery is still ongoing to this day, is that right. A. Yes. Q. What are some of the things that you think you're still recovering from now. A. Moreso the mental stress. The diagnoses from the doctors, having treatments, psychology sessions. Doing therapy, doing - there are therapies I could be doing when I get out that revolve around eye - learning how to retrain my brain to open up those areas where my eye's been damaged. 740 Photographs taken of the applicant by Senior Constable Lambert at the Sturt Police Station on 7 December 2010, depict the applicant with two black eyes and some dried blood inside his right nostril.896 741 Due to the injuries he suffered in the incident, the applicant was unable to travel to New Zealand to be part of a trip with the Exploration Society, scheduled to depart in mid-December 2010. He said he had been designated the trip captain and had undertaken much of the planning for that trip.897 Ambulance records 742 The applicant was conveyed by SA Ambulance from the party to the RAH. 743 The SA Ambulance Patient Report Form states that an ambulance was despatched at 22:58 (10:58pm), being the same time the request for same was received. An ambulance arrived at the scene at 23:05 (11:05pm) and departed the scene at 23:15 (11:15pm).898 744 The history of the presenting complaint as recorded on that form is, ‘Hit in face with bottle’. 745 On examination, the applicant was noted to be alert and orientated. He had swelling and deformity to his nose, contusions/swelling to his right orbit and blurred vision in his right eye. He was noted to have vomited a large quantity and had bleeding into the mouth. The haemorrhage was reduced but ongoing. 896 Exhibit P14 (see also photographs in Exhibit R42 at p 946-952. Although there was no evidence as to when these photographs were taken, it is likely they were taken at the same time as the photographs attached to Exhibit P14). 897 T 1231.33-1232.12. 898 Exhibit P12. -- 149 of 496 -- [2026] SADC 27 144 746 Ambulance personnel recorded, ‘Consumed 6+ beers tonight’. 747 There is no reference in the Ambulance Report to the applicant having suffered any injuries to his arms (for example, when fending off multiple hits by a bottle) or the back of his head (from being hit over the back of the head, either with a bottle or otherwise). RAH – Emergency Department records 748 The ambulance arrived at the RAH Emergency Department at 11:27pm on 5 December 2010.899 749 An Emergency Nurse compiled handwritten nursing notes at 11:35pm on 5 December 2010. Those notes record that a breath test had been undertaken producing a reading of 0.129%. The applicant’s GCS was 14/15. The notes include a history:900 AA – tonight by champagne bottle, punched in face… 750 Relevantly, the applicant was noted to be confused insofar as he did not know what year it was.901 751 In typed notes completed by E Florendo – RMO in the RAH Emergency Department, at 1:00am on 6 December 2010, the history is recorded as follows:902 Had EtOH last night Allegedly assaulted by unknown assailants at 2300 hrs -punched over the face and hit with a bottle over the nose -? LOC - had nosebleeding 752 At that time, his GCS was 13/15. 753 A CT Head and CT Face/Sinuses was undertaken at 4:19am on 6 December 2010, during which the applicant tried to sit up to vomit. A radiology report prepared thereafter included the following Clinical Observations:903 17 year old male. Blood alcohol level 0.129. Punched and hit with bottle over face. Nose bleeding in peri orbital haematoma. GCS 13. 899 Exhibit P12. 900 Exhibit R42 at p 278. 901 Ibid. 902 Exhibit R33 at p 1. 903 Exhibit P13 at p 6. -- 150 of 496 -- [2026] SADC 27 145 754 The radiology report confirmed the applicant had sustained a naso-ethmoidal complex fracture, with fractures recorded as follows: There are fractures of the nasal bones bilaterally. There is an associated fracture of the nasal septum with deviation to the left. There is a small fracture of the right orbital floor with approximately 2 mm of depression. There is fracture of the superomedial aspect of the right orbit extending to involve the lamina papyracea on the right, and fracture of the inferior aspect of the right frontal sinus. There is a fracture of the left lamina papyracea, again with a tiny fracture line extending superiorly to the inferomedial aspect of the left frontal sinus … 755 Importantly, no acute intra cranial abnormality was seen. RAH – admission records 756 The applicant was admitted to the RAH from the Emergency Department at 9:28am on 6 December 2010.904 757 The applicant was seen by Dr Ben Grave at 1:00pm that day, at which time his GCS had increased to 15/15. He was alert and orientated. Dr Graves recorded a history as follows:905 … post alleged assault Last evening 2300 unknown Heavy alcohol use Punched over face/bottle used ? LOC Nose - bleeding 758 On 7 December 2010 a nursing note recorded that the applicant was receiving paracetamol for pain and reported suffering double vision. That note included the following history:906 Assault on Sun night with bottle. Multiple times … 759 There is no reference in the RAH notes to the applicant having suffered any injuries to his arms or the back of his head, or any physical injuries other than the facial injuries.907 904 Exhibit R42 at p 275. 905 Exhibit R33 at p 3. 906 Exhibit P23. 907 See R42 at p 286, Progress Note 6/12/10 at 2230 - ‘… Does not describe any other injuries …’ -- 151 of 496 -- [2026] SADC 27 146 760 The applicant was discharged from the RAH to home on 7 December 2010 at about 1:15pm, at which time his vital signs were stable. He was given Panadol for headache and Cephalexin. He was referred for ongoing treatment at the Craniofacial Unit and Eye Clinic. Assessment at RAH Eye Clinic 761 The applicant was seen at the RAH Eye Clinic on 7 December 2010 at which time he was complaining of numbness of the right face and gum area, but no double vision and no visual disturbance. Examination showed some restriction of up gaze on the right and considerable bruising over the right cheek and eyelids, but no intraocular pathology was noted.908 762 The applicant was reviewed in the Eye Department on 19 January 2011, at which time his visual acuity was noted to be ‘still 6/5 in each eye (ie better than normal)’. He was complaining of double vision on extreme upgaze and slight restriction of up gaze in the right eye, but the rest of the examination was said to be unremarkable.909 763 Dr Crompton also saw the applicant on 18 January 2012 – that is, after his return from China910 – at which time he was still reporting double vision on upgaze but said this was not causing too many problems. He continued to have slight restriction of upgaze on the right but no longer had any numbness of his right cheek or upper gums. He did report a loss of the sense of smell. 764 Dr Crompton expressed the opinion that the applicant’s orbital fractures had impeded his ability to look up, with consequent double vision imposing about a 15% visual disability in one eye, being a permanent impairment. He did not recommend any surgery for this condition.911 765 Dr Crompton did not express any opinion as to the likely mechanism of the applicant’s injuries, beyond outlining the history the applicant was recorded as giving at RAH Emergency on 6 December 2010, that is, that he had been punched in the face and hit with a bottle over the nose.912 Surgery with Prof David – 13 December 2010 766 The applicant was first seen by Prof David on Wednesday 8 December 2010. Prof David subsequently performed surgery on Monday 13 December 2010 which involved bone grafting of the applicant’s orbital floor on the right side and reduction of the fracture of the left nasal bone on the left side.913 908 Exhibit P16 at p 1. 909 Exhibit P16 at p 1. 910 See discussion below. 911 Exhibit P16 at p 2. 912 Exhibit P16 at p 1. 913 Exhibit R20 at p 2. -- 152 of 496 -- [2026] SADC 27 147 767 Mrs Chattaway gave evidence that this surgery was undertaken on the day it had been intended for the applicant to travel to New Zealand with the Exploration Society.914 768 Prof David saw the applicant for follow up on Friday 17 December 2010, at which time the splints were removed from his nose. The applicant was noted to be anxious about the numbness to the nose tip and the swelling. Upon further review on 16 February 2011, the applicant’s left nasal bone was a little distorted and the right airway was better. The feeling was coming back into his face and there was no significant diplopia.915 769 Prof David described the applicant as having made a good recovery albeit he had some minor long-term distortion of the nasal pyramid. He intended to review him in about six months.916 Independent evidence – bottles and/or fists? Prof David 770 As stated, Prof David was the applicant’s treating Craniomaxillofacial Surgeon. He was not called to give evidence. 771 The exhibits include two letters sent by Prof David to Mr Pipinias, both dated 12 April 2011 and a signed statement of Prof David dated 27 February 2012.917 772 These documents were tendered by the third and fourth respondents.918 773 In his (first) letter to Mr Pipinias, Prof David stated: 919 He was hit in the face with a champagne bottle and he claimed that he did not know the assailants. He was at a party, they were not invited, he tried to get them to leave on behalf of the hostess. He then went to pass urine behind a bush and one of these people hit him with a bottle, he hit back but lost consciousness temporarily. He remembers being hit again with a big beer bottle but cannot remember anything else. 774 I am satisfied that what Prof David was recounting in this paragraph was the history as provided to him by the applicant. This is apparent not only having regard to the specific words used and the details recorded by Prof David, but by what he said, in almost identical terms in his second report of the same date, which he prefaced with the words, ‘He gave a history …’920 775 The applicant recalled being treated by Prof David after the incident. He denied telling Prof David that he had been hit in the face twice, once with a 914 T 89.7-10. 915 Exhibit R21 at p 2. 916 Ibid. 917 Exhibits R20, R21 and R22. 918 See discussion above. 919 Exhibit R20 at p 1. 920 Exhibit R21 at p 1. -- 153 of 496 -- [2026] SADC 27 148 champagne bottle.921 He gave the following evidence as to what he had told Prof David about how he sustained his injuries:922 I told him I was hit with a champagne bottle in Jack Lloyd's right hand and that Patrick Dunn-Lawless hit me with a longneck beer bottle with his left hand. 776 Prof David viewed the CT scan undertaken at the RAH which confirmed the applicant’s facial fractures. In his first report, he stated:923 I made a note at that time that it looked as though he was hit twice, once from the right side and once from the left side. 777 In his first letter, Prof David stated:924 With respect to comments about the shape of the bottle with which Nicholas was hit, it is consistent with being hit by a champagne or beer bottle on the right and left side of his face. His injuries are consistent with a right handed person hitting him from the front and hitting the left side of his face producing the fracture pattern that was produced and for another blow by either a right or left handed person hitting him when standing to his right and hitting the left side of his face. The danger of such a blow could have been very much more serious had it hit his skull rather than his face. 778 In his second letter, Prof David stated that the injuries were the result of at least two separate blows and were consistent with the applicant’s description.925 779 Prof David’s statement was prepared by the solicitors retained by the second respondent to defend his aggravated assault charge and was prepared following a conference held between Prof David and those solicitors and counsel, on 27 February 2012. 780 In his statement, Prof David reiterated his earlier opinion that the injuries were caused by at least two blows. He stated that they could not have been caused by only one blow. They could have been caused by two blows – one to the left side of his face and one to the right.926 781 Importantly, Prof David stated:927 5. The injuries are consistent with the application of significant blunt trauma to this young man’s face. The final paragraph of my letter to the police begins with the sentence “It is my opinion that this young man’s injuries are consistent with his description”. It would be wrong to read that letter as saying it is my opinion that this young man was hit with a bottle. The letter conveys no more than what it says, namely, that the injuries are 921 T 277.20-34. 922 T 277.24-26. 923 Exhibit R20 at p 1. 924 Exhibit R20 at p 2. 925 Exhibit R21 at p 2. 926 Exhibit R22 at [4]. 927 Ibid at [5]-[6]. -- 154 of 496 -- [2026] SADC 27 149 consistent with the account given to me by the young man that he was hit twice in the face with a bottle, once with a champagne bottle and then again with a beer bottle. 6. I cannot say if he was hit with a bottle. The injuries are equally consistent with the application of significant blunt trauma by clenched fists. I have been asked to consider the question “Is it a reasonable possibility that this young man’s injuries have been caused by two punches with clenched fists?” The answer to that question is “Clearly, yes.” 782 He stated that if the applicant had been hit in the face with a bottle, with reasonable force, approximately a dozen times, he would have expected the applicant to have suffered much more severe facial injuries than those he suffered. He stated:928 … Indeed, even if he had been hit no more than four or five times about the face with a bottle I would expect him to have suffered significantly more severe injuries. Obviously, the greater number of blows to his face with a bottle, the greater the damage likely to be caused to his facial bones and soft tissue. 783 Mrs Chattaway was asked about her recollection of a meeting she had with Prof David, shortly prior to the trial of the criminal proceedings against Lloyd and Dunn-Lawless, in or about March 2012. She described Prof David as demonstrating an action as to how the applicant’s injuries were caused. She said that Prof David demonstrated two blows; one from each side, in an ‘x’ shape. She said, ‘(h)e was very definitely showing that he was holding a bottle, an imaginary bottle’.929 She recalled Prof David saying, ‘(y)ou were hit like this and like that’.930 784 In cross-examination, Mrs Chattaway agreed that this conversation occurred on 24 February 2012.931 She agreed that Prof David had been provided with a history, either via the applicant or someone on his behalf, that he had been hit with a champagne bottle and a beer bottle.932 However, she disagreed that what Prof David was demonstrating to her, was what he understood to be the mechanism of the injury, based on the history he had received. She said:933 I don’t think so. I think it was based on the injuries that Professor David had operated on. It was based on the operation that he had carried out on Nicholas. A/Prof Pennington 785 A/Prof Pennington is a Plastic and Reconstructive Surgeon. He has a particular interest in reconstructive breast surgery but also has over 35 years’ experience in the treatment of facial fractures. 786 A/Prof Pennington was retained by the applicant’s solicitors to provide a medico-legal opinion as to the likely cause of the applicant’s facial injuries and 928 Ibid at [7]. 929 T 89.28-90.36. 930 T 91.3. 931 T 104.25-29. 932 T 105.17-21. 933 T 105.25-27. -- 155 of 496 -- [2026] SADC 27 150 specifically the likelihood of the injuries having been caused by the use of a bottle or bottles, rather than fists. He gave evidence and his report dated 20 November 2022 was tendered.934 787 A/Prof Pennington did not examine the applicant. Rather, his opinion was based on his assessment of various materials, including the letters and statement of Prof David, the report of Dr Crompton and the RAH records pertaining to the applicant’s treatment there immediately after the incident. A/Prof Pennington also relied upon material which was not in evidence, including copies of various emails from SAPOL and the applicant’s police statement.935 He did not recall seeing any photographs of the applicant’s injuries.936 788 A/Prof Pennington described the naso-ethmoidal fracture sustained by the applicant as a ‘localised injury’, which is an injury ‘most commonly encountered’ when the face (nose or orbits) is struck by a solid object. He explained this was ‘most commonly’ due to a low speed impact, such as the face colliding with the steering wheel in a motor vehicle accident. He said:937 It is also seen as a result of an assault, caused by being struck on the bridge of the nose by a solid object. 789 In cross-examination, A/Prof Pennington agreed that his opinion was premised on him having seen similar injuries caused more frequently by blunt trauma from a hard object, than in other ways.938 790 A/Prof Pennington expressed the opinion that although it was possible the applicant’s injuries were caused by a punch or punches, he considered this unlikely on the balance of probabilities, as in his opinion, the assailant would have had to have been a trained boxer or karate expert to cause such an injury using fists alone.939 When asked in cross-examination, if he agreed it was possible that the injuries were caused by a fist, he said:940 It's a possibility, it would have to be a very severe, quite possibly a well trained fist. 791 He acknowledged that in some circumstances the injury may be caused by a forceful punch.941 934 Exhibit P17. 935 Ibid at p 2. 936 T 61.2. 937 Exhibit P17 at p 3. 938 T 61.3-32. 939 Exhibit P17 at pp 3-4. 940 T 57.12-13. 941 T 61.33-36. -- 156 of 496 -- [2026] SADC 27 151 792 He also agreed in cross-examination that the lamina papyracea were thin bones that could be fractured if there was a blow to the eye socket, for example by a ball, or a fist.942 793 He considered it more likely the injuries to the right side of the applicant’s face were caused by the applicant being struck in the nose with a hard object, most likely a full or half full bottle, in a ‘round arm swing’ by someone who was left handed. He considered the injuries to the left side of the applicant’s face were likely due to a bottle being swung by a right handed person – being consistent with the fact that two assailants were alleged to be involved.943 794 A/Prof Pennington therefore disagreed with Prof David’s conclusion that the injuries were equally consistent with having been caused by blunt trauma applied by clenched fists. 795 In cross-examination, A/Prof Pennington confirmed than in expressing his opinion as to the likely cause of the applicant’s injury, he had assumed the assailant was observed holding a bottle of champagne immediately after the assault.944 796 Further, when asked if, in expressing this opinion, he had assumed that the applicant’s claim, namely that he had been struck by a bottle or bottles, was factually true, A/Prof Pennington said:945 Not necessarily but I would simply say this: the person who was injured in my mind had no reason to lie about it, whereas the assailant might. 797 He acknowledged that he had not had the benefit of examining the applicant, or of taking a history from the applicant or of observing the nature of the injuries sustained during surgery, being advantages available to Prof David.946 798 In addition, A/Prof Pennington suggested that if, as the applicant claimed, he had used his arms to attempt to protect himself from the blows, this would have reduced the degree of force to the face from the blows. As such, he doubted Prof David’s opinion that he would have expected more severe injuries if the applicant had been struck by a bottle even as few as four or five times.947 799 He was asked in cross-examination what type of damage he would expect to see if four or five ‘blows’ had landed around the applicant’s nose and eyes. He said:948 If they'd all landed on the nose and the eyes, then depending on what object was being used and the force thereof, they would produce a relatively severe injury. Interestingly the most 942 T 63.8-31. 943 Exhibit P17 at pp 3-4. 944 T 58.7-13. 945 T 58.4-6. 946 T 59.21-60.6. 947 Exhibit P17 at p 4. 948 T 62.33-63.7. -- 157 of 496 -- [2026] SADC 27 152 likely blow to cause the fractures that he sustained would have been the first blow. Subsequent blows may increase the displacement of that fracture, because - could I explain? The face is designed a little bit like the crumple area of a car, in other words it protects the, largely protects the brain from severe injury to the face or the head by a controlled crumple mechanism. So, if you're hit once and you fracture those bones, if you're hit again they just get displaced more. Alcohol – Prof White 800 Prof Jason White was retained by the third and fourth respondents to provide an expert opinion estimating the applicant’s likely blood alcohol concentration at the time of the incident and its impact on his behaviour, cognitive functioning and memory of the party/incident. 801 Prof White gave evidence and his report dated 7 October 2022 was tendered.949 802 Prof White estimated the applicant’s blood alcohol concentration at the time of the incident at 0.145%, with a possible range from 0.140% to 0.151%. In expressing this opinion, Prof White made the following assumptions:950 • The incident occurred at 10:30pm on 5 December 2010; • At that time, the applicant weighed approximately 90 kg and was 188 cm tall; • The applicant last consumed a substantial meal at about 6:00pm that evening; • The applicant was drinking beer between 6:00pm and about 10:30pm; • The applicant did not consume any food or alcohol between the time of the incident and the time of the breath test; • The applicant’s breath test administered at the RAH at 11:35pm on 5 December 2010 was 0.129%;951 • The applicant vomited between the time of the incident and the time of the breath test meaning post-incident alcohol absorption was negligible; and • The average rate of elimination of alcohol from a person’s body is 0.015% per hour. 803 The estimate of 0.145% equated to the consumption of approximately 13.6 standard drinks by the applicant between 6:00pm and 10:30pm, being an 949 Exhibit R35. 950 Exhibit R35 at pp 1-3. 951 Exhibit R42 at p 278. -- 158 of 496 -- [2026] SADC 27 153 average rate of consumption of 2.4 standard drinks per hour, said to be ‘a very common rate of alcohol consumption.’952 804 Prof White assumed that as the applicant was 17 years old, he would not have had the level of alcohol tolerance of an older, more experienced drinker. He assumed the applicant had a degree of alcohol tolerance consistent with some experience of drinking, including drinking to a level of alcohol concentration of 0.145%. He relied on this additional assumption when considering the likely impact of alcohol on the applicant’s behaviour, intellectual faculties and immediate and later recall of the events. 953 805 Prof White expressed the opinion that due to his consumption of alcohol, the applicant would have had difficulty maintaining concentration and attention, with some impairment of his ability to clearly perceive his environment. This could have resulted in the applicant failing to perceive objects or events around him that might have been obvious to a sober person. In addition, the applicant’s cognitive functioning would have been impaired, with the most pronounced effects being on reasoning, planning, organising, judgement and decision making. He said:954 Thus, [the applicant’s] ability to reason in the normal manner and to understand what was happening around him, to make appropriate judgments and decisions and to plan and execute appropriate actions would have been impaired. These impairment (sic) are likely to have resulted in errors of both judgement and decision-making. 806 Alcohol may have also caused the applicant to engage in impulsive or risky behaviour (ie disinhibition). 807 As to whether alcohol consumption may have impaired the applicant’s memory of events, Prof White noted that where a person has some memory for events at the time when they were intoxicated, the level of impairment can vary. If the effect on memory is not too pronounced, a person may recall additional details of events when given some information as to what happened. Importantly he stated:955 The available evidence suggests that alcohol intoxication does not result in false memories; that is, it does not result in recall of events that did not occur while the person was intoxicated. 808 Prof White considered it unlikely the applicant experienced a ‘blackout’ or complete absence of memory of the party. However, he considered it likely the applicant would not be able to recall the events that occurred around the time of the incident with the same level of detail expected if he was sober. His memory 952 Exhibit R35 at p 2. 953 Noting that if the applicant had no such experience, the degree of impairment would be more pronounced than as expressed by him. 954 Exhibit R35 at p 3. 955 Ibid at p 4. -- 159 of 496 -- [2026] SADC 27 154 for events earlier in the evening was likely to be better, as at that time his blood alcohol concentration would have been lower.956 Police Investigation of incident Police attendance at the party 809 A request for police attendance at the party was initiated at 11:00pm on 5 December 2010, following the triple zero call made by Ms Dansie.957 Police were dispatched to the address at 11:03pm and arrived at 11:12pm. The male victim was already leaving with ambulance personnel upon police arrival. He was noted to have blood coming from a suspected broken nose. 810 Police were unable to speak to the victim but spoke to unidentified ‘witnesses who are all known to the victim’. An entry in the Police Incident Report at 23:22:02 records: Appears bit of a misunderstanding between all parties, play fight gone haywire. Police report made by applicant 811 The applicant reported the incident to the Sturt Police Station on 7 December 2010 at 4:10pm. The police incident report generated at that time records the following narrative: 958 Victim states was at a friends joint 18th birthday party, when he helped by asking an uninvited guest “jack LLOYD” to leave the party and LLOYD hit victim in the face with a champagne bottle causing victim to fall to the ground, victim got and was hit two more times with the bottle, then a second male who was with LLOYD, his name is “Patrick DUNN-LAWLESS”, hit victim in the face about 4 times with a beer bottle. Victim was hit in the face a few more times by LLOYD. LLOYD and DUNN-LAWLESS ran away from the party … 812 The applicant reported that he had consumed alcohol prior to the incident and that at the time of the incident was moderately affected by alcohol. 813 Lloyd was listed on the report as being a suspect, with a weight of 70 kg and a height of 170 cm. Dunn-Lawless was listed as a suspect with a weight of 90 kg and a height of 194 cm. Investigating officer – Nick Pipinias 814 Mr Pipinias was appointed the investigating officer for the assault alleged by the applicant. Mr Pipinias gave evidence and his statement taken on 5 April 2023 but signed on 14 June 2023, was tendered.959 956 Ibid at p 4. 957 Exhibit P11. 958 Exhibit P10. 959 Exhibit P48. -- 160 of 496 -- [2026] SADC 27 155 815 Mr Pipinias obtained various witness statements, including Owen’s police statement.960 816 Mr Pipinias had a memory of obtaining Owen’s statement but no longer had an independent recollection of the events that occurred during the taking of that statement.961 He assumed that at the time he took Owen’s statement, he had already obtained a statement from the applicant, although he could not be certain of that. He agreed that he would have had some information about what had occurred at the party and would have given Owen some information about the allegations when he spoke with him.962 817 In his statement, Mr Pipinias outlined his usual practice, at the relevant time, when taking witness statements. There was nothing to make him think that he would have departed from that practice when taking Owen’s statement. His practice included emphasising the importance of telling the whole truth and that the statement was to be written using the witness’s words as to what he had observed and was not to be influenced by what he had been told or heard from others. It included explaining the statement was being taken for the purpose of a criminal investigation and could result in the witness being required to attend court and give evidence. He would emphasise the seriousness of the matter to encourage the witness to be truthful.963 818 The witness would be given the opportunity to correct errors and to add or delete information, both during the process and after the statement was typed up on the screen. He would be careful to use words which the witness wanted to use rather than his interpretation of what was said. 819 Mr Pipinias’ practice also included providing a printed copy of the statement to the witness to read, informing them that if they provided false information this was a criminal offence and then requiring the witness to either swear or affirm the affidavit.964 820 He was confident he had said to Owen the words, ‘Do you swear that this here, your affidavit, is a true and correct record of the evidence you would be prepared to give in court?’965 Outcome of investigation 821 Mr Pipinias did not give evidence as to the outcome of the police investigation into the alleged assault. 960 Exhibit P9. 961 T 1161.14-17. 962 T 1161.22-25; T 1162.6-12. 963 Exhibit P48 at [6]-[8]. 964 Ibid at [9]-[12]. 965 Ibid at [15]. -- 161 of 496 -- [2026] SADC 27 156 822 As previously stated, Dunn-Lawless agreed with a proposition put to him in cross-examination that he was charged with the offence of Aggravated Assault following the incident, with the circumstance of aggravation being that it was alleged he had used an offensive weapon during the assault. There was no dispute that the police did not ultimately proceed with this charge, nor any other charge arising out of the incident against either Dunn-Lawless or Lloyd. Post incident – December 2010 to February 2011 Applicant’s evidence 823 The applicant gave evidence that after finishing Year 12, his plan had been to get a degree in Construction Management and then make a career, working with his brothers in the same industry.966 He had not worked while he was at school, but had intended to undertake some type of employment while studying at university.967 824 He gave evidence that he had been offered several different places at university and had accepted a place offered by UniSA. When asked if it was his intention, prior to the incident, to take up that position at University, he said:968 A. Yes. Maybe not, because I think I was planning to go to - don't quote me. Q. So was it prior to your injuries your plan to go to university in 2011. A. Yes. Q. And you mentioned that you went to China. Can you tell us why it was your plans changed. A. It was less stressful, like, I thought it was less stressful. It gave me a divergent from the path of what I could have been doing. It's original. 825 When the applicant was asked why he had changed his plans, he said:969 I think I wanted to break away from, like, you know, living in Adelaide. I wanted to go somewhere that was different. I wanted to do things that was going to like, you know, challenge me. 826 The applicant gave evidence that he had gone to China very soon after his operation. He said, ‘I was focussed on just making the most of what little I could of my life’.970 He went on to explain how not many people had the opportunity as Westerners to live on the streets in Xi’an and he thought this would assist him to 966 T 1253.35-36. 967 T 1255.30-35. 968 T 1272.6-17. 969 T 1272.28-32. 970 T 1271.30-31. -- 162 of 496 -- [2026] SADC 27 157 get qualifications which would put him ahead of others with business and economic degrees.971 827 He thought the Chinese language was secretive to the West and seemed interesting. Other members of his extended family spoke Mandarin and had an interest in Asian languages.972 828 The trip to China was the first time the applicant had left home on his own. He had not studied Chinese, nor did he have any knowledge of Chinese culture, prior to his arrival in China. What he knew about China, and, for example, where he would be staying while at the Xi’an University, had been learned via Google searches.973 Mrs Chattaway’s evidence 829 Mrs Chattaway gave evidence that following the applicant’s discharge from hospital, he underwent surgery with Prof David, undertaken on the day he was meant to be flying to New Zealand with the Exploration Society. He also had a follow-up appointment with Prof David and with the RAH because of a complaint with double vision.974 830 She said that the applicant had a lot of bruising across his face and was recovering from his injuries for about a month. During this time, he had some trouble sleeping and was taking painkillers. He was also having difficulty breathing through his nasal passages. Due to the nature of his injuries, he was unable to go to the beach or do any swimming, so he stayed home.975 831 As to whether she observed any changes in the applicant’s behaviour during the period December 2010 to March 2011, Mrs Chattaway said:976 He seemed to have lost confidence somewhat. He didn't really seem to want to socialise much, he seemed much more to want to stay home. I think he'd sort of lost faith in people, he only wanted to associate with people he knew very well. 832 Mrs Chattaway did not recall anything particularly obvious about the applicant’s behaviour during that period, but she said he needed some time to recover from what had been a terrible experience for him.977 She explained that the applicant had intended to immediately start a course at UniSA (Construction Management). However, she said:978 Well, I think the original plan was that he would, well he'd go straight on and start with UniSA on the Construction Management course. But we just thought that because of the 971 T 1271.33-1272.1. 972 T 1274.36-1275.6. 973 T 1396.18-1397.8. 974 T 894.1-26; T 895.13-16. 975 T 894.13-20; T 895.7-12. 976 T 896.5-9. 977 T 896.13-17. 978 T 895.19-27. -- 163 of 496 -- [2026] SADC 27 158 trauma of what had happened to him, that perhaps a break would be a good idea. We also didn't want him to come in contact with these men who had attacked him. So, we thought, actually, him taking a year off and having a completely different experience would be very good for him. 833 She said that the applicant seemed to like the idea, so a decision was made for him to defer his UniSA studies and to instead travel to China to study Chinese at the International Studies University in Xi’an. They contacted the University, booked the vaccinations and he left for China in March 2011.979 834 When asked why the decision was made for the applicant to travel and study in China, Mrs Chattaway gave the following evidence in cross-examination:980 A. I think for a few reasons. I think that Robert suggested it and this was when China was emerging as an economy and Robert thought it was a good idea. Also Nicholas' middle brother, Christopher, is a linguist and he is fluent in French and German, and he studied and worked in Germany, has some Italian as well, and I suppose Nicholas thought, well, you know, that Nicholas has got that, but you know, I could learn Chinese. I think he was interested in the whole idea and then he talked about it to a few friends and parents of friends and I think he was getting a lot of positive feedback about the whole concept of going over there. Q. Okay, in that answer you started by referring to your husband, I think. A. Robert. Q. I'll hear about it. Yes, but then you ended up using the pronoun 'he'. Were you referring to Nicholas getting enthusiasm about it from people. A. Nicholas, yes. 835 Mrs Chattaway explained that she had never been to Xi’an. She learned later that there were many English-speaking people there. The course the applicant was to undertake was a Beginner’s course as he had not previously studied Chinese.981 836 As to why they thought the applicant was not ready to start university in Adelaide, she said:982 Well, it was more what had happened to him, the assault and having, you know, lost that time that he would normally have spent going on the hike to New Zealand, working at the Edinburgh Hotel where he had a drop set up, going to the beach, doing all the normal things that he would have done as a relaxation after year 12 never happened for him because of what had happened at that party. 837 Mrs Chattaway explained that ‘they’ thought the applicant needed a break because of the ‘considerable trauma’ he had suffered and they did not want him in Adelaide ‘coming across these people who had assaulted him’.983 When asked if 979 T 895.28-896.1; T 896.32. 980 T 967.4-22. 981 T 967.34-968.27. 982 T 968.36-969.5. 983 T 969.23-27. -- 164 of 496 -- [2026] SADC 27 159 she had any concerns about the applicant going off to China to a remote city by himself, Mrs Chattaway said:984 A. I don't consider it remote, I mean - Q. Well, you've never been there. A. No, but there is something called the internet, you can do an awful lot of research on the internet. Q. Yes. So, you didn't have any concerns. A. I just had the normal concerns that you would have if you were sending your child anywhere for a gap year. 838 She explained that the applicant had travelled before, he was good at hiking and capable of looking after himself. He was very sociable and good at making friends. When asked whether she had any concerns about him going, she said, ‘Obviously I had normal concerns about a son going off at the age of 18 for a gap year.’985 Mr Chattaway’s evidence 839 Mr Chattaway gave evidence that the applicant applied for and was accepted into a Construction Management course at UniSA. When asked if he ever took up that role, he said:986 A. Unfortunately, no, he was unable to. Q. Why was that. A. Because he got bashed in the face in the temple lobe by a bottle in - Q. And that was 5 December 2010. A. Yeah, 5 December 2010. Q. After that incident did you take on a role as a carer for Nick. A. I did indeed, yes. Q. Along with Catherine. A. Yes. Q. Did you work again. A. No, I didn't, I couldn't because it was - you know, it was a full-time job just dealing with Nicholas. 984 T 973.29-35. 985 T 976.15-16. 986 T 991.4-17. -- 165 of 496 -- [2026] SADC 27 160 840 When asked to clarify when he in fact ceased work, Mr Chattaway gave evidence that he had been bidding on a contract in his role as a consultant for the Gulf International Bank as at the time of the incident. He said he did no further work in that role after the incident ‘as it wasn’t practical.’987 841 In response to further questioning by me seeking clarification as to the timing of certain events, Mr Chattaway then explained that in fact he had ceased bidding for a major road infrastructure project in Afghanistan in June 2010. The project was not successful. Although his evidence was unclear, I have interpreted it to mean that the project failed to come to fruition due to turmoil in Afghanistan.988 He confirmed he had not engaged in any work since June 2010.989 842 When Mr Chattaway was asked to focus on the period immediately after the incident, and before the applicant left for China, he explained that before the incident the applicant had been extremely gregarious but after the incident:990 ... he didn’t go out at all. I mean he didn’t go out until he left for China. I mean he didn’t go out and see friends, he didn’t go out of the house really ... 843 Mr Chattaway confirmed that the applicant did attend his Year 12 graduation (or passing out parade) which was held shortly after he came out of hospital. He described the applicant as being very embarrassed about the bruises on his face and felt humiliated as it was in front of the whole school but that he had attended as he felt he had to go.991 844 When asked how it was decided the applicant would go to China, Mr Chattaway gave the following evidence:992 Well we were - we had been advised there was going to be a police prosecution and we didn't want Nicholas exposed on the street in Adelaide to these two boys who could bash him again. And we were concerned about him remaining in Adelaide, and clearly he wasn't willing or able to take up his course in UniSA, we deferred it. And so we sent him to China because we thought a complete change of scene and a complete change of environment would assist him to put behind him and forget what had happened. 845 When asked again about why the decision was made for the applicant to go to Xi’an, Mr Chattaway explained that the University there was the premier language school in China, and highly respected by the United Nations. It was also in ‘old’ China and he wanted the applicant to see ‘old China’.993 846 In cross-examination, Mr Chattaway denied that it was his idea for the applicant to study in China. He explained that his wife had conducted even more 987 T 993.34-37. 988 T 995.2-996.15; T 1019.22-27. 989 T 996.16-17; T 996.36-997.3. 990 T 991.32-35. 991 T 1035.1-16. 992 T 992.27-36. 993 T 997.13-38. -- 166 of 496 -- [2026] SADC 27 161 research into the University than he had.994 When it was suggested to him that it was not the applicant’s idea, he said:995 He actually asked his friends and some of his friends’ parents, and they thought it was a major opportunity. 847 Mr Chattaway was asked during his evidence-in-chief if he had any concerns about the applicant’s wellbeing or safety when he left for China. He said:996 No, it was – I think he was happy to go. I think it was – you know. It was fine. 848 He explained that the course the applicant was undertaking in China was not designed to be stressful, rather it was designed to be a cultural experience.997 849 During cross-examination, Mr Chattaway denied having any concerns about the fact that the applicant was going to a foreign country where he did not know the language. He explained that the Xi’an University was a premier language school entirely for expatriates who wanted to learn the language. When asked if the applicant had studied a language at school he said, ‘No, he chose to focus in on hard sciences and he did English and Mathematics, and he didn’t do a language’.998 He went on to say that as a child the applicant was very good at French but ‘he lost the opportunity when he came to Australia to actually study French’.999 He gave the following evidence:1000 Q. Just going back to that. If Nick was so successful at French before he came to Australia, why didn't he pursue French in high school at Saints. A. The French in St Peter's was at a different level. When you've learnt a language at a certain level and then you try and step down a level it's not easy to do. Q. So you think he was too highly developed in French to do it at Saints. A. He was focussing in on his - particularly his accent; his accent was very good and that required - you know, like for instance Christopher whose French had reached a level whereby he was mainly writing it when he came to St Peter's. He went on to achieve university level French at St Peter's. Nicholas' French was not developed, it was purely, you know, what's the word for it, non-written, it's verbal French. It was conversation French. And so it's not easy when you come to a system whereby it's academic written French, it doesn't work for you. Q. Well, if it was said that Nicholas didn't do a second language at St Peter's in high school because he was in a special needs group - A. That's true. 994 T 1025.18-26. 995 T 1025.29-30. 996 T 997.11-12. 997 T 1000.16-19. 998 T 1026.2-3. 999 T 1026.10-12. 1000 T 1027.1-26. -- 167 of 496 -- [2026] SADC 27 162 Q. That's true. A. That's true. It wasn't considered as important as, you know, in Copthorne he did French. 850 Mr Chattaway said that he was confident the applicant was capable of handling the foreign environment in China and being isolated from friends and family. As to being isolated from friends, he said, ‘Which was good after he’d been assaulted. I was concerned about the police case and people talking to him about that, yes.’1001 851 Mr Chattaway gave evidence that he thought sending the applicant to China would get him into a different environment and help to cheer him up. He said:1002 Yeah, doing something different and with different people in a different environment in a different culture, and it's quite exciting and stimulating. There was no indication at this stage of any - from the, you know, the medical staff at the RAH or the medical staff that we spoke to; there was no indication that this would be a wrong move. It was, you know, it was quite the opposite. Medical evidence1003 852 On 8 December 2010, the day after his discharge from the RAH, the applicant consulted Dr Angas for symptoms associated with a lingering cough. Dr Angas noted, ‘recent assault and fractures – due for surgery next Monday by David David’. She noted the reason for the attendance to be ‘bronchitis’ and prescribed antibiotics.1004 853 The applicant returned to see both Dr Angas and a registered nurse on 5 January 2011 (ie one month post incident) for the purpose of obtaining advice as to vaccination in preparation for a forthcoming trip to China. Dr Angas noted that the applicant ‘wants to go to China to study Chinese planning to leave end Feb for 10 months’.1005 854 Relevantly, there is no reference, either in the notes made by Dr Angas or the notes made by the registered nurse, to the incident or of the applicant continuing to suffer any symptoms of any type, secondary to the incident. 855 At Mrs Chattaway’s request, Dr Lamb prepared a report dated 7 January 2011, wherein he stated:1006 1001 T 1028.31-33. 1002 T 1029.22-29, noting there was no evidence that anyone had discussed the merits (or otherwise) of the applicant going to study in China with any doctor, prior to the decision being made, or, at any time prior to him departing for China. 1003 I have previously described the applicant’s attendance at the RAH Eye Clinic on 19 January 2011 and for final review by Prof David on 16 February 2011. 1004 Exhibit R42 at pp 400-401. 1005 Ibid at p 400. 1006 Ibid at p 910. -- 168 of 496 -- [2026] SADC 27 163 Nicholas has been a patient of mine between 2006 and 2011. He is an extraordinarily fit young man, and he does not have any significant medical conditions. Nicholas does not have any communicable diseases, and has not had any such diseases in the past. Nicholas should be perfectly capable of studying overseas for 12 months. I would not anticipate any health problems. 856 Dr Lamb gave evidence that he was unaware of the incident at the time of that appointment. He said:1007 I do not know whether Nicholas attended that appointment. I think he did not. I think his parents were seeking a medical clearance predominantly because the Chinese authorities needed to make sure he did not have a communicable disease or would be a burden on the Chinese health system. 857 In cross-examination, Dr Lamb confirmed that he did not record in his notes who attended on that occasion but it could have been the applicant. When asked if, on that occasion, he was provided with any current medical history relating to the applicant, Dr Lamb could only refer to his notes:1008 Which say that he was going to do a tertiary entry test; that his TER was 78.7; that he wanted to do Economics and Construction Management at UniSA; he was wishing to take Ritalin for days when he had study; and that he wanted a letter to say that he was fit and healthy; had no communicable disease; and that he should be able to work and study in China for one year. 858 The applicant returned to see Dr Angas on 21 February 2011, at which time Dr Angas recorded that he was leaving on Saturday for China. This visit was for the purpose of seeking antibiotics for an infected toe. There is no reference in her notes to the incident or of the applicant suffering any ongoing symptoms (either physical or psychological) arising from the incident.1009 Applicant in China – March to December 2011 Applicant’s evidence 859 There were no documents in evidence relating to the applicant’s studies in China, nor any other documentary evidence pertaining to this time in the applicant’s life. As such, the only evidence as to what the applicant did in China, came from the applicant. 860 The applicant was asked about his mental health immediately prior to travelling to China. He said:1010 1007 T 1167.17-23. 1008 T 1173.28-34. 1009 Exhibit R42 at p 400. 1010 T 1272.36-1273.4. -- 169 of 496 -- [2026] SADC 27 164 I hadn’t yet developed PTSD. I was probably suffering PTSD. I don’t know. I don’t know, James. When I got to China I started having problems with my PTSD.I started breaking down and crying, you know, things that I – in that environment I shouldn’t have been dealing with. I don’t know. And then it carried on when I got back to Australia. 861 He said he ‘was traumatised by being almost beaten to death’.1011 As to when he first felt this way, he said, ‘Maybe – January, February, March – August. August or June.’1012 862 The applicant gave evidence that it had been intended that he reside at the university accommodation while studying in China. However, things did not turn out as planned. He stopped studying after about two months. He explained that he had paid a sum of around 16,000 yuan up front for both semesters, and as he had paid upfront, there was no impetus for him to continue to go to university.1013 863 The applicant did not take his Ritalin to China, meaning he was not taking any medication while in China to assist him with his concentration.1014 During his first month there he contracted dysentery and was very ill for well over a week.1015 He said, ‘I almost died’.1016 864 When asked to explain what had happened with respect to his accommodation, the applicant gave the following evidence:1017 Oh god. I had been attending through people that I knew at the universities and volunteer work in the local orphanage for disabled children and we were dealing with children with harelips and feeding them and basically eight babies died a day and I started feeling quite emotional and after that and the university started ripping me off money, the money that I - trying to overcharge me and with that, with what I had been through in Adelaide, that trauma of being - I was beaten to death by people and this is a quite difficult time is what I'd say. 865 The applicant gave evidence that he left the university accommodation after about three or four months. He then spent various periods either paying a friend to live in a room in his apartment or living on friends’ couches. The longest he had stayed at any place was around three months. The applicant described himself as otherwise ‘homeless’ for several months of that year.1018 Later he explained that he was welcome to sleep on the couch at the house of one of his friends, Hasnain, and that he would go there every three days or so, and at other times he slept on couches at other friends’ houses. He also described spending a month sleeping on his skateboard, living in the gutter.1019 1011 T 1273.6. 1012 T 1273.12-13. 1013 T 1278.9-23. 1014 T 1396.7-17. 1015 T 1397.15-26. 1016 T 1397.19. 1017 T 1276.5-15. 1018 T 1276.16-1277.11; T 1277.29-1278.6. 1019 T 1287.7-1288.24. -- 170 of 496 -- [2026] SADC 27 165 866 The applicant said that when he was still in China his parents knew that he was homeless. He said that they were quite concerned and that he did not think they would continue to support him (in China) for another year.1020 867 When asked what he was doing in China, he said:1021 Drinking, partying, meeting girls. 868 He described going to pubs, meeting friends and doing a lot of casual drinking.1022 He learned a lot of Mandarin on the streets and described himself as being very good at it, becoming fluent in Mandarin and in the Shaanxi dialect.1023 When asked if it was fair to say he had made the most of his circumstances while there, he said, ‘I think so.’1024 869 The money he had spent on tuition comprised a very large portion of the money he had available to him in China and he ran out of money around mid-year. He did not want to ask his parents for money and described such a conversation as being one he did not want to engage in. Instead, he spent periods living on the streets. As to how he survived he said:1025 Living on very meagre funds, living on a dollar a day, not eating very much, drinking water, walking. 870 The applicant explained that he had spent the money his parents had given him on inappropriate things. He was drinking alcohol close to every night for 95% of the time he was in China. He was buying people drinks and getting drunk on a regular basis.1026 He said he would be ‘drunk a lot of the week’.1027 871 The applicant gave evidence in cross-examination, that his parents were sending him an allowance (or regular money), however, he ‘was spending it on alcohol so like they were getting a bit fed up with it.’1028 He had overspent on alcohol, drinks and hanging out with very rich people, wasting his money.1029 His parents had sent him money to rent a room for a month, but he had used that money to buy a skateboard.1030 872 When asked in cross-examination about a history apparently taken from him in 2013 about having fathered a child while in China, the applicant said:1031 1020 T 1291.29-32. 1021 T 1278.8. 1022 T 1276.21-23. 1023 T 1278.14-15; T 1397.33-35. 1024 T 1397.38. 1025 T 1279.18-19. 1026 T 1282.1-30. 1027 T 1282.36. 1028 T 1399.8-9. 1029 T 1399.6-14. 1030 T 1399.24-26. 1031 T 1402.29-37. -- 171 of 496 -- [2026] SADC 27 166 I'm not going to go about talking about how women that I had slept with in China. I had been partying five out of the seven days a week, so I was with a lot of women at that point. And in China there is - they test you for venereal diseases on entry, so there was no point using condoms. What I didn't realise is that those women would become pregnant, so it's not delusion, it's not my mental state, I'm just filling in gaps. 873 The applicant denied taking any drugs at all in China, including using prescription drugs recreationally. He said, ‘(i)llegal drugs are as stated, they are illegal. You can’t get them’.1032 874 The applicant described receiving a lot of assistance from friends while in China. He said he had worked for about a month as a teacher at the English school of his friend, Tommy, but was fired because of his lack of punctuality, having arrived half an hour late for one session. Tommy had let him live at his house rent free from September to December.1033 875 He also worked doing one modelling shoot for which he was paid $100.1034 876 When asked about the circumstances in which he was able to afford to pay for alcohol, or whether others would buy drinks for him, the applicant said:1035 No, no, I didn't get people to pay for my drinks, I used to for the nightclub, my job was to bring in foreign clientele to fill the nightclub up and they would give me small amounts of money and they would pay for my drinks completely. So my tab was just off the books, so I could have as much as I wanted. 877 He said he was paid in alcohol. This arrangement lasted for around eight to 10 months.1036 878 During examination-in-chief, the applicant was asked about the circumstances in which he had come home from China. He said:1037 I was in pretty bad shape. I hadn’t been, like, washing my clothes regularly. I was living like a bum, pretty much. 879 He was then asked what things he was doing, or what about his appearance, led him to the conclusion that he was living like a bum. He said:1038 A. Well no, I was living relatively well. I couldn't imagine any homeless person in Xi'an that was living like I was living. I'd say that most people in Adelaide at my age who are at home weren't living like I was living. It was just I was spending my money that was coming in and I was spending it on alcohol. Fine food and alcohol. 1032 T 1283.1-2. 1033 T 1288.35-1290.21. 1034 T 1290.26-27. 1035 T 1290.31-36. 1036 T 1291.1-6. 1037 T 1283.14-16. 1038 T 1283.32-1284.4. -- 172 of 496 -- [2026] SADC 27 167 Q. When you were - A. I don't think I was living like a ... characteristically like a bum, no. I mean, I was hanging around some seriously high rolling people. 880 The applicant explained that he thought he was living this way as a coping mechanism to push away the trauma that he had suffered. He described getting drunk and being in a flood of tears, more than once, being overwhelmed by emotions and the memory of almost being beaten to death.1039 He recalled this happening about once a month and said it had also happened at times when he had not been drinking.1040 881 In cross-examination, the applicant was asked about other things which had distressed him while he was in China. He confirmed that while he was working at the orphanage, over a month or two-month period, there was a point where eight babies had died in one day. He said he was so distressed by this that he left and ‘it was soon after that I started become (sic) drinking more and having those sort of issues’.1041 He explained that he had done first aid and natal care at school, but at 18, he was not ready to be doing this type of work and it was a lot for him to process.1042 882 Sometime during the middle of the year, he had witnessed two people being killed, when they went under a bus. This had been a distressing thing to witness.1043 883 The applicant gave evidence that it was in around August or June that he had started breaking down and crying from time to time. This was when the alcohol started to turn him emotionally. He explained that by this time he was starting to process what had happened to him with the assault ‘and putting things on top of that was a problem for me.’1044 884 The applicant gave evidence that he did not want to come home and that he wanted to stay in China. He had missed his first flight home because he went out drinking and intentionally missed the flight. He was meant to be home during the summer, so he borrowed 200 yuan from his ex-girlfriend to get the taxi to fly home.1045 He had wanted to stay in China forever. He was enjoying it, ‘it was free’.1046 Mrs Chattaway’s evidence 885 Mrs Chattaway gave evidence that while the applicant was in China, she and her husband remained in regular contact with him, although they had some 1039 T 1284.15-28. 1040 T 1285.1-9. 1041 T 1400.9-10. 1042 T 1400.15-21. 1043 T 1400.24-30. 1044 T 1400.35-1401.11. 1045 T 1291.7-1292.8. 1046 T 1400.34. -- 173 of 496 -- [2026] SADC 27 168 difficulty contacting him. Contact was made via phone to the student accommodation where he was living. One of the students would answer the phone and then go and get him.1047 886 She said the applicant had his mobile phone with him but they found it more effective to reach him on the landline. She said he was not very good at answering his phone. She did not know the reason why.1048 887 Mrs Chattaway gave evidence that she thought the applicant found settling into Xi’an and the course more difficult than he had anticipated.1049 Although they had paid for him to study for the full year, they found out, in around August 2011, that he had dropped out of the course. Mrs Chattaway did not know exactly when he dropped out. She did not know why he had dropped out. She said, by way of hearsay, ‘I think maybe he wasn’t coping very well and probably his mental state was deteriorating.’1050 888 In cross-examination, Mrs Chattaway confirmed that they were initially contacting him about once every two weeks by telephone at the student accommodation. She believed that when she rang sometime in July or August, she was told that he no longer had a room there.1051 889 After the applicant dropped out of the course, he was no longer living in student accommodation and Mrs Chattaway came to learn that he was occasionally sleeping on the couch of a friend, Hasnain. Although the applicant had taken his mobile phone with him, he was not very good at answering his phone, so they either waited for him to ring them, or they would contact him through Hasnain.1052 890 Mrs Chattaway discussed with the applicant the possibility of him transferring to a different university, however, the applicant did not wish to do that and she learned that he was occupying himself assisting at an orphanage.1053 She gave hearsay evidence that the applicant told her that female babies were abandoned and put in dumpsters.1054 891 She and her husband sent the applicant money throughout the year to financially support him.1055 892 Mrs Chattaway was asked her assessment of the applicant’s behaviour or mental health during her contact with him between August and December 2011. 1047 T 896.37-897.2. 1048 T 970.20-30. 1049 T 897.5-6. 1050 T 897.28-30. 1051 T 970.31-971.21. 1052 T 898.10-16. 1053 T 898.19-26. 1054 T 973.15-17. 1055 T 898.27-30. -- 174 of 496 -- [2026] SADC 27 169 She said she could not really assess the applicant’s mental health and described him as ‘really, really hard to get hold of’.1056 893 The applicant eventually returned from China in late December 2011, after Christmas, when he failed to book a connecting flight to get him from Xi’an to Shanghai to return on Christmas Eve as had been anticipated. Mrs Chattaway explained that she was in contact with Hasnain during this time to assist with his return.1057 When the applicant got off the plane, he had long hair and was carrying a long skateboard that he had purchased in China.1058 He then returned to live at home with her and her husband. Mr Chattaway’s evidence 894 Mr Chattaway gave evidence that the applicant was in China between March and December 2011. Although he had taken his mobile phone with him, it did not work in China. To contact the applicant, they had to call him at the student accommodation. They called as often as they could, as he was very difficult to contact.1059 895 There came a time in around July or August when they rang the student accommodation and was told he was no longer there.1060 896 Mr Chattaway understood that the applicant dropped out of his course about halfway through. He became aware of this ‘probably August’ and was very unhappy about it. He described the course as an easy course, comprising only of calligraphy and Chinese language. They had paid for the full year and wanted him to complete it.1061 897 When asked during cross-examination whether the applicant had told him the course was harder than he had thought, Mr Chattaway said:1062 I don't think he said anything about the course. I think he said it was ridiculously easy. It was painting and conversational Chinese. I think he said he was getting far more Chinese on the street than he was on the course and that you know that he was speaking to Chinese people all day and all the time - everything and people who didn't speak English. So he was communicating in Chinese which is, you know, sort of good and bad. 898 Mr Chattaway gave evidence that they never really got a straight answer from the applicant as to what he was doing in China thereafter.1063 After he returned to Australia, they learned that he had spent some time living on the streets, sleeping 1056 T 899.15. Noting Mrs Chattaway also gave hearsay evidence of some notes the applicant provided to enable a Victim Impact Statement to be prepared for the intended criminal prosecution. That statement was not in evidence and I have disregarded the evidence she gave at T 899.4-12. 1057 T 899.16-26. 1058 T 900.11-14; T 914.35-915.2. 1059 T 998.20-38. 1060 T 1030.1-15. 1061 T 999.4; T 1000.1-5; T 1000.15-18; T 1000.27-33. 1062 T 1031.21-29. 1063 T 1000.24. -- 175 of 496 -- [2026] SADC 27 170 on his long skateboard and had also been doing dangerous things, such as hanging off the back of lorries, while on his skateboard.1064 He was aware that the applicant had befriended a Pakistani student ‘Hassani’, with whom he lived during the colder weather. The applicant gave him Hassani’s mobile number to contact him. Notwithstanding this, he agreed that weeks would go by during which they were unable to contact the applicant.1065 899 Mr Chattaway recalled that they did contact the applicant near the end of his trip as they were trying to make sure he got the flight home. He missed his first flight, for reasons not known to Mr Chattaway. When the applicant eventually arrived home, he was ‘completely chaotic’ and ‘dishevelled and bearded and extremely unwell’.1066 Applicant returns from China – January to March 2012 Applicant’s evidence 900 The applicant gave evidence that although it was intended that upon his return from China, he would start a degree in Construction Management at UniSA, his parents did not think he was ready for it. Instead, he enrolled in a TAFE course in Surveying.1067 He said he started the TAFE course and an extra-curricular subject/elective in Outdoor Education offered by UniSA at the same time, in February 2012.1068 901 He said he struggled with both of these courses because he became paranoid and formed a belief, in February 2012, that the stonemasons were hunting him (or harassing him). He described being very mentally ill and feeling as if he was being ghosted and gaslit. 1069 When asked if that was the first time he had felt this way, he said:1070 A. Yes. People during the - when I was being gaslit and ghosted during the Adelaide course people were putting up pictures to do with - I'm a small part indigenous in this country or your country and they put many offensive images into the PowerPoint presentations and they had witches naked dancing around fires like in some sort of weird ceremony and it started to make me quite paranoid, they were laughing and all this sort of stuff and they thought they're really quite clever with it. Eventually people figure out they're harassing me. Q. So were these things that you saw at that time. A. Yeah, in the course. Q. As part of the TAFE course or the UniSA course or both. 1064 T 1000.35-1001.4; T 1032.4-10 (noting this is hearsay). 1065 T 1001.7-17; T 1031.11-13. 1066 T 1001.24-32. 1067 T 1292.11-24; T 1293.10-16. 1068 T 1294.3-4; T 1294.17-27. 1069 T 1292.24-36; T 1294.5-16. 1070 T 1295.30-1296.7. -- 176 of 496 -- [2026] SADC 27 171 A. The UniSA course and I was being harassed at the same time in the TAFE course. It only stopped when I went to Flinders. 902 He perceived that others were using imagery of witches and rituals to try to make him paranoid. In cross-examination, he described other students having put up offensive images in a PowerPoint presentation. He gave the following evidence:1071 Q. Was that part of your delusion or did that happen. A. That happened, yeah. Q. What were those images. A. Witchcraft, dancing over fires, that sort of stuff, sort of like burning rituals, rituals and offerings which is a satanic practise. Q. Can I suggest to you - A. At that time I had many nightmares about people murdering babies. I started having those sorts of nightmares. That was quite distressing. 903 He still believed he had been targeted and bullied by some of the students and staff at TAFE and UniSA.1072 Mrs Chattaway’s evidence 904 Mrs Chattaway described the applicant as a shadow of his former self after his return from China. She said:1073 Well, he didn’t seem – he sort of didn’t seem particularly like Nick; he seemed like a sort of shadow of who Nick had been. He wasn’t very confident; he wasn’t very outgoing; he’d been very, very sociable; he wasn’t – you know he was changed but we couldn’t really put our finger on what was actually the matter. 905 She gave evidence that at the end of February, they took him to see the GP, Dr Ronnie Koh, who recommended a referral to a psychiatrist, culminating in the applicant being seen by Dr Barry Rowe, Psychiatrist, in April 2012.1074 906 Mrs Chattaway also gave evidence about the applicant’s studies. She said the family thought he was not ready to start his UniSA course so instead he enrolled in Surveying at TAFE at O’Halloran Hill. He also enrolled in a ‘bug’ course at UniSA in Outdoor Education. She believed university started in March.1075 907 The applicant completed the ‘bug’ course within the allocated timeframe of a few months, albeit with a lot of difficulty.1076 However, by the start of April, he 1071 T 1339.4-13. 1072 T 1339.31-1340.3. 1073 T 899.31-36. 1074 T 899.37-900.8. 1075 T 900.18-38. 1076 T 901.2-6. -- 177 of 496 -- [2026] SADC 27 172 was refusing to go to the TAFE course because he thought he was at the centre of a satanic cult.1077 She recalled he was making these type of comments about that course by March, and thought he may have also done so during February.1078 908 Mrs Chattaway confirmed that when the applicant started studying again, she had taken him to see Dr Lamb for review. She agreed that this was also for the purpose of having Ritalin prescribed, to assist the applicant with his further studies, ‘but it would have been at a very low dose.’1079 Mr Chattaway’s evidence 909 Mr Chattaway gave evidence that following the applicant’s return from China, he was very reticent to talk about what he had been doing there. He described the applicant as being ‘fairly paranoid’ and Mr Chattaway had no idea what had happened or what was going on with him.1080 910 It was Mr Chattaway’s evidence that within a week or two of the applicant’s return, they had tried to get him in to see the GP for a referral to a psychiatrist.1081 911 Mr Chattaway described the applicant as having become withdrawn, insofar as he did not go out or see his old friends. He was difficult to hold a rational conversation with. His behaviour was strange and he was paranoid that people were talking about him. The applicant started to become very keen on physical activity, which Mr Chattaway reasoned was for self-defence purposes, as he was frightened of being assaulted again. He described the applicant as attending an Aboriginal gym, where he would be boxing six hours a day. He started doing weights and was ‘manically exercising’.1082 This was in the period prior to the applicant seeing Dr Rowe in April 2012.1083 912 Mr Chattaway was cross-examined about the applicant returning to see Dr Lamb following a referral from Dr Angas in February 2012. After being directed to the relevant notes, he agreed that part of the reason for the referral was because the applicant had lost 10 kg since his return from China.1084 When Mr Chattaway was asked if another reason for Ritalin to be prescribed for the applicant was because he was going to resume studying, he said:1085 A. I don't think so, no. Nicholas didn't like taking Ritalin and I think that once he had stopped studying I don't think he was taking Ritalin and I'm not sure that Dr Lamb could prescribe Ritalin because Dr Lamb was a paediatrician and Nicholas was an 1077 T 901.9-11. 1078 T 902.8-13. 1079 T 976.20-977.15. 1080 T 1002.3-13. 1081 T 1002.17-20. 1082 T 1004.2-3. 1083 T 1003.24-1004.3; T 1006.38-1007.3; T 1008.1-7. 1084 T 1033.35. 1085 T 1034.8-15. -- 178 of 496 -- [2026] SADC 27 173 adult by that stage. I mean, I maybe wrong, but you'd have to check on that the realities of it but I don't think that a paediatrician can supply Ritalin to an adult. Medical evidence Double vision 913 Dr Crompton saw the applicant on 18 January 2012 – that is, shortly after his return from China– at which time he was still reporting double vision on upgaze but said this was not causing too many problems. He continued to have slight restriction of upgaze on the right but no longer had any numbness of his right cheek or upper gums. He did report a loss of the sense of smell. 914 Dr Crompton expressed the opinion that the applicant’s orbital fractures had impeded his ability to look up, with consequent double vision imposing about a 15% visual disability in one eye. This impairment would be permanent. He did not recommend any surgery for this condition.1086 Weight loss 915 The applicant first consulted Dr Angas following his return from China on 17 February 2012. At that time he sought a referral back to Dr Lamb but also reported having lost 10 kg in the two months since his return from China. Dr Angas noted:1087 ate lots McDonalds while over there was there for 10 months has been exercising since home, also home diet ... would like blood test ... looks fairly well 916 There is no reference in the notes made by Dr Angas on that occasion to the applicant suffering any mental health issues or any discussion about a referral to a psychologist or psychiatrist. ADHD 917 The applicant returned to see Dr Lamb at Dr Angas’ request on 2 March 2012. 1086 Exhibit P16 at p 2. 1087 Exhibit R42 at pp 398-399. -- 179 of 496 -- [2026] SADC 27 174 918 In a letter to Dr Angas dated 2 March 2012, 1088 Dr Lamb stated that during the applicant’s time away studying in China, he had had not taken any ADHD medication. However, as he intended to resume studies (a Diploma of Surveying at TAFE), he wished to resume stimulant medication for those days when he had tutorials and lectures. As a result, Dr Lamb gave the applicant a new prescription for Ritalin. Dr Lamb also noted that the applicant was quite bitter about the fact that police had dropped the charges against the first and second respondents arising from the incident and was contemplating pursuing civil proceedings. 919 Dr Lamb gave evidence that at that time, the applicant’s presentation was ‘pretty much unchanged’.1089 It was at the end of that consultation that he first learned about the incident, in the context of the applicant telling him the charges had been dropped, something which had upset the applicant.1090 This was the last time Dr Lamb saw the applicant.1091 Mental health issues 920 The medical records held by the Arkaba Family Practice are in evidence.1092 921 The applicant attended the Clinic on 30 December 2011, seeking immunisation for typhoid. There was no complaint of any mental issues.1093 He next returned to the Clinic on 17 February 2012, seeking a referral to Dr Lamb to restart Ritalin (in preparation for his resumption of studies at TAFE) and to investigate his weight loss.1094 922 There is no evidence of the applicant seeking assistance for any mental health issues from anyone at the Clinic, or indeed any health professional, prior to 16 April 2012.1095 April 2012 to early 2013 Applicant’s evidence 923 There are documents in evidence which establish that the applicant commenced his TAFE course in Spatial Information Services on about13 February 2012 and reportedly withdrew from it on about 24 April 2012.1096 924 The applicant gave evidence that he had dropped both the UniSA and TAFE courses sometime during 2012 as he was having regular breakdowns and could not 1088 Ibid at pp 911-912. 1089 T 1167.31-32. 1090 T 1168.3-6; T 1174.25-35. 1091 T 1168.7-8. 1092 Exhibit R42 at pp 391-486. 1093 Ibid at p 399. 1094 Ibid at pp 398 and 466. 1095 Ibid at p 398. 1096 Exhibit R42 at pp 117, 123 and 606. -- 180 of 496 -- [2026] SADC 27 175 attend. He had instead started a course at Flinders University, sometime after June 2012.1097 925 The issues he had experienced at TAFE (and apparently UniSA) with perceived harassment ceased when he attended Flinders University. He perceived that he was being harassed by people who knew about the incident and were not mature enough to be considerate towards him or have regard to the state of his mental health. He said:1098 ... when I went to Flinders University, it stopped because people weren’t interested. They were interested in the subjects that they’re trying to learn, instead of like these people who, you know...who just want to climb the ladder. 926 He described receiving support from the head lecturer and head doctor at Flinders University, who knew he was mentally ill, were aware of how badly he had been ‘bullied’ at UniSA and wanted him to succeed.1099 He described getting better, then worse, then better again mentally throughout 2012, referring to assistance he received from a person called Roei Plaves, who he described as an Israeli paratrooper, who was also his psychologist.1100 927 The applicant gave evidence that there were several times he felt mentally ill during the time he attended Flinders University in 2012. When asked what sorts of things were happening then, he described being unable to concentrate. He did not feel persecuted, was enjoying the course and was trying hard to complete it. He said he was ‘on a B+’ and doing quite well.1101 928 The applicant gave evidence that he became very unwell towards the end of the year, just before the exams. He stopped studying and going to his classes and started to only go to the gym. He explained that he had paranoia and was very ill. He started to think he was a superhuman or operative and prioritised his physical health and fitness over his study. When asked to describe what he meant by feeling paranoid, he said:1102 More so just - I don't know how I'd describe it, you know, I was very self-conscious, very aware. I think this had been left over from, you know, being bullied at UniSA, feeling that like - yeah, anyway, I don't know. I don't know. 929 He said his mother would drive him to University and was very supportive of him during this time.1103 1097 T 1295.23-26; T 1296.8-16. 1098 T 1298.25-29. 1099 T 1298.33-1299.4. 1100 T 1299.9-20; noting there was no material in evidence from Roei Plaves. 1101 T 1300.7-19; noting that during this evidence the applicant confirmed that the earlier evidence he had given to the effect that he was studying at UniSA during the second semester of 2012 was incorrect, see T 1296.12-15. 1102 T 1301.19-23. 1103 T 1302.8-27. -- 181 of 496 -- [2026] SADC 27 176 930 The applicant gave evidence that he was struggling financially at this time which had made him quite distressed. His application for a Disability Support Pension had been rejected more than five times, notwithstanding what he described as his diagnosed ‘schizophrenia or severe PTSD’.1104 In cross-examination, he agreed with a proposition that the first time he applied for the Disability Support Pension was in December 2012, after his first admission to hospital for mental illness. He also agreed that the decision by Centrelink to decline his application was made in November 2013 (after his third such admission).1105 931 The applicant recalled being admitted to hospital for mental health issues at the end of 2012. He described being at ‘the C3’ hospital (the psychiatric clinic at the old RAH) for over three months. This was the first time he had been detained for mental health issues, albeit he was first diagnosed with a mental health condition earlier, ‘at the beginning of 2012’ by Dr Rowe.1106 932 As to why he was detained at this time, he said:1107 ... I was walking around my backyard naked going for a swim. I thought that was acceptable. I wasn’t well. 933 In cross-examination, the applicant denied having been of the belief that he was a silverback gorilla and his parents were his gorilla wives, at the time he was first detained for mental health issues in October 2012. He said:1108 I never actually said this. This got completely distorted through the local, locum that came on to do my interview, who could barely speak a lick of English, which is why the whole statement sounds completely ridiculous. I was saying I felt like I was being treated like an animal because I had no money, due to this court case, due to these boys putting me in hospital, due to having nothing to spend on myself. They left me skint. 934 The first time he had suffered delusions was in March 2012.1109 He denied ever feeling delusional, or having behaved in this type of way, prior to the incident.1110 He gave the following evidence:1111 Q. Would it be correct to say that you only started feeling or experiencing things that you now recognise to be delusions, or at least some things - A. I think to some degree it was financial, because of the situation I've been put in by the two that assaulted me. And also just the trauma of the event. I think if I actually had money and like, you know, a foundation of not being ... my PTSD, I think this could have been avoided. But it hasn't. 1104 T 1303.1-35. 1105 T 1404.27-1405.6. 1106 T 1303.36-1304.32. 1107 T 1306.26-28. 1108 T 1341.6-14. 1109 T 1340.17-20. 1110 T 1306.38-1307.16; T 1307.26-33. 1111 T 1307.17-25. -- 182 of 496 -- [2026] SADC 27 177 935 In cross-examination, the applicant was questioned about what he had purportedly told Dr Tomasic in April 2013 as to his alcohol and drug use. It was suggested to the applicant that he had denied regular alcohol use but admitted intermittent binge drinking and had told Dr Tomasic that his heaviest intake was when he worked in China drinking 10 drinks a day as it was cheap. The applicant could not remember seeing Dr Tomasic. He said that at that time he was floridly psychotic and saying all sorts of ludicrous things that were not true. However, he admitted that the proposition put to him about his alcohol use, was true.1112 936 It was also suggested to the applicant that he had told Dr Tomasic that he smoked marijuana rarely now, but that in July to August 2012 he had smoked 10 joints a day. The applicant said he did not remember saying any of that.1113 Although he did not expressly deny giving such a history to Dr Tomasic, he said:1114 A. What, I'm being coerced by a doctor when I was mentally ill. You can say that about anybody. It's not a real testimony because it's under distress. Q. Is that your explanation that Dr Tomasic coerced you into saying that. A. I think the medication I was on is a pharmaceutic that affects your neurochemistry and - I mean do you listen to anything I say? Your Honour, am I really supposed to believe that I am a mentally ill person? Mrs Chattaway’s evidence 937 Mrs Chattaway gave evidence that as the applicant was refusing to attend his TAFE course, they decided he needed a break and a fresh start. He enrolled to do Geographical Information Systems at Flinders University majoring in Archaeology. Mrs Chattaway explained that she would drive him to the course and wait in the car park to make sure he came back. She subsequently came to learn that instead of attending classes, the applicant was spending hours at the gym.1115 938 By this stage, the applicant was regularly seeing Dr Rowe. She said:1116 So, basically we had total care of him 24 hours a day until mid-October 2012 when he had a complete psychotic break, and he went into the Royal Adelaide for about a month. 939 Mrs Chattaway described what she had observed of the applicant’s behaviour when he ‘broke down’. He thought the television was talking to him, he would take off all of his clothes and think he was a gorilla, and that they were his gorilla wives. He refused to clean his teeth, something which she had to do for him.1117 1112 T 1393.1-33; noting Dr Tomasic’s notes were not in evidence, nor was any report or letter authored by Dr Tomasic. 1113 T 1392.34-38. 1114 T 1393.9-17. 1115 T 901.15-37. 1116 T 902.28-31. 1117 T 903.5-9. -- 183 of 496 -- [2026] SADC 27 178 940 When Mrs Chattaway was asked about anything else she had observed as to the applicant’s behaviour between February and October 2012 which had concerned her, she described taking him to a Rugby Final in September 2012, during which he appeared very withdrawn and preoccupied with his own thoughts.1118 Mr Chattaway’s evidence 941 Mr Chattaway’s recollection was that the applicant started the TAFE course in Surveying, but ceased that course in about June, as he thought he was at the centre of a satanic cult and that people were monitoring him. They then ‘tried again’ and enrolled the applicant at Flinders University doing Geographical Information Systems, which was aligned to his original course, but required him to do fewer subjects. That did not work either, as he was spending up to six hours per day at the gym.1119 942 In cross-examination, Mr Chattaway disagreed with a proposition that being fit and attending the gym was something he had been interested in before the incident. He denied that the applicant had ever been interested in weights and gym work. He said the applicant’s prior interest had been in ergos for rowing and bodybuilding for swimming and surfing. After his return from China, that interest shifted to upper body, leg strength and forearm strength for punching. He conceded that lifting weights and upper body strength were aspects of training for rowing, but described the focus on that training being to produce thin, athletic people, rather than musclebound boxers and weightlifters, which the applicant was indulging in.1120 943 Mr Chattaway acknowledged that he did not go to the gym with the applicant. However, he described the applicant lifting huge weights in the garage at their home. He went on to describe a recollection of the applicant carrying those weights to a nearby park. He agreed that incident had occurred in August 2013, rather than 2012 but said that was but one of many similar events.1121 944 He said that he encouraged the applicant to delete his social media accounts as he was beginning to say more bizarre things, which he did not want published. When asked what those bizarre things were, he said:1122 I don't recall exactly when but he thought he was a gorilla at one stage. He took his clothes off and we had problems keeping him, you know, off the street. That's sort of thing. 1118 T 903.14-26. 1119 T 1007.5-34. 1120 T 1035.35-1036.30. 1121 T 1036.37-1037.21. 1122 T 1005.23-26. -- 184 of 496 -- [2026] SADC 27 179 Dr Watson 945 The first report of the applicant suffering any psychiatric issues in any of the medical records is a note made by Dr Watson, General Practitioner, dated 16 April 2012, namely:1123 Victim of assault 2 yrs ago Facial reconstruction. Requests psychiatry review 946 Dr Watson subsequently referred the applicant to Dr Barry Rowe, Psychiatrist. In notes recorded by Dr Watson following a discussion with Dr Rowe on 27 April 2012, Dr Watson stated:1124 Sig issues, he has lost faith in humanity, ie the perpetrators of the injury, the onlookers, Dr D. David (he changed his testimony). Also possible brain injury. 947 Dr Watson was not called to give evidence. Dr Rowe 948 Dr Rowe is a Psychiatrist with a particular interest in assessing and managing persons with post-traumatic stress disorder.1125 949 Dr Rowe gave evidence that he first saw the applicant on 27 April 2012 following a referral from his general practitioner. The prime reason for the referral was said to be the applicant’s ongoing problems arising from the incident, with the secondary reason being for a review of his use of Ritalin.1126 He then saw the applicant on 18 occasions, with his final consultation being in June 2013. Thereafter, the applicant’s care was transferred to a community team, headed by Dr Lally.1127 950 Dr Rowe received a letter of referral from Dr Watson.1128 That letter confirmed the applicant’s past history of ADHD, and other physical conditions, including the fact of the incident. However, Dr Rowe did not have access to any other material (for example, letters from psychologists who had treated the applicant when he was at school, nor any records or material relating to his post incident treatment at the RAH), in order to independently confirm the history as reported to him by the applicant.1129 1123 Exhibit R42 at p 398. 1124 Ibid at p 398. 1125 T 1410.11-13. 1126 T 1411.2-11. 1127 T 1410.23-27; T 1411.22. 1128 Exhibit R42 at pp 580-581. 1129 T 1428.11-32. -- 185 of 496 -- [2026] SADC 27 180 951 Dr Rowe did not conclude his diagnosis with respect to the applicant until October 2012, at which time his condition had deteriorated. That diagnosis is set forth in a letter to Dr Watson dated 25 October 2012.1130 952 In his handwritten notes made on 27 April 2012, Dr Rowe recorded the applicant having described to him that he was pushed into a fence and when he turned around, he was hit in the face about 14 times with a champagne bottle by two people. He described his nose being shattered, and ‘every bone in my face was broken’.1131 953 When Dr Rowe first saw the applicant on 27 April 2012, the applicant described having ‘lost faith in other human beings ... it makes me depressed’.1132 This was reflected in what Dr Rowe discussed with Dr Watson by telephone after the initial examination.1133 Dr Rowe gave the following evidence:1134 The strong sense that I had for Mr Chattaway was that it was part of his general misanthropy that had developed since difficult experiences at school but compounded by the assault, well, what he experienced as an assault and the subsequent actions as he perceived them of Dr David when he rescinded his testimony apparently. All of those things led to Mr Chattaway having a strongly misanthropic view. My impression at the time in talking with Mr Chattaway about this is I think I gained the impression that my opinion was that that what was probably underlying many of these feelings that he reported, he felt like he didn't fit in with people because he can't trust them and people just care about themselves. 954 In Dr Rowe’s letter to Dr Watson dated 25 October 2012, he recorded:1135 Mr Chattaway told me that in December 2010 he had been assaulted during a friend’s 18th birthday party. He told me that several gate crashers punched him repeatedly in the face. He told me that when he was beaten to the ground his assailants then ‘bottled’ him (smashing a champagne bottle over his face repeatedly)...(my emphasis) 955 In that same letter, Dr Rowe described aspects of the applicant’s family history. He recorded the applicant as having described a family history of depression in an aunt (experienced after childbirth) and in one of his brothers.1136 956 He stated that the applicant’s major disability was a tendency to socialise less since the incident. He described this in the following terms:1137 This was partly an avoidance of anxiety in large groups, but also seemed to reflect his loss of ‘connectedness’ to other people. His lack of motivation, difficulties socialising, and difficulties concentrating, had also made it more difficult for him to study. 1130 Exhibit P55. 1131 Exhibit R42 at pp 624-625. 1132 Exhibit P55 at p 2. 1133 See [946] above. 1134 T 1434.38-1435.13. 1135 Exhibit P55 at p 2. 1136 Ibid at p 4. 1137 Ibid at p 3. -- 186 of 496 -- [2026] SADC 27 181 957 Dr Rowe gave evidence that the applicant’s initial presentation to him was consistent with a diagnosis of adjustment disorder with a mixture of depression and anxiety. He described the applicant’s symptoms as ‘mild depressive feelings and some anxiety, and the development of ‘mild social avoidance’ since the incident.1138 958 Importantly, on 17 May 2012, Dr Rowe conducted an assessment specifically structured to determine whether the applicant satisfied the diagnostic criteria for PTSD under DSM-IV-TR. 959 The applicant fulfilled criterion A for a diagnosis of PTSD, that is, the incident was a relevant stressor insofar as the applicant had reported he had experienced a threat of death (he reported a feeling that he was going to die) and had suffered a serious injury.1139 In cross-examination, Dr Rowe confirmed that it was the applicant’s perception of the threat of death, rather than an actual threat of death, which was relevant in terms of that criteria.1140 960 However, on direct questioning, the applicant denied having the ‘re- experiencing symptoms’ of PTSD, at any stage. This meant that at that time, he did not fulfill criterion B and such that a diagnosis of PTSD under DSM-IV-TR was precluded.1141 961 When the applicant was asked whether he suffered ‘recurrent and intrusive distressing recollections of the event’ (that is, the incident), he said that he did reflect upon it, but the images did not intrude on him. He said he did not suffer distress at exposure to events which symbolised or resembled an aspect of the trauma. He did not suffer flashbacks of the incident, or recurrent dreams about the incident. The applicant said, ‘No, I don’t dream about it’.1142 962 Dr Rowe had no reason not to accept what the applicant had told him in response to these specific questions.1143 963 The applicant did describe avoidance symptoms, relevant to criterion C. These included avoiding going to certain places or doing certain things because this induced anxiety. He did not feel comfortable in those situations.1144 964 Dr Rowe was not questioned about the adequacy of the assessment he conducted on 17 May 2012, nor was he questioned as to his level of confidence in his diagnosis. 1138 Ibid at p 6; T 1412.7-10. 1139 Ibid at p 637; T 1419.6-12. 1140 T 1431.5-22. 1141 Exhibit P55 at p 2; T 1414.26-1415.9; T 1429.17-1430.38; Exhibit R42 at p 638. 1142 Exhibit R42 at p 638. 1143 T 1419.16-17. 1144 T 1414.34-36. -- 187 of 496 -- [2026] SADC 27 182 965 Dr Rowe gave evidence that by August 2012, the applicant’s condition had worsened. He had started to develop ‘attenuated symptoms’ consistent, in hindsight, with the applicant being in the prodrome for schizophrenia.1145 This culminated in the applicant’s admission to the RAH in October 2012. Upon discharge, the applicant’s care was transferred back to Dr Rowe. However, by June 2013, it was clear to Dr Rowe that the primary diagnosis was schizophrenia. The applicant had a particularly severe form of the condition, and Dr Rowe considered he needed a community team approach to manage that condition.1146 966 Dr Rowe explained that the prodrome period can extend for up to five or six months, but that at least one month of that time must be ‘active phase symptoms’ of psychosis, delusions, hallucinations and/or disorganised thinking.1147 967 In cross-examination, Dr Rowe agreed that if the applicant was experiencing delusions of being persecuted by the Stonemasons while at TAFE in early 2012, this would be suggestive of him suffering attenuated psychotic symptoms at that earlier time, albeit there could have been other causes for those symptoms.1148 968 When asked during examination-in-chief if the applicant’s mental state had any direct effect on his ability to complete his TAFE course, Dr Rowe could only speak of his observations of the applicant from 27 April 2012. He said from what he had learned from his consultations with the applicant, that it was ‘a mixture of misanthropy and distrust of people and avoidance of people combined with what was probably at least episodic excessive use of alcohol’ which probably contributed to his decisions.1149 969 Dr Rowe was cross-examined as to whether these avoidance symptoms experienced by the applicant meant that he may have been in the prodrome period for the development of schizophrenia. Dr Rowe initially disagreed that that was the case.1150 Later in cross-examination, Dr Rowe was asked if the applicant’s reported symptoms of detachment from others, a sense of distance from others and loss of a sense of humour might also have been part of the negative symptoms of prodromal behaviour. He initially repeated his earlier opinion that he thought these symptoms were part of the applicant’s general misanthropy which had developed ‘since difficult experiences at school but compounded by the assault ... and the subsequent actions he perceived them of Dr David when he rescinded his testimony apparently.’1151 He felt he did not fit in with these people as he could not trust them.1152 1145 T 1416.1-13. 1146 T 1415.13-35. 1147 T 1433.11-15. 1148 T 1434.1-25. 1149 T 1421.32-1422.2. The applicant withdrew from the Surveying course he was undertaking at TAFE O’Halloran Hill on 24 April 2012; Exhibit R42 at p 606. 1150 T 1432.4-34; T 1433.21-26. 1151 T 1435.1-5. 1152 T 1435.11-13. -- 188 of 496 -- [2026] SADC 27 183 970 However, after being questioned further, he ultimately agreed that those symptoms could also be part of the prodrome.1153 971 Dr Rowe confirmed that the applicant had no belief that he had a psychotic illness up to the time of his first hospitalisation (October 2012). Thereafter, the applicant ‘generally denied it but that may not be completely true.’1154 972 He explained that a diagnosis of schizophrenia required six months of continuous attenuated symptoms. As at October 2012, as it was assumed the symptoms had started in August, that diagnostic criteria could not be fulfilled, meaning the correct diagnosis, at that time, was schizophreniform disorder. If the symptoms persisted thereafter for a period longer than six months (as occurred with the applicant) then that diagnosis becomes schizophrenia.1155 973 On 27 February 2013, Dr Rowe completed a Professional Support Statement seeking a remission or refund of tuition fees paid for or on behalf of the applicant to the Flinders University associated with a degree in Applied Geographical Information Systems. Dr Rowe confirmed that at that time, and in the latter part of 2012, the applicant was severely ill, which severely interfered with his capacity to study.1156 974 On 27 February 2013, Dr Rowe wrote a letter to Dr Tomasic, who had requested further information in the context of her being consulted by the applicant regarding some criminal charges.1157 975 On 28 March 2013, Dr Rowe completed a medical report for Centrelink associated with the applicant’s application for a Disability Support Pension.1158 In that report he described the applicant’s diagnosis as being a presumptive diagnosis of schizophrenia. His ‘current symptoms’ were recorded as being ‘Difficulties concentrating, social withdrawal’.1159 As to any underlying causes and contributing factors, he stated:1160 Suffered an assault (December 2010), involved a significant closed head injury, may be pertinent but that’s unproven. 976 On 15 July 2013, Dr Rowe wrote a letter to Ms Slattery at Inner South Community Mental Health.1161 In that letter, Dr Rowe described the applicant as lacking insight into his condition, which meant he had been quite difficult to 1153 T 1435.26-32. 1154 T 1437.6. 1155 T 1437.18-38. 1156 Exhibit R42 at p 595; T 1439.2-1440.6. 1157 Exhibit R42 at p 600. 1158 Exhibit R42 at pp 929-939. 1159 Ibid at p 933. 1160 Ibid at p 934, noting Dr Rowe gave evidence that he was not provided with any records relating to the injuries suffered by the applicant in the incident save for what was written in Dr Watson’s initial referral letter. He was therefore reliant on the history provided by the applicant. 1161 Exhibit P56. -- 189 of 496 -- [2026] SADC 27 184 engage in treatment. The applicant was usually brought by his parents to appointments with Dr Rowe and was refusing to take more than 6 mg daily of Paliperidone and would only take medication provided by his mother.1162 977 Dr Rowe’s notes of consultation with the applicant were in evidence.1163 Dr Rowe was not questioned about those notes which record him as having taken a history from the applicant, on more than one occasion, to the effect that he had previously consumed illicit drugs, namely marijuana.1164 Dr Jasoria 978 On 7 December 2012, Dr Vikas Jasoria, General Practitioner at the Arkaba Medical Centre, completed a Centrelink Medical Report – Disability Support Pension, on behalf of the applicant.1165 979 In that report, Dr Jasoria confirmed the applicant had been a patient of his since that date only (7 December 2012) but that he had been a patient at that clinic since December 2002. 1166 980 Relevantly, he described the condition which had a significant impact on the applicant’s ability to function as, ‘PTSD with previous psychotic episode’, the date of onset being 16 October 2012.1167 He described the underlying cause and contributing factors to that condition as, ‘Assault 2010 – traumatised since. Admitted 2012 October for psychosis for 3 weeks’.1168 The applicant’s current symptoms were described in the following terms:1169 Currently stable on medication Concentration impaired by medication Seeing psychologist regularly helping 981 Dr Jasoria gave evidence at trial as to the circumstances in which he wrote that report. During examination-in-chief, he agreed with a proposition put to him that everything in that report, other than errors he had crossed out, was accurate and from the history he obtained from the applicant on that day (7 December 2012).1170 He had seen the applicant thereafter on only one other occasion.1171 982 In cross-examination, Dr Jasoria agreed that the applicant had been under the care of Dr Angas at the clinic, and then Dr Watson. He agreed that when he saw 1162 Ibid at p 2. 1163 Exhibit R42 at pp 487-646. 1164 Ibid at pp 515, 516, 518, 521, 524, 528 and 564. 1165 Exhibit R42 at pp 921-928. 1166 Ibid at p 922. 1167 Ibid at p 923. 1168 Ibid at p 925. 1169 Ibid at p 924. 1170 T 1129.30-1130.6. 1171 T 1128.2-4; T 1130.10-12. -- 190 of 496 -- [2026] SADC 27 185 the applicant on 7 December 2012, he was aware he had just had an inpatient admission to the RAH following a psychotic episode. It was likely he had read the discharge summary from the RAH at or about that time (noting he had read it subsequently in any event).1172 983 Dr Jasoria agreed that the diagnosis recorded in that discharge summary was of ‘first episode psychosis likely schizophrenia and poor insight.’1173 He agreed that from what was in the discharge summary, he was aware, as at 7 December 2012, that the applicant was being treated by Dr Rowe and that Dr Rowe’s concern was of an emerging psychotic illness.1174 984 Dr Jasoria agreed that when he saw the applicant on that day, he had also familiarised himself with the notes of Dr Watson who had seen the applicant previously. He was therefore aware, from Dr Watson’s notes made on 27 November 2012, that the applicant did not accept the diagnosis of schizophrenia.1175 He was aware that Dr Watson had prescribed Paliperidone, being medication authorised under the PBS either for schizophrenia or bipolar affective disorder.1176 985 The primary purpose for Dr Jasoria’s attendance on the applicant was to complete the application for a Disability Support Pension. He also prescribed the applicant antibiotics and completed what was a mandatory mental health assessment. He did not prescribe any medications for the applicant’s mental health or otherwise alter his treatment plan. He did not conduct a diagnostic interview.1177 986 Dr Jasoria made notes of the consultation.1178 Relevantly, those notes include the following:1179 ... doesn’t like the diagnosis of schizophrenia worried about long term implications on job, joining army etc. he understands he has had a psychotic episode and was paranoid says was due to PTSD rather than schizophrenia the stigma gets to him more than anything else... feels the hospital team misconstrued what he said he went through an assault a few years ago 1172 T 1131.8-1133.1. 1173 T 1133.10-12, Exhibit R42 at p 435. 1174 T 1135.11-22. 1175 T 1136.13-1137.22. 1176 T 1137.23-1138.2. 1177 T 1138.21-1139.17; T 1145.4-9. 1178 Exhibit R42 at pp 395-396. 1179 Ibid. -- 191 of 496 -- [2026] SADC 27 186 since then always worried about things wants to learn martial arts so her (sic) can defend himself if necessary 987 Dr Jasoria gave evidence that the consultation was in excess of 30 minutes. During the consultation, he discussed with the applicant his recent admission to the RAH and that the applicant had said he did not like the diagnosis of schizophrenia. He agreed with a proposition that this seemed to be an important part of the consultation. He agreed that the applicant did not like that diagnosis and was concerned about its long-term implications. 1180 988 He agreed that the note he had made, namely, ‘says was due to PTSD’ reflected what the applicant had reported to him.1181 His notes also reflected that the applicant had told him that he felt that the hospital team had misconstrued what he had said about the details of his psychotic episode, during the admission.1182 He said that from what he had written in his notes, he had understood the applicant felt that the RAH did not interpret his symptomology properly, had not understood how he was feeling and that they had twisted his words to create something that was wrong for him. His notes reflected his opinion that the applicant had poor insight into his condition.1183 989 In cross-examination, it was suggested to Dr Jasoria that where he had written in the report that the applicant had ‘PTSD with paranoia’, this was simply him recording what the applicant had expressed to him, with the addition of the word ‘paranoia’. He said:1184 A. I'm not sure of that, it might be my opinion as well. Q. Well, you didn't conduct a diagnostic interview for PTSD, did you. A. Not formally, no, not a full comprehensive mental health diagnosis but a diagnosis is not made on one consultation. Q. No. A. Diagnosis can be made on multiple consultations with multiple different sets of documents and records that are present. Q. But this was your only consultation. A. This was my only consultation, yeah, but I could have a patient that has been seeing 15 other doctors and the day you come to see me is the day I see your blood tests results showing you have diabetes and I've diagnosed you with diabetes on that day. 1180 T 1140.2-1141.12. 1181 T 1142.12-15. 1182 T 1142.16-24. 1183 T 1143.33-1144.13, noting there is an error in the transcript at line 13 where the word ‘thing’ appears instead of ‘his condition’. 1184 T 1145.22-1147.10. -- 192 of 496 -- [2026] SADC 27 187 So, in general practice, diagnosis is made over a series of consultations often, so I can't really say either way. Q. PTSD is not revealed by a blood test is it. A. No, it's not. Q. So, we're talking about a different category of diagnosis. A. Correct. Q. And the fact is that you did not embark upon a diagnosis of the precise state of Mr Chattaway's mental health. A. I did not do a formal full mental health assessment for this patient on the day to diagnose him with PTSD based on one single consultation, no. But on reflection of the records, especially when he's been in hospital for four weeks, there would be elements that would suggest that diagnosis potentially does exist. Q. Well the record doesn't suggest that does it, the record of the Royal Adelaide Hospital is the diagnosis is psychosis most likely schizophrenia. A. That's correct, sorry, yes. Q. And indeed that's what you ultimately entered, if we look at reasons for contact 'psychosis likely schizophrenia'. A. Yeah, the records reflect that I probably thought he had schizophrenia. That's what I believe when I read through the medical record that suggests. 990 He agreed that he had not consulted with Dr Rowe, the treating Psychiatrist, for the purposes of completing the form.1185 This is notwithstanding that in his report, he ticked the box ‘yes’ in response to a question asking if the diagnosis (of PTSD) had been confirmed by further specialist opinion and further identified the treating Psychiatrist as Dr Barry Rowe.1186 991 In re-examination, Dr Jasoria was asked why he wrote ‘PTSD’ on the report, if that was not his diagnosis on the day. He said:1187 A. Diagnoses aren't exclusive, so there could be multiple different diagnoses going on, and plus one of the other things that can happen in this circumstance is if a patient is saying 'I definitely 100% do not have this' and I'm filling out a form in front of him and I write it down, it could potentially get that patient quite upset. Q. Yes. A. Yeah. So we have to always manage our relationship with patients, so sometimes we try and use words that do not upset them. But my medical record, which the patient 1185 T 1147.26-28. 1186 Exhibit R42 at p 923; Dr Rowe gave evidence that he thought this was ‘probably a misquote by Dr Jasoria’ and had no recollection of ever discussing the applicant with Dr Jasoria; T 1424.18-19; T 1424.33-34. 1187 T 1149.25-1150.11. -- 193 of 496 -- [2026] SADC 27 188 did not have privy to see, reflects that I thought in my head that actually repeated episodes of - I think what the words I used 'repeated episodes of paranoia' makes us state that he could have schizophrenia. Is that clear, does that make sense? Sorry, I could clarify that further if you need to? Q. Well I'm not sure if it goes far enough in terms of answering my question which was PTSD under your diagnosis on p.923 has - A. That's because I believed he had an element of that. Q. Yes. And that's why it's recorded in that fashion. A. Correct. But it may not be the only diagnosis. Q. No I accept that. A. That's what I was trying to say. CT head – 11 June 2012 992 Dr Rowe referred the applicant for a CT scan of the head undertaken at the Ashford Specialist Centre on 22 June 2012. The conclusion expressed by Dr Jason Ky was ‘Normal CT head’.1188 RAH - October 2012 (first psychiatric admission) 993 On 15 October 2012, the applicant’s parents brought him to the Emergency Department of the RAH in light of their concerns regarding a deterioration in his mental health. He was reportedly, running around the house naked, claiming to be a gorilla, and expressing other delusional beliefs.1189 The Emergency Assessment stated:1190 Background: - history of ADHD – diagnosed when he was in primary school, has been taking Ritalin on & off until 4 months ago - history of THC abuse – few days a week over the last one year; last had it 2 weeks ago - alcohol abuse – daily use, sometimes going up to 15 standard drinks; until 6 months ago - diagnosed with first episode psychosis in April 2012 (Dr barry Rowe); has not been regular with medications - was assaulted in 2010, PTSD symptoms since then 994 On 16 October 2012, Dr Jayakumar apparently took a history from the applicant in the following terms:1191 1188 Exhibit R42 at p 234. 1189 Ibid at p 306. 1190 Ibid. 1191 Ibid at p 321. -- 194 of 496 -- [2026] SADC 27 189 Physical assault when intoxicated years ago. Since then experiences ‘black outs’ when confronted with violent situations. THC weekly, began at 18 yo 995 An Inpatient Treatment Order (Level 1) was made on the date of admission, confirmed on 16 October 2012, on the basis that he had a mental illness and needed treatment either to protect himself or others from harm. The applicant lodged an appeal against that order on 16 October 2012, which was dismissed.1192 That order was extended, by the making of an Inpatient Treatment Order (Level 2), on 22 October 2012, to expire on 3 December 2012.1193 The reasons for making the order were stated as:1194 Paranoid Psychosis - 1st Episode. Acting upon delusions. Violent & threatening behaviour. 996 On 22 October 2012, the applicant underwent an MRI Brain, the results of which were reported as unremarkable.1195 997 On 24 October 2012, an EEG was undertaken, which was within normal limits.1196 998 The applicant was discharged home, to the care of his parents, on 19 November 2012, with follow up care to be provided by Dr Rowe and the Southern Community Mental Health Team. The Final Separation Summary lists the principal diagnosis as ‘First Episode Psychosis’, with a complication being ‘likely schizophrenia’.1197 999 Relevantly the Final Separation Summary states that the applicant’s admission was ‘in the context of what seemed to be 12 months of prodromal psychosis which had deteriorated in the two months prior to admission’. Reference was made to the applicant having recently been involved in ‘serious motor vehicle accident where the car needed to be written off’. The applicant had apparently admitted to past use of cannabis but denied recent use. He had poor insight into his condition.1198 1000 The Final Separation Summary states:1199 1192 Ibid at pp 193-196, 207 and 218-219. 1193 Ibid at pp 197-199. 1194 Ibid at p 199. 1195 Ibid at p 588. 1196 Ibid at p 270. 1197 Ibid at pp 292-293. 1198 Ibid. 1199 Ibid at p 293. -- 195 of 496 -- [2026] SADC 27 190 The presence of this gradual deterioration seemed to have a significant temporal relationship to a major stressor in Nicholas’ life, that of being the victim of a serious assault towards the end of 2010. As a result of this assault, he received multiple facial fractures and required surgical intervention for a complete facial reconstruction. More significantly, 12 months prior to this presentation, Rick’s (sic) claims were dismissed in court. His explanation of this was that his surgeon altered his evaluation of Rick’s (sic) injury’s (sic) immediately prior to the verdict, thus clearing Rick’s (sic) assailants of any consequences for the assault ... 1001 There is no reference in the Final Separation Summary to any diagnosis, or possible diagnosis, of PTSD, arising from the applicant’s presentation at the time of this admission. However, the Progress Notes contain some references to PTSD symptoms. For example, a progress note dated 17 October 2012 states:1200 Prior to seeing Dr Rowe, Nicholas described several PTSD sx incl flashbacks nightmares, anxiety & hypervigilance around other. Describes nightmares with different gruesome themes including stabbings & shootings etc since ~age 10. 1002 The case notes relating to this admission contain numerous references to the applicant providing a history of prior drug use and/or suspected ongoing drug use by the applicant. As to the former, in a progress note made on 17 October 2012, it is stated, ‘past THC use. Last use mid this yr (3-4/12 ago). Fr a period at 16-18 yrs of age. Up to an ounce a week up to 1 x/day. No other illicits’.1201 As to the latter, on 5 November 2012, a registered nurse, D Waxman, wrote, ‘Pt has been going out of ward and is believed to be using THC/illicit substances’.1202 This belief was based on the fact that there was a strong smell of THC in the applicant’s room and his refusal to provide a urine specimen, noting the applicant denied THC use at that time.1203 1003 Immediately prior to discharge, the applicant was reviewed by Dr Symon. In his notes of that review, Dr Symon described discussing a charge of property damage with the applicant in some detail. His notes record:1204 He’d stated he was heavily intoxicated on the night including 1 L bottle vodka, 10 beers, and a couple of shots. Nick described feelings of discomfort since his return from China especially around crowds. On the night of the property damage, Nick was around the same group of people who were present at the assault 2 yrs ago. This contributed Nick wanting to get heavily intoxicated. 1200 Ibid at p 324. 1201 Ibid at p 325. 1202 Ibid at p 297. 1203 Ibid at p 360. 1204 Ibid at p 385. -- 196 of 496 -- [2026] SADC 27 191 1004 Dr Symon recorded that the team was of the opinion that at the time of the property damage, the applicant was likely to have had a prodromal psychotic episode.1205 Southern Adelaide Local Health Network (Carramar Clinic) 1005 Extracts from the records held by the Southern Adelaide Local Health Network pertaining to their follow up care of the applicant were tendered as business records.1206 Those records include various notes of interactions between members of the team and the applicant, Dr Rowe and the applicant’s parents. 1006 A report prepared by a social worker, B Logan (the applicant’s care coordinator at Carramar) dated 28 November 2012 was also tendered as a business record.1207 In that report, Mr Logan outlined that the applicant was referred to the Carramar Community team by his mother in October 2012 following a significant deterioration in his mental health. However, the applicant’s condition was such that their only choice was to have him admitted to the RAH, resulting in his detention there for five weeks until 22 November 2012. 1007 Mr Logan outlined that the problems identified post discharge were mainly related to financial stressors relating to his independence from his parents, and legal issues secondary to the incident.1208 1008 On 3 December 2012, Mr Logan, made a record of a phone conversation he had with the applicant, wherein he described the applicant as being angry with his GP for saying he had schizophrenia and felt he was misunderstood and misinterpreted by hospital staff, insofar as they considered he had suffered delusions while hospitalised. The applicant was described as having ‘no insight’.1209 1009 However, on 7 December 2012, Mr Logan reported:1210 Nick remains insightful to his diagnosis of Schizophrenic illness and still believes it was due to the dope smoking, he is however still committed to continuing with his medication ... Early 2013 to October 2014 Applicant’s evidence 1010 The applicant gave evidence that after his first admission to hospital at the end of 2012, he required two further hospital admissions for mental health issues. He was unable to remember when those admissions were.1211 1205 Ibid at p 386. 1206 Ibid at pp 647-884. 1207 Ibid at pp 917-918. 1208 Ibid at p 918. 1209 Ibid at p 815. 1210 Ibid. 1211 T 1304.33-37. -- 197 of 496 -- [2026] SADC 27 192 1011 In cross-examination, the applicant agreed that he was admitted to the Flinders Medical Centre in September 2013 after assaulting a cyclist (the second admission). When asked if he agreed he had suffered a psychotic episode at that time, he said he had found it triggering, with his PTSD, to walk up and down that particular stretch of road as it was where a girl he had been dating had been hit by a car. He had claimed at the time that the cyclist had targeted him with vile, vitriolic abuse and maintained that claim.1212 1012 The applicant also agreed that he had been admitted to the Margaret Tobin Centre in October 2013 when he had suffered a psychotic episode (the third admission).1213 1013 The fourth time he was detained for mental health issues had been in the aftermath of his attack on his parents in October 2014. When asked if at that time he was having a delusion that his parents were replaced by aliens, he said:1214 It's baffling that I don't - I was unwell, I wasn't sleeping well. I was taking a medication called Olanzapine; it was giving me nightmares. To this day, when I get medication that - when I get medicated with Olanzapine, I become psychotic, like, I - Olanzapine causes me to become psychotic; it's a side effect of what it does to me. Makes me very mentally ill. 1014 He said he remembered the details of what had happened to his parents on that occasion.1215 1015 In cross-examination, the applicant was asked about a history recorded by Prof McFarlane in June 2018 that he had little memory of what he had done to his parents and wondered if what he did remember was his imagination making up a story based on what he had been told. He said:1216 I ... quite heavily medicated at that time, probably struggling to think. The one thing that's consistent during this case is how much medication I've been on; excessive amounts of medications, clouding my ability to think with professionals who are manipulating me while I'm heavily medicated. Mrs Chattaway’s evidence 1016 Mrs Chattaway gave evidence that after the applicant’s first admission to the RAH in October 2012, he returned home. She described his behaviour as bizarre. He became obsessed with exercising at the Aboriginal gym in the city and would grind down coins in the garage, which he gave to his friends as special jewels. She and her husband were his full-time carers and there was no prospect of him resuming study or working.1217 1212 T 1341.34-1342.17. 1213 T 1341.30-33. 1214 T 1342.35-1343.3. 1215 T 1373.18-24. 1216 T 1374.17-22. 1217 T 903.38-904.22. -- 198 of 496 -- [2026] SADC 27 193 1017 During 2013, his bizarre behaviour continued. He was generally quite paranoid and thought people were talking to him through the television. On one occasion, he dressed up in her kimono dressing gown and jewels and demanded she drive him to St Peter’s for a clan meeting. She had to stop on the way at a police station to seek their help.1218 There were two psychiatric admissions to the Flinders Medical Centre (Margaret Tobin Centre) when his condition worsened.1219 1018 From mid-2013 to 2014, they did receive some assistance from a senior community nurse, Jocelyn Douglass, who would visit their home two to three times a week. This was helpful but they did not notice any real change in the applicant’s condition. Later, during 2014, a male support worker who was closer to the applicant’s age would visit two to three times a week and undertake activities with him.1220 Mrs Chattaway said that the goal for the applicant was simply just to survive. He had lost his friends and become very isolated. He had also changed psychiatrists, with his care being transferred from Dr Rowe to Dr Lally at a Community Mental Health Centre in Marion.1221 1019 Mrs Chattaway gave evidence about the lead up to the event in October 2014, when she and her husband were attacked by the applicant. She had been away overseas but returned shortly prior to the event. Both Dr Lally and the applicant’s support worker, Slav, had also been away. When Slav returned, the applicant refused to see him. They thought about taking him to hospital but they did not want to lose his trust.1222 1020 On the night of the attack, Mrs Chattaway went to bed early. She woke up after hearing her husband’s voice. She rushed downstairs to find the applicant attacking her husband with a knife. She suffered 13 stab wounds and a punctured lung, broken ribs, a broken finger and a fracture to her spine. Both she and her husband were hospitalised for about a month.1223 1021 Thereafter the applicant was detained, initially in James Nash House. She and her husband had remained very supportive of him, visiting him over 1000 times, including in the UK. They had helped to facilitate his transfer to the UK because they were concerned that he was in physical danger while housed at Yatala Labour Prison.1224 1022 Mrs Chattaway expressed a desire for the applicant to return to Australia. She said that over the last two years, he had been saddened by the effect of the drugs 1218 T 904.29-905.23. 1219 T 904.24-28. 1220 T 906.33-908.17. 1221 T 906.12-23; T 908.18-909.17. 1222 T 909.18-910.2. 1223 T 910.8-15; T 911.3-24; T 914.6-11. 1224 T 910.21-23; T 911.33-913.5. -- 199 of 496 -- [2026] SADC 27 194 on his body, with substantial weight gain and chronic constipation. She described him as simply trying to survive.1225 Mr Chattaway’s evidence 1023 Mr Chattaway gave evidence that the ‘next big mental event’ for the applicant was when he was admitted to the C4 unit at the RAH in October 2012. He believed this admission was precipitated by the applicant thinking that he and his family were gorillas. He recalled the applicant remained at the RAH for six weeks, during which they visited him daily. Thereafter, the applicant returned home, but his demeanour was unchanged.1226 1024 In cross-examination, Mr Chattaway was questioned about what had occurred at a Family Meeting at the RAH on 23 October 2012 and in particular whether a comment in the notes, ‘Prior to admission ... Conflicts with brother William’, was something he (Mr Chattaway) had told RAH staff, during that meeting.1227 1025 Mr Chattaway confirmed that when the applicant became unwell, William decided to leave home. He had no recollection of the applicant ever having any serious conflicts with William. He said this may have been said by the applicant and was simply a symptom of him being unwell, noting that the applicant had also accused him (Mr Chattaway) of raping him.1228 1026 In 2013, the applicant was admitted to the Margaret Tobin Centre after suffering acute psychiatric episodes. Thereafter, although they did not want the applicant to continue to reside with them, there was no other viable alternative.1229 1027 After the second admission, the applicant received some physical support from a youth support worker, of approximately one and a half to two hours, three days a week.1230 He and his wife attended ‘mind courses’ to try to adjust to their new role as the applicant’s carers.1231 1028 From a financial perspective, the applicant’s youth allowance was being constantly cut off because he was missing scheduled job interviews. He was incapable of working but not approved for a Disability Support Pension, as he was not considered ill enough.1232 1225 T 913.8-21. 1226 T 1008.8-34. 1227 Exhibit R 42 at p 342. 1228 T 1047.17-1048.27. Noting it is possible that the applicant was at this meeting, T 1067.31-1068.10; Exhibit R42 at p 343. 1229 T 1008.35-1010.14. 1230 T 1011.3-21. 1231 T 1012.11-20. 1232 T 1010.15-1011.2. -- 200 of 496 -- [2026] SADC 27 195 1029 Mr Chattaway gave evidence about the event that occurred in October 2014, when the applicant attacked him and Mrs Chattaway. 1030 He said that in the four or five days prior to this event, the applicant did not want to see anyone (including his youth support worker, Slav) and had stopped talking entirely. Mrs Chattaway had just returned from spending a period overseas. They were keen for the applicant to be admitted to hospital again. The applicant was vehemently opposed to that idea and they were concerned he would react violently, jeopardising his long-term relationship with psychiatric authorities.1233 1031 During the attack, Mr Chattaway sustained 33 stab wounds including a penetrating injury to his left eye, where he was stabbed with a barbecue fork. He suffered nerve damage to his left hand, for which he still requires medication. He was in intensive care for two weeks and in hospital for a total period of six weeks.1234 1032 In December 2016, the applicant was found mentally incompetent with respect to the criminal charges he faced arising from the attack. Since the attack, the applicant had been housed either in James Nash House or in Yatala G Division, where he was housed for about two years. Mr Chattaway gave evidence that one of the reasons the applicant sought to be transferred to the UK was because they feared he would not leave G Division alive.1235 1033 They hoped to bring the applicant back to Australia, as he was neither happy nor comfortable in the UK.1236 Flinders Medical Centre - July 2013 (second psychiatric admission) 1034 The applicant was admitted to the Flinders Medical Centre on 13 July 2013 and remained an inpatient until he was discharged home on 2 August 2013, with his follow up to be managed by the Carramar team. 1035 The Final Separation Summary records that the applicant was brought by police to the Flinders Medical Centre. His brother had contacted the police, fearing for his family’s safety in light of the applicant’s increased aggression. The Final Separation Summary states:1237 He had a history of THC use but denied any THC use in months. Nicholas refused to give a urine sample to test drugs. It was difficult to obtain further history as Nicholas was not engaging with staff, but nil physical complaints. 1036 The Principal Diagnosis was recorded as schizophrenia. The applicant was noted to have relapsed in the context of only partial compliance with his 1233 T 1012.30 -1013.25. 1234 T 1013.29-1014.8. 1235 T 1015.14-1016.5. 1236 T 1015.27-31. 1237 Exhibit R42 at pp 440-442. -- 201 of 496 -- [2026] SADC 27 196 medication. No secondary diagnoses were listed. There is no reference in the document to PTSD or PTSD symptoms. Margaret Tobin Centre - September 2013 (third psychiatric admission) 1037 On 5 September 2013, the applicant was admitted to the Margaret Tobin Centre suffering from psychosis following transfer from the Adelaide City Watch House. He had been detained by SAPOL on 3 September 2013 after pushing an elderly man off his bicycle, apparently in response to auditory hallucinations.1238 1038 Of note is a reference in both the SA Ambulance Patient Report Form dated 3 September 2013 and a RAH Nursing Observation Note of the same date, that his past medical history included schizophrenia and THC use.1239 1039 The applicant was angry at the suggestion that his behaviour was due to his schizophrenia (being thought likely secondary to his noncompliance with medication in light of his continued rejection of the diagnosis of schizophrenia).1240 1040 Both the applicant and his parents were said to be vehemently opposed to the recommendation of the treatment team that the applicant’s medication be administered in depot form under a Community Treatment Order to secure compliance. Instead, his parents promised to administer the applicant’s medication daily at home. The applicant agreed to take his medication and promised to engage with a support worker and the community mental health team. As such, the applicant was discharged home on 11 October 2013, into the care of his parents, but with that ongoing support.1241 Southern Adelaide Local Health Network (Carramar Clinic) 1041 In a letter dated 26 December 2013 from Ms Jocelyn Douglass, Associate Clinical Services Coordinator to Dr Ronnie Koh of the Arkaba Medical Centre, Ms Douglass described the applicant’s engagement with the service as having ‘improved with reduced hostility, disdain and grandiosity but he remains symptomatic with bizarre and at times inappropriate language and behaviour.’1242 1042 He continued to refute the diagnosis of schizophrenia and denied any mental illness. She stated he had three court cases pending, the two most recent involving aggression, with the latest incident resulting in a tooth being knocked out. She opined:1243 I think Nick would find it extremely difficult currently to gain or keep any kind of paid employment due to his residual positive symptomatology and his poor concentration and 1238 Ibid at pp 659-665 and 678-679. 1239 Ibid at pp 662 and 681-682. 1240 Ibid at p 444. 1241 Ibid at p 445. 1242 Ibid at p 919. 1243 Ibid at p 920. -- 202 of 496 -- [2026] SADC 27 197 organizational skills. He could potentially pose a risk to others as he can react aggressively if he perceives that he is being abused or threatened. Other incidents/accidents – 2012-2014 Incident outside Government House, Adelaide – 11 August 2012 1043 On Saturday 11 August 2012 at about 11:00pm, the applicant was arrested for multiple offences including property damage, disorderly behaviour, resisting and hindering police and refusing to provide his name and address to police. The arrest followed an alleged incident where the accused jumped on the roof of a security vehicle parked on King William Road, adjacent to Government House, causing dents in the roof of the vehicle. When police arrived, the applicant pushed past them and attempted to run from the scene. He was subsequently arrested and conveyed to the Adelaide City Watch House. He was observed to be moderately intoxicated at the time.1244 Motor Vehicle Accident – 28 September 2012 1044 On 28 September 2012 at 9:12pm, the applicant presented to the Emergency Department of the RAH, at which time he reported having been the driver of a vehicle which left the road at approximately 45 kph and collided with a tree on the driver’s side of that vehicle. The airbag had deployed. Although there was a possible transient loss of consciousness, he was able to get out of the vehicle unaided and to mobilise freely. The applicant was complaining of dizziness but had no obvious injury to the head and no laceration or bleeding, nor did he report any headache or nausea. He recorded a GCS of 15/15. He had minor abrasions to his right arm. The applicant was discharged into the care of his family with post head injury advice.1245 1045 During the applicant’s admission to the RAH in October 2012, arrangements were made for the applicant to undergo an MRI to rule out any organic abnormality in the context of the applicant having been involved in that motor vehicle accident and of him having suffered a recent ‘head injury MVA head through dashboard’. In this respect, it was noted that an earlier CT head undertaken after the incident had shown ‘no acute intracranial abnormality’.1246 The MRI brain undertaken on 22 October 2012 was reported as being unremarkable.1247 Fall -1 October 2012 1046 On 1 October 2012 at 6:07pm, the applicant presented to the Emergency Department of the RAH having suffered a laceration to the left ear following a fall, when he slipped on a wet floor. The diagnosis was concussion, with no loss of 1244 Ibid at pp 953-958. 1245 Exhibit R42 at p 243. Relevantly, in the Nursing Observation Chart completed at 10:50pm that night, under the heading, ‘Past Medical History’, the nurse has written, ‘nil’; Ibid at p 266. 1246 Ibid at p 223. 1247 Ibid at p 167. -- 203 of 496 -- [2026] SADC 27 198 consciousness. The applicant recorded a GCS of 15/15 and was discharged ‘with home care advice on closed head injury’.1248 Assault – 14/15 November 2013 1047 The applicant consulted Dr Ronnie Koh, General Practitioner, at the Arkaba Medical Centre on Friday 15 November 2013, at which time he reported having been assaulted on the face ‘yesterday at 0300 hrs at Hindley St’. The applicant was noted to be ‘coping well’ and was seeking Diazepam to assist with his anxiety.1249 Motor Vehicle Accident - November 2013 1048 The applicant consulted Dr Jasoria at the Arkaba Medical Centre on 19 November 2013, at which time he reported having been a pedestrian, when he was hit by a car pulling out of a driveway. He was hit from the left side and fell on his right side. Initial fears that he may have broken his left ankle proved unfounded. He was walking with a slight limp and had also suffered grazes to his right elbow and left knee.1250 Fall – 14 March 2014 1049 On 14 March 2014, the applicant was brought to see Dr Koh at the Arkaba Medical Centre, after he fainted and fell on the concrete, hitting his face. Upon review, no neurological deficit was noted, however the applicant required dental review, as his front teeth were knocked during the fall.1251 Independent medical evidence Dr Kutlaca 1050 Dr Kutlaca is a Psychiatrist who examined the applicant for medico-legal purposes at the request of his solicitors on two separate occasions. He first saw the applicant on 15 February 2017 at James Nash House, at which time he spent two hours with the applicant. He then saw the applicant at Yatala Labour Prison on 2 March 2021, at which time he spent an hour with him. He did not see the applicant thereafter. 1051 Dr Kutlaca was called to give evidence as part of the applicant’s case. His three reports dated 7 March 2017,1252 2 March 20211253 and 16 November 2021,1254 were tendered, as were letters of instruction sent to Dr Kutlaca dated 12 September 2014 and 3 February 2017.1255 As is apparent from the letters of instruction, Dr Kutlaca’s opinion was sought expressly on any connection between the incident 1248 Ibid at p 269. 1249 Ibid at pp 394-395. 1250 Ibid. 1251 Ibid at p 393. 1252 Exhibit P43. 1253 Exhibit P44. 1254 Exhibit P45. 1255 Exhibits R46 and R47. -- 204 of 496 -- [2026] SADC 27 199 and the applicant’s psychiatric condition. Specifically, his opinion was sought on the following issues:1256 1. whether the applicant’s schizophrenia was caused by the injuries he sustained from the incident; or 2. whether the applicant had developed PTSD as a result of the incident and if that PTSD had caused the onset of schizophrenia; or1257 3. whether the medical treatment the applicant received as a result of the incident could have caused his schizophrenia; or 4. whether the applicant was likely to develop schizophrenia if the incident had not occurred and if so; whether the incident was a ‘seminal event; in the onset of the schizophrenia or if his vulnerability to schizophrenia ‘became manifest because of the stress and its resultant neurobiological progression due to the onset of PTSD’. 1052 Dr Kutlaca gave evidence that prior to first examining the applicant, he had met with the applicant’s parents to obtain a history from them. In forming his opinions, he had also relied on the materials supplied to him with the two letters of instruction, and a report from a Psychologist, Dr Boub (which was not in evidence).1258 1053 In his first report dated 7 March 2017, Dr Kutlaca outlined matters pertaining to the applicant’s personal, family and medical history, based on information provided by the applicant and, presumably, by his parents. He recorded that the ‘family psychiatric and organic medical history was presented as negative to direct questioning’.1259 He also recorded a history, provided by the applicant, that he had never attended a psychiatrist, psychologist or counsellor before 2010 and a denial of illicit substance use.1260 1054 Dr Kutlaca apparently obtained a history from the applicant about the circumstances of the incident, outlined in the following terms:1261 My memory of the assault is very clear. I went to take a piss behind a bush. There, two boys, Patrick Dunn-Lawless and Jack Lloyd pushed me into the fence “within the property”. I walked out of the bush, out in the open in the backyard. Jack Lloyd bottled me, broke my nose. He was standing over me with the bottle. When he broke my nose I was unconscious for about 10 seconds on the ground. When I woke up he had the bottle in his hand ready to hit me again. I jumped up. He went for a blow. I put my arm over his arm, 1256 Exhibit R47 at p 1. 1257 Noting that there is no specific reference to PTSD in the first letter of instruction dated 12 September 2014. 1258 The documents listed as enclosures 2 and 6 in Exhibit R46, relied upon by Dr Kutlaca in expressing his opinions, were not in evidence, nor were any of the documents said to be enclosures to Exhibit R47. 1259 Exhibit P43 at p 3, being contrary to the family history as recorded by Dr Rowe (see [955] herein). 1260 Ibid; T 1087.5-28. 1261 Ibid at pp 4-5. -- 205 of 496 -- [2026] SADC 27 200 the arm with the bottle, started pushing him with my right arm to his face. I probably got about three hits in. As soon as I got those hits in, his friend got a long neck beer bottle off the table. He started beating me in the head … it was here (indicating the upper right side of his face). Jack Lloyd was about to get out from under my grip. He was still holding the champagne bottle. They started battering me. I could no longer defend myself, put my hands over my face. I reckon (17 blows). I passed out. I don’t know how long I was unconscious. We estimated about 10 minutes. 1055 He was (apparently) told, erroneously, that following the incident, the applicant was admitted to the RAH where he had been an inpatient for 10 days, initially in the Intensive Care Unit and was then transferred to the Calvary Hospital, where he remained an inpatient for two weeks.1262 1056 Dr Kutlaca recorded receiving a history from the applicant that when he was in China, he had difficulties concentrating when studying and started becoming paranoid and emotional. He described experiencing traumatic dreams linked to the incident and flashbacks of the incident every couple of days. The dreams and flashbacks had continued, and the paranoia worsened significantly, upon return to Australia.1263 1057 Dr Kutlaca described the applicant as being pleasant and co-operative during the examination on 15 February 2017. He kept appropriate eye contact and made no inappropriate comments. He was composed and not obviously psychotic.1264 1058 When addressing any possible connection between the incident and the applicant’s subsequent development of schizophrenia, Dr Kutlaca described the applicant as having sustained both organic sequelae and PTSD as a result of the incident, with symptoms from each persisting. Relevantly, he stated:1265 The cause of schizophrenia is unknown. Such indicates that factors in individual cases may be relevant as to require consideration. The formal family psychiatric history was stated to be negative such as to rule out a genetic influence. There was a stated negative illicit drug history, although I did not occasional references to marijuana in the supplied reports. DSM-5 indicates that posttraumatic stress disorder is one of several psychiatric disorders requiring differentiation from schizophrenia. Therein, furthermore, there appeared to be insufficient support for posttraumatic stress disorder causing or precipitating schizophrenia. 1059 As to whether the incident had precipitated or brought forward the onset of the applicant’s schizophrenia, Dr Kutlaca opined:1266 ... It is accepted that schizophrenia may have a gradual or, at times, relatively sudden onset, with the latter linked to stressors/Life Events. 1262 Ibid at p 5. 1263 Ibid at pp 6-7. 1264 Ibid at pp 8–9. 1265 Ibid at p 10. 1266 Ibid at pp 10-11. -- 206 of 496 -- [2026] SADC 27 201 On this basis, the assault could possibly have precipitated Mr Chattaway’s schizophrenia. It requires mention, however, that the occurrence of the subject incident of 5 December 2010 and the diagnosis of schizophrenia in 2012 would likely militate against a precipitating relationship. In addition, all other relevant Life Events prior to and subsequent the subject assault...would also require consideration in terms of causation... (my emphasis) 1060 In response to the specific questions posed of him, Dr Kutlaca opined:1267 1. he was unable to state with requisite confidence that the incident had caused the applicant to develop schizophrenia; 2. there was ‘little doubt’ the applicant had developed PTSD as a result of the incident; 3. the cause of the applicant’s schizophrenia was unknown and unlikely to have arisen from the medical treatment he received after the incident; 4. on balance, the applicant would have developed schizophrenia if the incident did not occur; and 5. the incident was not the type of incident likely to significantly predispose the applicant to schizophrenia. 1061 In preparation for his second report dated 2 March 2021, Dr Kutlaca was provided with copies of the reports of Prof McFarlane dated 28 September 2019 and Prof Nielssen dated 15 May 2021.1268 Having re-examined the applicant and considered this and other additional material, his diagnostic formulation as previously outlined remained unchanged.1269 1062 Dr Kutlaca’s third report dated 16 November 2021 was sought to address the applicant’s capacity to provide instructions to his solicitors. Dr Kutlaca confirmed that as at 2 March 2021, when he had last seen the applicant, the applicant had such capacity. Dr Kutlaca was also asked to comment on the applicant’s memory and whether, in his view, he would be able to give evidence reliably. Dr Kutlaca stated:1270 Whilst Mr Chattaway’s cognition is likely suboptimal secondary to his psychopathology, possibly also from professional intervention for the purposes, he was able to provide a detailed history of his circumstances and treatment at the time of his review on 2 March 2021; the history from him appeared to be reasonably accurate. His initial independent medical evaluation took place on 7 March 2017 and he was able to provide an account of the subject incident on that occasion. On these bases, it is my opinion he should be able to give evidence reliably. (my emphasis) 1063 In cross-examination, Dr Kutlaca was alerted to the fact that contrary to the history he had reported, the applicant had been seen by a Psychologist, 1267 Ibid at pp 11-12. 1268 See discussion of these reports below. 1269 Exhibit P44 at p 5. 1270 Exhibit P45 at p 1. -- 207 of 496 -- [2026] SADC 27 202 Ms Hannell, in 2003, who had referred to the applicant’s behavioural issues (aggression, thoughtlessness) and difficulties concentrating and by another Psychologist, Ms Lindy Petersen for potential ADHD. He confirmed that this level of ‘childhood issues’ had not been reported to him.1271 1064 Dr Kutlaca was also taken to various school reports which referred to the applicant acting aggressively and inappropriately at times. He agreed that what was contained therein did not reflect the history he had received about the applicant’s behaviour during his schooling and that the reports demonstrated the applicant had significant difficulties controlling his behaviour ‘and some rebelliousness, defiance.’1272 He agreed the school reports also demonstrated that the applicant was not performing to his abilities, academically, and to some extent, socially.1273 1065 When asked if this additional personal history suggested the applicant had a vulnerability to schizophrenia, Dr Kutlaca’s response was ‘[p]erhaps.’1274 He then gave the following evidence:1275 A. … I'm of the view that the cause of schizophrenia is unknown and perhaps this will assist, that once there is an established diagnosis of schizophrenia, that the process of investigation is retrospective, not prospective. There's no tests that would suggest to me or to any expert that one can predict who will or who won't develop schizophrenia with any sort of scientific rigidity. Q. And if one were to do that retrospective search and one had the detail of this kind of history of the development of Mr Chattaway, one might see the likelihood of schizophrenia emerging. A. In retrospect? Q. Yes. A. Potentially, yes. Q. You received a history of no prior drug use, I think. A. Yes. Q. If the history was in fact a history that from age 16, so about two years before the fight, Mr Chattaway was smoking marijuana starting at age 16 and smoking up to an ounce a week up to 10 days a day. Would that have been important in the retrospective assessment. A. Yes. Q. And what would that indicate to you. 1271 T 1091.20-22. 1272 T 1095.23-25. 1273 T 1097.6-15. 1274 T 1098.7-10. 1275 T 1099.3-29. -- 208 of 496 -- [2026] SADC 27 203 A. There's this old-fashioned notion of a quote unquote 'vulnerable brain', which in terms of heavy marijuana use, may increase the likelihood of schizophrenia. 1066 As to his statement in his first report that there was ‘little doubt’ that the applicant had developed PTSD as a result of the incident, Dr Kutlaca gave evidence that he was instructed that the applicant had a confirmed diagnosis of PTSD (and psychosis) from Dr Jasoria.1276 He had also relied on the history of symptomology as described by the applicant when he saw him in 2017, as sufficient to form the basis for a diagnosis of PTSD, being a diagnosis he had made in 2017. That included the applicant’s description of being paranoid and having flashbacks of the incident and disturbing dreams.1277 1067 Dr Kutlaca agreed that the applicant’s symptoms of paranoia and delusional disorder ‘could’ have been part of the prodrome of schizophrenia, but not the reported flashbacks and disturbing dreams.1278 He acknowledged that his diagnosis of PTSD depended on the reliability of the history provided to him by the applicant.1279 1068 Dr Kutlaca agreed in cross-examination that periods of psychosis could affect memory. He acknowledged that there were a number of significant life events experienced by the applicant between 2012 and when he saw him in 2017, relevant to the development of his mental health during that period (ie episodes of psychosis requiring hospitalisation, his attempted murder of his parents, his time in hospital and in gaol).1280 He did not agree that such events were likely to have impacted the applicant’s ability, in 2017, to recall his state of mind in 2012, although he agreed this was possible.1281 1069 As to whether the applicant’s assault on his parents could have caused the PTSD, Dr Kutlaca said that he did not know, and that the applicant was acutely psychotic at that time.1282 He agreed the applicant had a history of psychosis, including periods of severe psychosis. He acknowledged that this could ‘potentially’ affect the applicant’s memory of his mental state in the distant past, albeit he thought the applicant gave ‘a reasonable account’.1283 1070 Dr Kutlaca acknowledged that this latter comment was based on the fact that the applicant appeared to be able to give a coherent answer to the questions posed of him during his examinations, in the sense that the answer bore some relationship to the question. However, he agreed that he could not know whether those answers 1276 T 1103.9-25; Exhibit R47. 1277 T 1107.1-24; T 1108.20-29. 1278 T 1108.30-1109.5. 1279 T 1110.3-16. 1280 T 1111.5-32. 1281 T 1111.33-36. 1282 T 1111.38-1112.6. 1283 T 1113.8-31. -- 209 of 496 -- [2026] SADC 27 204 were true or false, including the truthfulness of what he described as the applicant’s ‘lucid account’ of the incident.1284 1071 In re-examination, Dr Kutlaca agreed that the fact the applicant had suffered psychosis and schizophrenia since the incident did not necessarily affect his memory now of what had occurred in the incident (or before the incident). He added that this of course depended on the applicant’s mental state at the time he recounted that history and specifically on whether, at the relevant time, the applicant was obviously psychotic. He again described the applicant as a ‘reasonable historian’.1285 1072 In cross-examination, Dr Kutlaca confirmed that the opinion he expressed in his third report, namely that as at March 2021 the applicant was fit to provide instructions and to give evidence at trial, was based on the fact that the applicant did not appear overtly psychotic at that time and was able to give answers which bore a relationship to the questions asked of him.1286 1073 Dr Kutlaca confirmed that his view was that: 1287 1. the incident had not caused the applicant’s schizophrenia; 2. the applicant’s pre-incident history might provide some more understanding as to the cause of him developing schizophrenia (albeit his behavioural and other difficulties could be explained for reasons other than the fact he was developing schizophrenia, for example, ADHD, dyslexia); and 3. that history might show the applicant was vulnerable to developing schizophrenia. 1074 Importantly, Dr Kutlaca gave the following evidence:1288 Q. As to PTSD, as I understand your report, you yourself do not favour the proposition of PTSD causing schizophrenia. A. I do not. Q. And as I understand it, that's because that's not a hypothesis that has been scientifically established to the necessary degree at this stage. A. It is true for the reasons you gave, but in my view and in my experience, one is a stress disorder as in PTSD, whereas schizophrenia is something altogether otherwise with genetic, potential genetic neurodegenerative causes either commencing in early childhood. 1284 T 1113.36-1115.5. 1285 T 1122.16-35. 1286 T 1115.25-1116.13. 1287 T 1116.14-26; T 1117.16-118.30. 1288 T 1116.27-1117.15. -- 210 of 496 -- [2026] SADC 27 205 Q. They're two distinct conditions. A. In my view. Q. In your view. And as your understand your peers, there is not a sufficient scientific basis for a connection between them. A. Correct. +RE-EXAMINATION BY MR KERIN Q. Just on that last point, doctor, my friend put a proposition to you. Do you still allow for the fact that there is a version of science out there that says it is possible that - A. Not to be impolite, but anything is possible. Q. It's just that you don't adhere to that version of scientific thought. A. I do not. Prof McFarlane Introduction 1075 Prof McFarlane is a psychiatrist who was retained by the applicant’s solicitors specifically to address whether there was a nexus between the incident and the applicant’s subsequent development of schizophrenia. 1076 Prof McFarlane examined the applicant on two separate occasions. The first assessment was on 14 June 2018 conducted at James Nash House over two hours and 15 minutes. The second assessment occurred on 21 January 2021, by which time the applicant was detained in the Yatala Prison. That interview lasted for one hour and 30 minutes. 1077 Prof McFarlane was called to give evidence by the applicant. His three reports dated 28 September 2018,1289 3 February 20211290 and 5 September 2023,1291 were tendered as exhibits, as were various letters of instruction and other materials referred to by him in his reports and in his evidence.1292 His impressive curriculum vitae was also tendered.1293 1289 Exhibit P59. 1290 Exhibit P63. 1291 Exhibit P65. 1292 Various letters of instruction were tendered as Exhibits P60, P61, P62, P64 and P66. There were other letters identified as being in existence, namely a letter of instruction dated 18 August 2020 and a second letter of instruction dated 29 August 2023, which were never provided by the applicant to the court, notwithstanding requests to do so. In addition, a document entitled ‘Documents for Professor Sandy McFarlane’ which apparently listed those documents that accompanied a letter of instruction to him dated 23 February 2018, was not provided to the court. 1293 Exhibit P58. -- 211 of 496 -- [2026] SADC 27 206 First report – 28 September 2018 1078 In preparing his first report, Prof McFarlane relied on the various letters of instruction, the history provided to him by the applicant and the various materials that were provided to him, many of which were not in evidence.1294 1079 Prof McFarlane gave evidence that the ‘history’ recorded in his report was based on a full freehand text of what the applicant had told him, such that it was, in effect, a direct transcript of what the applicant had said during the interview.1295 The applicant had stated that he was not experiencing any hallucinations and appeared to have insight into his condition.1296 He did not appear to be drowsy and was attentive to the questions asked of him.1297 1080 Prof McFarlane enquired about the applicant’s background history. He recorded that the applicant told him that he had no developmental difficulties and described himself as ‘a good kid’. He had found the move to Australia difficult at first but he made a close-knit group of friends at St Peter’s. He used to be ‘outgoing, polite, affable and gregarious’ with a positive attitude and enjoyed his friends. He denied ever having used illicit substances or of having been a problem drinker. The family had no history of mental illness, depression or anxiety.1298 1081 There is no reference in the report to the applicant suffering any behavioural issues or of being referred to psychologists during his school years. 1082 Prof McFarlane recorded the following history from the applicant as to the circumstances of the incident:1299 He was attending a friends’ 18th birthday party when, Owen, the host asked him to deal with some people who were gate crashing. Mr Chattaway was intoxicated at the time. After he had confronted the gate crashers he was then pushed as he walked away to urinate. He came back to the group and was hit again. He was knocked to the ground and lost consciousness for several seconds. He then jumped up and pushed the assailant, Jack Lloyd, away. Jack Lloyd’s friend, Patrick Dunn-Lawless then hit him in the face with a beer bottle. As he covered his face with his hands to protect himself he was hit again by Jack Lloyd, and then again to the back of his head. The assailants dropped their bottles and ran away when they saw blood coming from his injuries. 1083 The applicant described both spending a short period in hospital thereafter and the surgery undertaken by Prof David. He said that he was unable to recognise himself when he looked in the mirror because of the deformities caused by his injuries. He lost confidence being in groups and did not want to go out with friends, 1294 Noting that those parts of Prof McFarlane’s report wherein he discusses and summarises materials not before the court were excluded from the evidence. 1295 T 1527.1-12. 1296 T 1541.2-9; T 1542.10-22. 1297 T 1543.22-23. 1298 Exhibit P59 at pp 5-6. 1299 Ibid at p 4. -- 212 of 496 -- [2026] SADC 27 207 preferring to stay at home. He could not remember if he had nightmares but said he struggled to sleep, in part due to pain. 1084 The applicant told Prof McFarlane that he did not do anything to prepare for his trip to China, as he was angry and the assault was constantly on his mind. While in China, his concentration was terrible and he could not study, resulting in him dropping out after the first month. He described having no confidence when talking to teachers and struggling to build relationships with them. He had spent a period of time homeless when he was unable to pay the rent and became distrustful and overwhelmed being with people. He had made some friends but was generally withdrawn and sad. He could not control his emotions. He became paranoid and was constantly over analysing things.1300 1085 The applicant also reportedly described experiencing several incidents when he was in China where he was ‘jumped’ including an occasion when he was in a club when seven men set on him, however he was able to fight them off without suffering any injury. 1086 The applicant told Prof McFarlane that the psychosis began when he was in China. Following his return from China, he consulted Dr Rowe. He described being psychotic at the time and thought that people were following him and were going to assault him. He started to think that he was Jesus and that the incident had been part of a plot to kill him. The images of the incident were playing on his mind and he would have nightmares, waking at night screaming.1301 1087 As to his current symptoms (that is, as at June 2018), the applicant told Prof McFarlane that he was much improved but still got a bit of PTSD with flashbacks about the incident and the attack on his parents. 1088 As to his current memory of the incident, the applicant described being hit repeatedly in the face with a bottle and feeling as though he was going to die. Prof McFarlane wrote:1302 He describes it as being like a video, accompanied with the sensation of being hit, with the initial feeling of numbness followed by pain. He had nightmares about this incident regularly, which also include being stabbed. 1089 He described suffering nightmares about once a week and of being unable to watch any violence on television when he first entered James Nash House, as he would panic and need to leave the room. He avoided watching horror movies. Relevantly he stated that these triggers had emerged after the assault on his parents.1303 1300 Ibid at p 4. 1301 Ibid at p 5. 1302 Exhibit P59 at pp 2-3. 1303 Ibid at p 3. -- 213 of 496 -- [2026] SADC 27 208 1090 The applicant described having been assaulted numerous times while in James Nash House, such that he was constantly vigilant, did not trust people and now avoided making any friendships. He denied ever having had auditory or visual hallucinations. 1091 Based on the history described to him, Prof McFarlane expressed the opinion that the applicant had developed an acute PTSD following the incident, which he continued to suffer. In 2011 he had progressively developed a paranoid psychosis, likely to have been a delusional disorder. He was presently suffering schizophrenia characterised by ‘a range of delusional beliefs of both a paranoid and grandiose nature’.1304 1092 Prof McFarlane outlined in his report the basis for his diagnosis of PTSD by reference to the relevant criteria. The incident was an event that fulfilled criterion A. 1093 As to criterion B, Prof McFarlane accepted the applicant’s evidence that the incident had been persistently experienced by him in several ways. This included recurrent and involuntary intrusive memories of the incident, the sensation of being hit and the pain he felt, nightmares relating specifically to him being assaulted and significant distress on exposure to traumatic reminders, including marked physiological reactivity. By way of example, he referred to the applicant’s inability to remain in the room if violent movies were on television.1305 1094 The applicant had described avoidance symptoms as per criterion C. These included behavioural avoidance insofar as he avoided going out into public places in the immediate aftermath of the incident. His mood and cognition had been adversely affected with an increasing fear about the dangerousness of the world, persistent and negative trauma-related emotions of fear and distrust and a loss of interest in what were previously pleasurable activities. He was isolated and detached from others and felt an enduring sense of sadness. 1095 He had experienced trauma-related alterations in arousal and reactivity, becoming hypervigilant of threats within his environment, had difficulties concentrating and had major difficulties with insomnia in the months following the incident. 1096 Prof McFarlane expressed the opinion that as a result of the incident and the subsequent development of PTSD, the applicant was rendered at a substantially increased risk of developing a psychotic disorder such as schizophrenia and that in the absence of the assault and its psychological sequalae, there was a substantially lower probability of him having developed this condition.1306 1304 Ibid at pp 8-9. 1305 Ibid at p 8. 1306 Exhibit P59 at pp 1-2. -- 214 of 496 -- [2026] SADC 27 209 1097 By way of explanation, in his report (and in his evidence) Prof McFarlane explained that PTSD was a condition that involved the neurobiological dysregulation of multiple symptoms (or pathways) which increased the risk of schizophrenia for individuals who otherwise had a vulnerability to it.1307 As to those risk factors, they included the identified neurocognitive deficits associated with both ADHD and dyslexia. However, in the absence of any family history of the disorder, he did not consider the applicant to be an individual rated as at either a mild or high risk of developing psychosis prior to the incident.1308 1098 Prof McFarlane expressed the opinion that it was not possible to conclude that in the absence of the incident, the applicant would not have developed schizophrenia. However, it was his opinion that on the balance of probabilities, the risk that the applicant did develop schizophrenia was substantially increased as a consequence of the incident, due to its ‘possible neurological impact and his development of a post-traumatic stress disorder’.1309 1099 In his report, Prof McFarlane referred to various research papers which had emphasised the role environmental factors played in the onset of schizophrenia, in addition to the known genetic factors. Specifically, he referred to increasing evidence of an interaction between environmental stress and the expression of genetic risks insofar as stress played a role in activating neurobiological systems. He stated that the effects of the incident were likely to have played a significant role in substantially magnifying the consequence of any pre-existing risk factors, such that: 1310 ... on the balance of probabilities, the assault, the resultant head injury and the development of post-traumatic stress disorder, all had a substantial impact on increasing the risk of this becoming manifest. 1100 Prof McFarlane acknowledged that even in the absence of any risk factors, an individual may develop schizophrenia. As such, had the incident not occurred, the applicant was still at risk of developing schizophrenia. However, he stated:1311 This was in the lower band of risk. He did not have any pre-existing disorder of the type associated with depression or anxiety. There was no evidence of pre-psychotic symptoms. Hence, he was not in a mid or high-range probability band. However, he had a greater risk of the adverse effects of the environmental stress or drug usage, such as amphetamine or cannabis, given his existing neurocognitive deficits. He was equally at greater risk for the impact of head injury or other adversities and stresses that may have impacted on him in his early adulthood. 1307 Exhibit P59 at p 22. 1308 Exhibit P59 at p 2; T 1518.7-1519.4. 1309 Exhibit P59 at p 22. 1310 Ibid at p 23. 1311 Ibid. -- 215 of 496 -- [2026] SADC 27 210 Second report – 3 February 2021 1101 Prof McFarlane’s second report was obtained by the applicant’s solicitors to address developments that had occurred since Prof McFarlane’s first report over two years earlier. In addition, Prof McFarlane was asked to comment on various material, including a report from Prof Nielssen dated 15 May 2019.1312 1102 At the time Prof McFarlane re-examined the applicant on 21 January 2021, his presentation was said to be quite different from that during the first examination. He appeared to have poor insight both into aspects of his care and the significance of his symptoms. He was paranoid in his thinking and at times appeared to be delusional.1313 1103 Prof McFarlane described the applicant as having both chronic schizophrenia ‘in partial remission’ and chronic PTSD. He outlined in detail the symptoms reported at that time by the applicant insofar as those symptoms fulfilled the various criteria for PTSD in DSM-V. While many of these symptoms were said to be related to the incident, the applicant also described traumatic memories and ‘a sense of horror and regret’ in relation to the assault on his parents.1314 Third report – 5 September 2023 1104 Prof McFarlane’s third report was provided by way of response to a request for him to comment on various documents, including the report of Prof Nielssen dated 21 June 2022. I will refer to Prof McFarlane’s various criticisms of Prof Nielssen’s evidence, below. Pre-incident vulnerability 1105 Prof McFarlane was questioned extensively at trial as to the applicant’s pre- existing vulnerability to developing schizophrenia, irrespective of the incident. 1106 During examination-in-chief, Prof McFarlane referred to attention difficulties and behavioural issues experienced by the applicant as having some relevance, but only insofar as it was important for him to then determine if the concentration difficulties the applicant had described post-incident were relevant to the diagnosis of PTSD and/or such difficulties were indicative of some other risk factor or some prodrome. Although not expressly stated, it is apparent that Prof McFarlane considered these prior difficulties to be explained by the applicant’s ADHD. He stated that an individual with ADHD had a 3.5% chance of developing psychosis in contrast to a 1% chance in the absence of that diagnosis.1315 He agreed with a proposition that these issues had limited significance to the issue of causation.1316 1312 See discussion below. 1313 T 1542.23-1543.10; Exhibit P63 at p 5. 1314 Ibid at pp 5-7. 1315 T 1496.1-22. 1316 T 1497.1-5. -- 216 of 496 -- [2026] SADC 27 211 1107 Prof McFarlane explained that these issues were not such as to suggest that the applicant was already in the prodrome of schizophrenia at the time of the incident. There was no evidence that prior to the incident, the applicant had any of the symptoms suffered by individuals within the high risk prodrome, that is, attenuated positive symptoms such as hallucinations, brief intermittent psychotic symptoms and/or a steep decline in functioning in the context of a family history of schizophrenia.1317 1108 In cross-examination, Prof McFarlane agreed with the proposition that schizophrenia was a disorder that had multiple factorial risk factors contributing to its onset.1318 He acknowledged that the applicant was at a risk of developing schizophrenia irrespective of the incident but maintained his view that the applicant’s vulnerability to that illness was low.1319 Causation hypothesis 1109 During his evidence-in-chief, Prof McFarlane elaborated on his opinion as to why the incident had increased the applicant’s risk of developing schizophrenia and the role it had played in the onset of schizophrenia. 1110 He gave evidence about his extensive interest in the role of trauma in the onset of psychiatric disorders, including both PTSD and psychosis. Although he was not currently engaged in any clinical appointments with patients suffering from schizophrenia, he had had significant career exposure to such patients.1320 1111 Prof McFarlane described several longitudinal studies in which he had been involved, including studies of children involved in the Ash Wednesday Bushfires, children exposed to lead exposure in Port Pirie and burns victims at the Women’s & Children’s Hospital. Those studies considered three specific issues in terms of the subsequent emergence of psychotic symptoms, namely the role of symptoms in childhood as predictors in adult disorders, exposure to trauma and substance use.1321 1112 The studies were designed to ascertain why it was that some people who were exposed to trauma became unwell and others did not and to better understand the biological and neurocognitive processes that may underpin various psychotic disorders.1322 1113 It was in this context that Prof McFarlane was examined with a view to further explaining his view as to the causal link between the incident and the applicant’s subsequent development of schizophrenia. 1317 T 1495.23-36; T 1497.5-20. 1318 T 1525.2-4. 1319 T 1518.7-1519.4. 1320 T 1510.29-31; T 1511.19-20; see also Exhibit P58. 1321 T 1456.1-36. 1322 T 1461.19-33. -- 217 of 496 -- [2026] SADC 27 212 1114 Prof McFarlane explained that schizophrenia was a psychotic illness, only diagnosed if an individual had a particular pattern of symptomology for a period greater than six months. Such symptoms included severe depression, mania, psychotic and delusional thinking and hallucinations. A contributing factor to the illness was genetic risk and the disorder could occur in family clusters. There was a very large number of genes that could occur across the spectrum of psychiatric disorder and the number and clustering of those genes was relevant to predicting risk. However, a lot of people had the genetic risk for the disorder but did not develop it. As such, the issue for determination and that which was the subject of much research, was what switched the relevant genes on and off.1323 1115 Prof McFarlane explained that it had been known for some time that the ‘dopamine pathway’ was an important mechanism that led to psychotic processes and in particular, over-activity of the dopamine system. As to ‘other causes’, he stated:1324 … In terms of the other causes of schizophrenia, all sorts of risk factors have been identified. Things like maternal infection during pregnancy, maternal birth trauma or childhood birth trauma, neurocognitive difficulties during development. There are also a whole range of environmental exposures such as exposure to adversity in childhood, assault in adulthood. I know that it's not a matter for this case but head injury has been extensively investigated as a risk factor. … 1116 Prof McFarlane gave evidence that there was no one single causal factor - the issue was how multiple factors would interact and lead to the manifestation of the disorder. By way of example, he noted that if you had a set of identical twins where one had schizophrenia, there was only a 60% probability that the other twin had the disorder, thus indicating that both developmental and environmental factors were to play, rather than it simply being a question of genetics.1325 1117 Although his reports focussed on the link between PTSD and schizophrenia, in evidence, Prof McFarlane emphasised that exposure to life stress of itself, increased the risk of the onset of schizophrenia, quite independent of PTSD. He said:1326 The stress response involves the activation of a range of chemical and metabolic pathways and that in turn is likely to involve changes in the methylation of certain gene pathways and that is how it is probable that life events lead to and contribute to the onset of schizophrenia in a vulnerable individual. 1118 In other words, it was not necessary for an individual who had been exposed to a stressor such as an assault, to suffer from PTSD to have a significantly increased risk of developing schizophrenia.1327 What was therefore important was not so much whether the applicant had developed PTSD but whether he had 1323 T 1473.6-8; T 1472.14-32. 1324 T 1473.32-1474.2. 1325 T 1474.8-27. 1326 T 1475.16-22. 1327 T 1476.3-8. -- 218 of 496 -- [2026] SADC 27 213 demonstrated ‘a pattern of psychological reactivity to remind us of the trauma because that is essentially what drives the underlying neurobiological dysregulation’.1328 1119 As to individuals who did develop PTSD, this triggered a series of stress responses. One of those was an increase in dopaminergic turnover, being important given that dopamine was a neurotransmitter relevant to the onset of schizophrenia.1329 He said:1330 So the stress response is likely again to activate certain metabolic and genetic manifestations in the dopaminergic system that are one mechanism by which post- traumatic stress disorder could then increase the risk of an individual who carries the genetic susceptibility to schizophrenia for that disorder to emerge. 1120 Prof McFarlane referred to various studies which he considered supported that opinion. He emphasised a study undertaken by Varese (and others)1331 which he said supported a finding that childhood trauma (such as assault) was a significant factor for psychosis. He noted that this comprehensive cross-sectional cohort study had found that people with psychotic illnesses were 2.7 times more likely to be exposed to adverse events than control subjects.1332 He said:1333 Essentially, what that means, if you were able to stop child trauma exposure, that the number of people with psychosis would be reduced by 33%. 1121 Prof McFarlane referred to a number of other published articles reporting on the results of various studies. These included a study by Chen and others, published online in JAMA Psychiatry on 17 January 2024.1334 Prof McFarlane described this as a very important study, published in an extremely reputable journal, involving some almost 50,000 individuals identified from the Swedish total population register linked to health and population registers. He said the study determined that an individual who had been assaulted had a 2.8 times greater chance of developing schizophrenia, suggesting that assault of its own right was a significant contributor to the onset of schizophrenia.1335 In addition, an individual who had been assaulted may be at 2.9 times greater risk of developing PTSD compared to their sibling, as against a population comparison of 3.9 times greater risk, being another pathway leading to the onset of schizophrenia.1336 1122 Prof McFarlane gave evidence that he had a specific interest in what were referred to as ‘staging models’ in relation to PTSD, as there was evidence that those who had been exposed to a traumatic event, with a subsequent traumatic 1328 T 1476.10-14. 1329 T 1475.25-31. 1330 T 1475.31-37. 1331 Exhibit P70. 1332 T 1502.11. 1333 T 1502.14-16. 1334 Exhibit P67, ‘Incidence Trajectories of Psychiatric Disorders after assault, injury and bereavement’. 1335 T 1482.20-33. 1336 T 1483.22-25; T 1485.4-8. -- 219 of 496 -- [2026] SADC 27 214 exposure, had a greater risk of developing a PTSD following exposure to that second event.1337 This was important in defining emerging risk factors and in the treatment of psychiatric illness in its very early stages. He said:1338 If an individual has been exposed to a traumatic event, you could imagine that they don’t necessarily develop the disorder immediately and the staging model would assist in mapping the progression of symptoms, so that if you develop a post-traumatic stress disorder following an assault, that then puts you into a category where you would be at a slightly greater risk than somebody who hadn’t developed those symptoms and hadn’t development schizophrenia. (my emphasis) 1123 In terms of the applicant, he noted that Dr Rowe had diagnosed the applicant with an adjustment disorder with anxiety and depression. This meant that he was then placed at a higher risk of going on to develop schizophrenia than had he not been assaulted and had not developed either anxiety or depression.1339 1124 Prof McFarlane referred to an article published in Psychological Medicine by P Fusar-Poli, ‘Lessons Learned from the Psychosis High Risk State: Towards a General Staging of Prodromal Intervention’, as supporting the staging model of the development of schizophrenia.1340 1125 Prof McFarlane gave evidence that the effect of cumulative trauma on the development of psychosis was examined by Shevlin (and others) in a paper entitled ‘Cumulative Traumas and Psychosis: An Analysis of the National Comorbidity Survey and the British Psychiatric Morbidity Survey’.1341 This paper was said to demonstrate how an association between trauma exposure and the onset of various psychiatric illnesses could be documented and the role of various traumatic events in the onset of psychosis. 1126 Prof McFarlane also referred to a paper authored by Okkels (and others) entitled ‘Traumatic Stress Disorders and Risk of Subsequent Schizophrenia Spectrum Disorder or Bipolar Disorder: A Nationwide Cohort Study’.1342 Following a prospective cohort study covering the entire Danish population, the authors had concluded that persons with a traumatic stress disorder had a significantly increased risk of schizophrenia (3.8 times the risk), with the risk being at its highest in the first year after diagnosis of the traumatic stress disorder and the risk remaining significantly elevated after more than five years.1343 1127 Importantly, Prof McFarlane gave the following evidence-in-chief:1344 1337 T 1485.31-1486.3. 1338 T 1487.21-30. 1339 T 1488.4-11. 1340 T 1490.18-21, noting that this paper was admitted de bene esse as Exhibit P68. 1341 Exhibit P69. 1342 Exhibit P71. 1343 T 1506.32-1507.10. 1344 T 1500.28-36. -- 220 of 496 -- [2026] SADC 27 215 Whilst it would be in my view that we can’t specifically say what causes schizophrenia, we certainly have a very good idea of what the risk factors are and what are the relevant mechanisms. Nobody can state what are the causes of cancer either, that doesn’t stop us having some very good ideas about what are the relevant factors that should be addressed in causation and how that might lead to us new treatments. 1128 In cross-examination, Prof McFarlane acknowledged that there may have been any other number of events that may have triggered what was the applicant’s pre-existing, albeit low probability to develop schizophrenia, in any event. Although he could not say what had caused the applicant’s schizophrenia, he maintained that the incident presented an increased risk of the applicant developing schizophrenia.1345 1129 Prof McFarlane was asked about the conclusion he had expressed in his first report, namely that the applicant’s risk of developing schizophrenia was ‘substantially increased as a consequence of the assault, its possible neurological impact and his development of PTSD’.1346 When it was suggested to him that by this conclusion, he was expressing the opinion that the applicant’s risk of developing schizophrenia was substantially increased as a result of the incident, he denied this. He said:1347 I don't think that's what I'm saying, all I'm saying is it's not possible to conclude that he would have not developed schizophrenia at that time if he had not been assaulted. There might have been other factors that came into play, other events that may have occurred, he may have, he was an individual who was potentially at risk, he may not have developed schizophrenia but, he may not have developed schizophrenia but he may have developed schizophrenia if something else happened. All I'm saying there is the risk existed and we don't know whether it was or wasn't going to be manifest, I'm not commenting about the magnitude of the risk. 1130 Prof McFarlane reiterated his opinion that the applicant’s exposure to the trauma of the incident had increased the risk of him subsequently developing schizophrenia, for the reasons as previously explained. PTSD 1131 Prof McFarlane was cross-examined extensively as to his retrospective diagnosis of PTSD. 1132 He acknowledged that by the time he first saw the applicant, more than six years had passed since the onset of the applicant’s psychotic symptoms and he had experienced a number of other traumatic life events including the attack on his parents.1348 1133 Prof McFarlane said that when making his retrospective diagnosis of PTSD, he had been very careful to try to differentiate what symptoms had arisen in the 1345 T 1519.5-31; T 1524.34-1525.4. 1346 Exhibit P59 at p 22. 1347 T 1518.25-37. 1348 T 1519.5-11. -- 221 of 496 -- [2026] SADC 27 216 context of the attack on his parents in 2014, rather than the incident. He had relied significantly on the applicant’s history to do so.1349 1134 Prof McFarlane had relied on the applicant’s history as to the immediate psychological effects suffered by him following the incident. He had ‘tested’ the reliability of that history by reading other documents that had been provided to him to ascertain whether there were any major inconsistencies and the information contained in those documents and that provided by the applicant. He had also based it on his impression and assessment of the applicant’s mental state as at the time of his examination in July of 2018, during which the relevant history was obtained. 1135 Having regard to the applicant’s presentation at the time of that first assessment, Prof McFarlane considered there was a greater probability that he was able to give a reasonable account of himself than at the second interview in January 2021, at which time he was psychotic and delusional. He said:1350 People who have been psychotic, I think generally are less able to recount symptoms than people who haven’t been psychotic. 1136 He acknowledged that psychosis could influence memory and change the ability to recall, as could trauma.1351 1137 Although Prof McFarlane did not have access to the applicant’s school reports, he had been privy to reports from Dr Lamb, Dr Clark and Dr Hill and therefore understood that the applicant had been prescribed Ritalin due to concentration difficulties. However, he had acted on the applicant’s history that those problems worsened after the incident.1352 1138 Aspects of the applicant’s history apparently provided to Prof McFarlane, and upon which he had relied, which were inconsistent with other evidence, were put to Prof McFarlane. These included additional information about the behavioural issues the applicant had experienced at school, the absence of any reference to PTSD symptoms during his consultations with medical practitioners prior to departing for China and the evidence the applicant had given of what he did when in China, namely that he spent most of his time drinking and partying, meeting girls and getting drunk. 1139 These also included the applicant’s evidence that when he was in China, he had made many friends including teachers and what he had described as the emotional impact on him of his work in the orphanage. 1140 Notwithstanding the differences in that evidence, compared to the history provided to him by the applicant, Prof McFarlane maintained his opinion. When it was suggested to him that the history given by the applicant as to the symptoms 1349 T 1546.35-1547.4. 1350 T 1543.14-17. 1351 T 1545.15-22. 1352 T 1529.33-35. -- 222 of 496 -- [2026] SADC 27 217 which he evaluated for the purposes of diagnosing both PTSD and the onset of psychosis needed to be verified, Prof McFarlane said:1353 If there are other sources of information it would be important to have those. However, it doesn't mean that you can't make some reasoned assessment on the basis of what he did say to me. It would be unusual for somebody to give the history that he gave me if there wasn't some reality to it. 1141 Prof McFarlane acknowledged that what the applicant had told him during his first assessment, namely that he had never had any auditory or visual hallucinations was untrue having regard to the medical records. However, Prof McFarlane explained this on the basis that the frequency of psychotic symptoms was often underreported by patients. 1142 Prof McFarlane maintained his opinion that the applicant was suffering from PTSD after the incident, albeit he could not say exactly when it emerged. Although PTSD could be delayed in its onset, he thought the applicant was definitely suffering PTSD by mid-2012. He disagreed with the diagnosis of Dr Rowe to the contrary.1354 He speculated either that the applicant had been guarded when responding to Dr Rowe’s questions, or that Dr Rowe may not have probed the applicant sufficiently to identify the relevant ‘re-experiencing’ criteria. 1143 He also explained the absence of any reference by the applicant to symptoms prior to leaving for China as likely due to underreporting.1355 1144 Prof McFarlane maintained that the applicant met the criteria for PTSD as at 2012. 1145 As to criterion A, he was satisfied as to the severe nature of the facial injuries suffered by the applicant, irrespective of who may have been the instigator of the incident or the number of blows sustained.1356 As to criterion B, he described the applicant reporting to him that he had re-experienced the incident insofar as he described being in a video accompanied with the sensation of being hit and feeling numbness followed by pain. 1146 Notwithstanding the applicant’s description of his time (and symptoms) in China as reported during the assessment were different to those described in his evidence, that did not sway Prof McFarlane in his diagnosis. He explained that he had put in a great deal of thought about how he questioned the applicant during a structured diagnostic interview and it was likely that neither the same thought nor care had gone into questioning the applicant at trial as to the level of his symptomology in China. He suggested that it was probable the applicant may have 1353 T 1576.36-1577.3. 1354 T 1580.34-1581.4. 1355 T 1570.32-36. 1356 T 1581.21-1582.13. -- 223 of 496 -- [2026] SADC 27 218 described more extensive symptomology had he been more extensively questioned during his evidence. 1147 It was suggested to Prof McFarlane that the applicant’s evidence about the nightmares he had suffered in China was that those dreams were associated with the murder of babies and had been experienced only after the death of the babies at the orphanage. A proposition was put to Prof McFarlane that as such, those dreams were not associated with the incident, meaning they lacked the necessary association with the trauma to fulfill criterion B. Prof McFarlane gave the following evidence:1357 A. No, and if that history is accepted it would suggest that the death of those babies was significant. But that's not the history I obtained. Q. No, you obtained a different history. A. That's correct, as did other clinicians. Prof Nielssen Introduction 1148 Prof Nielssen was retained by the solicitors representing the third and fourth respondents to provide expert evidence, essentially to rebut the opinion as expressed by Prof McFarlane. 1149 Prof Nielssen is a Professor of Psychiatry at the Macquarie University and a Clinical Professor at Sydney University. He is a member of the Schizophrenia International Research Society, a visiting psychiatrist at a clinic for the homeless in Sydney (treating patients with chronic schizophrenia) and a reviewer for journals including the Schizophrenia Bulletin and other eminent Australian, British and Americal clinical journals.1358 1150 Prof Nielssen gave evidence at trial and three reports prepared by him were tendered, as were various letters of instruction provided to Prof Nielssen and materials and literature relied upon by him.1359 First report – 15 May 2019 1151 Prof Nielssen’s first report was prepared having regard to a detailed letter of instruction and materials provided to him by the third and fourth respondents’ solicitors. Prof Nielssen was asked to make a number of assumptions, including that the applicant had a family history of mental illness (namely illness suffered by an aunt and one of his brothers, as reported to by Dr Rowe) and that there was evidence the applicant had previously used illicit drugs, contrary to his express denial otherwise. 1357 T 1587.11-15. 1358 T 1653.15-1654.37. 1359 Exhibits R76 and R77. -- 224 of 496 -- [2026] SADC 27 219 1152 Prof Nielssen relied on these and other assumptions when he prepared his first report (and presumably his subsequent reports). 1153 Prof Nielssen’s first report was prepared in the absence of him examining the applicant. Rather, his report was confined to an explanation as to the nature of both schizophrenia and PTSD and to respond to various questions posed by the instructing solicitors explaining what may cause schizophrenia and any relationship between PTSD and schizophrenia. 1154 Prof Nielssen described schizophrenia as a group of disorders affecting the frontal and temporal lobes of the brain. He stated that the exact mechanisms underlying the development of schizophrenia were not known. However, in its typical form, it was a neurodegenerative disorder, commencing in the perinatal period. The disorder manifested itself in an acute syndrome of perceptual disturbances and abnormal beliefs, with a more marked decline in social functioning occurring in late adolescence or early adult life.1360 1155 Prof Nielssen described schizophrenia as a genetically mediated condition, with there being about 14 genes that were associated with an increased likelihood of developing schizophrenia. Those genes were known to influence a range of mechanisms, including the function of the dopamine pathways, neurogenesis and were vulnerable to an interaction with cannabinoids.1361 1156 He explained that cannabis use was associated with an earlier onset of schizophrenia and a less favourable course of the illness. However, the use of tobacco and alcohol on their own were not associated with any earlier onset of schizophrenia. 1157 Other factors identified as being associated with an increased likelihood of developing schizophrenia were acquired brain injuries from trauma, hypoxia, toxicity, infections, migration (particularly of dark-skinned people to high income countries) and early life trauma, especially sexual abuse in late childhood.1362 1158 Prof Nielssen stated that he was unaware of any reliable research showing a causative link between psychological trauma and the neurological changes that result in the syndrome of schizophrenia.1363 1159 He was aware of population studies that had shown people who went on to develop schizophrenia were more likely to have behavioural and learning problems as children and hence more likely to be diagnosed as having ADHD and dyslexia. He noted that sometimes the emergence of attention and concentration problems in adolescence were part of the prodromal illness of schizophrenia and were 1360 Exhibit R76 at p 162. 1361 Ibid. 1362 Ibid at p 163. 1363 Ibid at p 164. -- 225 of 496 -- [2026] SADC 27 220 mistaken for ADHD. He stated that ADHD and dyslexia were common early manifestations of the neurological substrate of schizophrenia.1364 1160 Based on the assumptions and material provided to him, Prof Nielssen expressed the opinion that the applicant likely already had the neurodevelopmental changes that were likely to express themselves as a schizophrenic illness prior to the incident and that the incident itself was not the cause of the subsequent emergence of what had become a chronic and relapsing mental illness.1365 1161 He stated that as the applicant had a family history of mood disorder, this suggested an inherited vulnerability to develop a psychiatric disorder and further, the fact that he had both ADHD and dyslexia in childhood, suggested the presence of a neurological substrate of schizophrenia.1366 1162 Prof Nielssen accepted that the applicant had suffered what was significant trauma, sufficient to cause a facial fracture and possibly a transient loss of consciousness in the incident. However, a CT scan of the brain showed no abnormalities, he was alert and orientated when seen to by both ambulance and emergency personnel and he was discharged from hospital the following day without any reference to concussion or brain injury. 1163 As such, any brain injury from the assault was likely to be mild. He stated:1367 In any case, it seems quite likely that he was already showing the early signs of an emerging psychotic illness. 1164 Further, Prof Nielssen expressed the opinion that the main additional factor leading to the emergence of the condition in 2012 was the probable effect of substance use around that time. 1165 Importantly, Prof Nielssen noted that there was no current method of conclusively proving or disproving a causative pathway. However, he rejected any proposition that a psychological reaction to the incident somehow triggered the subsequent emergence of schizophrenia as being a hypothesis not founded in any settled science. He maintained that the most likely explanation for the applicant’s condition was that he had a genetically determined neurodegenerative disorder, with the main trigger being the probable effect of the use of cannabis and stimulant drugs about that time. 1166 In evidence, Prof Nielssen confirmed that whether or not there was a family history of mood disorder with respect to the applicant, did not make any difference to his opinion.1368 He was also asked about the assumptions that he had made that the applicant was using cannabis and/or stimulant drugs at the time he became 1364 Ibid at pp 163-164. 1365 Ibid at p 165. 1366 Ibid. 1367 Ibid. 1368 T 1659.2-7. -- 226 of 496 -- [2026] SADC 27 221 schizophrenic. He was asked whether, if that was not the case, that would alter his opinion as to causation. Prof Nielssen said:1369 No, I don't believe that drugs are the cause; they just bring it on earlier, and to such a large degree that it may well be causative. And it's been estimated that if people didn't use drugs, there'd be something like 8% of people wouldn't develop schizophrenia. But, I don't believe it's causative, it just triggers an earlier onset. Second report – 21 June 2022 1167 For the purposes of his second report, Prof Nielssen conducted an interview with the applicant by telephone on 3 March 2022, a short and interrupted further telephone interview on 30 March 2022 and a longer, more comprehensive interview via AVL on 20 April 2022. 1168 The applicant gave a history to Prof Nielssen as to the physical impact of the injury sustained in the incident, at odds with that demonstrated in the Royal Adelaide Hospital case notes. Specifically, he told Prof Nielssen that he was in hospital for two weeks after the incident, including between three to five days in Intensive Care, followed by two weeks in a private hospital being hand fed because he was blind. He described being almost beaten to death with champagne bottles at the party.1370 1169 He described the psychological effects of the incident as causing him to lose trust in the people around him, the onset of panic attacks, anxiety and heightened emotion. He described seeing a psychologist for PTSD in 2012 and explained that he had suffered PTSD prior to suffering psychosis at the age of 19.1371 1170 The applicant denied smoking cannabis as a teenager, explaining that this was inconsistent with the strict training regime he undertook as a rower, being a sport in which he described having considerable prowess.1372 He denied statements apparently attributed to him to the contrary in the various hospital admission records, stating he was psychotic when talking to them, such that you could not rely on anything he said at that time.1373 1171 Prof Nielssen agreed that the appropriate diagnosis was a chronic form of schizophrenia, characterised by chronic persecutory beliefs and impaired self- awareness and insight.1374 1172 Importantly, Prof Nielssen expressed the opinion that he was unable to confirm whether the applicant now has or ever had PTSD. He stated that the applicant seemed to have ‘conflated anxiety symptoms and fear arising from emerging persecutory beliefs in the years after the assault with the effects of the 1369 T 1667.26-32. 1370 Exhibit R76 at pp 175-176. 1371 Ibid at pp 176-177. 1372 Ibid at p 176. 1373 Ibid at p 177. 1374 Ibid at p 181. -- 227 of 496 -- [2026] SADC 27 222 assault’.1375 He also noted that aspects of the applicant’s history, for example about his medical care, was quite unreliable, which in his mind raised some doubt about the applicant’s ability to provide a reliable history of the nature and timing of symptoms which may otherwise have been attributable to a diagnosis of PTSD.1376 1173 Prof Nielssen stated that in its typical form, schizophrenia was now understood to be a neurogenerative disorder affecting the frontal and temporal lobes of the brain, commencing in the perinatal period. He expressed the opinion that it was likely that the applicant was affected by prodromal symptoms at the time of the incident, which symptoms affected both his mood and behaviour. This was something that was only able to be diagnosed retrospectively (that is, after the diagnosis of schizophrenia).1377 1174 It was Prof Nielssen’s view that the behavioural and learning problems, identified by the applicant during his childhood and adolescence, were likely to have been a manifestation of the neurological changes related to the subsequent development of schizophrenia. In this respect, he emphasised the findings made by Dr Clark, who had conducted cognitive testing of the applicant in 2006, which had concluded the applicant’s difficulties were likely to be frontal in origin and were not in a pattern strongly consistent with ADHD.1378 1175 Prof Nielssen disagreed with the opinion expressed by Prof McFarlane that prior to the incident, the applicant was in the low band of risk of developing schizophrenia. The applicant had been diagnosed with ADHD and had demonstrated learning and behavioural problems. He had a pattern of impairment in executive function, found on neuropsychological testing which, in Prof Nielssen’s view, in retrospect, was very likely to have been the signs of underlying neurological changes of emerging schizophrenia.1379 1176 He acknowledged that the applicant may not have been considered to be at ultra-high risk.1380 1177 Prof Nielssen referred to the various research papers referred to by Prof McFarlane in his reports. He was critical of much of that research as being association studies using administrative data (case register entries) which inflated the diagnosis of schizophrenia by as much as two to three times and likely included a large number of people with other illnesses, such as severe personality disorder. He stated that the cited research was speculative and potentially misleading. He referred to a recent umbrella review conducted by Radua combining the results of 55 systemic reviews and meta-analysis studies. That study did not list 1375 Ibid. 1376 Ibid at pp 181-182. 1377 Ibid at p 182. 1378 Ibid at pp 180 and 182. 1379 Ibid at p 182. 1380 Ibid. -- 228 of 496 -- [2026] SADC 27 223 psychological trauma or a diagnosis of PTSD among the identified risks for schizophrenia.1381 1178 Prof Nielssen expressed the opinion that the incident was merely a coincidental event and was not a necessary condition for the development of the applicant’s schizophrenia.1382 1179 Further, Prof Nielssen doubted the accuracy of Prof McFarlane’s retrospective diagnosis that the applicant had PTSD prior to the onset of his psychotic illness. He noted that in informing his opinion, Prof McFarlane had assumed that the applicant had the requisite symptoms to meet criterion B of the diagnosis but for some reason was unable to convey the fact of that history to Dr Rowe. At the time of his assessment, Prof Nielssen was unable to confirm whether the applicant had PTSD, or had ever had PTSD, given how unreliable the applicant’s history appeared when compared to information in other documents. It was his view that the applicant appeared to be conflating symptoms of PTSD with symptoms of a psychotic illness.1383 1180 In his opinion, the applicant was probably not suffering from PTSD prior to the onset of schizophrenia and that PTSD had not caused his schizophrenic illness. In expressing this opinion, he relied on the history of symptomology obtained prior to the applicant’s development of a chronic and disabling form of psychotic illness, which was of itself, traumatic and prior to that history being contaminated by issues arising from these proceedings.1384 1181 Prof Nielssen disagreed with Prof McFarlane’s opinion that PTSD was a reliable diagnosis, it being reliant on the patient’s self-report of symptoms and the practitioner’s ability to accurately distinguish PTSD from other conditions. He stated that the inherent unreliability of the diagnosis, in itself, cast doubt on the outcome of any research based on samples of patients apparently diagnosed with PTSD.1385 Third report – 22 October 2023 1182 Prof Nielssen’s third report addressed matters arising from certain material provided to him by the third and fourth respondent’s solicitors, including extracts from the records from Farmfield and Broadmoor and a transcript of the evidence given by the applicant when he gave evidence in March 2023. As to the latter, Prof Nielssen’s opinion was sought as to the potential impact on the reliability of that evidence given his mental state at the time the evidence was given. His findings (and further evidence at trial given on that topic) are discussed below at paragraphs 1340-1342 herein. 1381 Ibid at p 183; see Exhibit P72. 1382 Ibid at p 183. 1383 Ibid at p 184. 1384 Ibid at p 185. 1385 Ibid at pp 185-186. -- 229 of 496 -- [2026] SADC 27 224 1183 Prof Nielssen was also asked to comment on Prof McFarlane’s criticism of the views he had expressed in his earlier reports, rejecting any causal link between the incident and/or PTSD and schizophrenia. Prof Nielssen stated:1386 The fact is that we do not know the cause of schizophrenia. The environmental factors such as cannabis, migration, various kinds of acquired brain injury and the many other factors examined in the umbrella review are associated with an increased risk of being diagnosed with the disorder. They are not known causes of schizophrenia. None of the known risk factors, including any known combination of suspect genetic variants, would meet the Bradford-Hill epidemiological criteria for causation...Those criteria are strength, consistency, specificity, temporality, biological gradient, plausibility, coherence, experiment, analogy and reversibility. In short, none of the known environmental influences, including substance use, are sufficiently strong or specific to be considered to have caused schizophrenia. The current understanding of the condition is that it is a neurodevelopmental disorder beginning in the perinatal period, and the main influence of the identified environmental factors is in the course of the illness. 1184 Specifically, he stated that there was no proof that childhood trauma caused schizophrenia, nor was adult trauma of the type which may otherwise cause PTSD one of the factors associated with high risk of developing schizophrenia.1387 Prof McFarlane’s causation hypothesis 1185 The evidence given at trial by Prof Nielssen was largely directed towards either establishing, or testing, his rejection of Prof McFarlane’s ‘causation hypothesis’. 1186 Prof Nielssen referred again to the results of the umbrella review conducted by Radua. He reiterated that the study did not list psychological trauma or a diagnosis of PTSD among the identified risk factors for schizophrenia. 1388 1187 He also referred to a more recent review conducted by Tandon and others, the results of which were in an article entitled ‘The Schizophrenia Syndrome, Circa 2024: What We Know and How that Informs its Nature’.1389 He described this as basically a summary of thousands of studies in order to understand schizophrenia, its causes, its treatment and where further research should be.1390 1188 Prof Nielssen gave evidence that what was important about this review was that it recognised an association between certain identified ‘aetiology environmental factors’ and schizophrenia, with those factors including a history of migration, cannabis use, older paternal age at birth and childhood trauma. Relevantly, neither single episode adult trauma, nor single trauma itself were listed as such factors.1391 1386 Ibid at p 197. 1387 Ibid at pp 198-200. 1388 T 1669.27-1670.12. 1389 Exhibit R77 at pp 861-888. 1390 T 1670.16-1671.9. 1391 T 1671.26-1672.6; T 1674.15-16. -- 230 of 496 -- [2026] SADC 27 225 1189 The review included a conclusion that, ‘pulling together information across different levels of analysis (eg between aetiology and pathology), there appear intriguing associations, but none are definitive or proven.’1392 1190 When asked to comment about that, Prof Nielssen gave the following evidence:1393 Well, of course. That's the state of the science. There's all these association studies but very few that meet the causative criteria, the criteria for causation and it's not as though we're not looking for causes and not as though we don't have vast bodies of data on which to seek causes but we just haven't found any specific causes. 1191 Prof Nielssen was specifically directed to the research studies relied upon by Prof McFarlane to support his hypothesis that trauma (and/or PTSD) was associated with an increased risk of schizophrenia. One such study was that authored by Shevlin (and others), relied upon by Prof McFarlane to support his hypothesis that trauma during childhood was associated with an increased likelihood of psychosis.1394 1192 Prof Nielssen noted that the results of this extensive study of a large number of epidemiological samples showed that multiple traumatic experiences were found to be associated with such an increased likelihood of psychosis, however a single trauma type did not significantly increase that likelihood.1395 1193 He gave evidence about the confidence interval for the odds ratio, which suggested that those who experienced a single trauma during childhood were 1.7 times more likely to develop psychosis. This indicated that the finding had not reached a level of significance.1396 1194 Further, Prof Nielssen highlighted that this study was directed towards the impact of childhood trauma and neurological development, rather than early adult trauma.1397 The incident was a single trauma, sustained by the applicant at the age of 17 (nearly 18). Shevlin’s research, and others had focussed on childhood trauma and its effect on the development of neurological functioning, which in turn affected or produced the syndrome of neurodegenerative symptoms. As such, Prof Nielssen’s view was that the childhood research studies were not relevant to the applicant.1398 1195 Prof Nielssen gave evidence that if there was any association between PTSD and/or trauma and schizophrenia, it was a weak one. Further, most of the research which demonstrated any such association, was based on case register studies, rather than case capture studies which were prone to inflation. Prof Nielssen 1392 Exhibit R77 at p 876. 1393 T 1675.5-11. 1394 Exhibit P69. 1395 Ibid at p 197; T 1663.22-1664.9. 1396 T 1663.33-1664.10. 1397 T 1664.13-15. 1398 T 1667.3-8. -- 231 of 496 -- [2026] SADC 27 226 explained that a case register includes the clinical diagnoses of doctors, including coding clerks of hospitals. There was a strong incentive to include every diagnosis because the number of diagnoses was relevant to the amount of funding provided to that hospital.1399 1196 By way of example, Prof Nielssen noted that the New South Wales case register studies suggested that there was something like 85,000 people with schizophrenia as diagnosed by the hospital case registers. However, the true prevalence of schizophrenia in New South Wales was probably about a third of that and included people who had never been to hospital. As such, the studies based on case registers were capturing a potential link between identified factors and many conditions which were not in fact schizophrenia (for example other drug- related or trauma-related psychiatric conditions).1400 1197 Prof Nielssen was specifically directed to a paper referred to and relied upon by Prof McFarlane, authored by Okkels, which apparently showed a temporal association between adult diagnosis of traumatic stress disorder and subsequent diagnosis of a schizophrenia spectrum disorder or a bipolar disorder.1401 1198 Prof Nielssen stated that this was a study based on data available in the Danish case register, which was still prone to the same inflation problem, albeit slightly more reliable than studies based on Victorian or New South Wales case registers. He also expressed a concern that the unreliability of a diagnosis of post- traumatic stress disorder (being one largely based on the subjective reporting of symptoms by patients) affected the validity of the study.1402 1199 In addition, while the study supported a finding that there was such an association, it said nothing about the strength of that association.1403 1200 Prof Nielssen acknowledged that the study undertaken by Okkels did provide some support for Prof McFarlane’s hypothesis that there was an association between trauma and schizophrenia. He said, of that study:1404 Well, this would be one of the stronger ones, it is in a top-tier journal and, but look all it's really showing is that the people who subsequently develop schizophrenia have previously been diagnosed with post- traumatic stress disorder, but it seems to be quite a long time before people get the correct diagnosis of schizophrenia and they've gone through often a number of other diagnoses beforehand, like teenagers for example, they get diagnosed with ADHD and then a couple of years later they are diagnosed with schizophrenia, and you look backwards and you say 'Well, all that inattention and impaired concentration and impulsivity was actually emerging psychosis. And it's the same with anxiety symptoms, anxiety symptoms are one of the most common symptoms of a prodromal illness, of an emerging psychotic illness, and we always look around for a cause, you know, like 'Why 1399 T 1665.6-1666.13. 1400 T 1666.5-31. 1401 Exhibit P71 at p 183. 1402 T 1676.1-14. 1403 T 1677.24-28. 1404 T 1678.8-35. -- 232 of 496 -- [2026] SADC 27 227 are we anxious? I don't know, I've got no reason to be anxious, but I did have, you know, I was in a car accident or I had some other drama, that's why I'm anxious', and therefore that's the diagnosis being given to them, and then it subsequently emerges that in fact they were becoming psychotic. So, for example it doesn't really show that there was of psychosis, all it shows is that you were previously diagnosed with a condition and that you'd gone along to a doctor to complain of a condition and that's the label you were given that time, that's all it shows. 1201 Prof Nielssen maintained that on his review of the research, a single traumatic event in adult life was not identified as a risk factor for schizophrenia.1405 1202 When questioned about the various research papers said to support a hypothesis that PTSD lead to schizophrenia, Prof Nielssen maintained that none of that research in fact supported proof of any causal link between PTSD and schizophrenia. He said that at their highest, those authorities only referred to an association between those conditions:1406 There is no proof of causation in any of those. Then also the associations aren’t strong enough to suggest causation and it is coincidence in a person who has got an inevitable neurological course to chronic schizophrenia. 1203 He denied that there was any school of scientific thought that there could be a causative effect between PTSD and schizophrenia.1407 1204 When asked how he could dismiss PTSD as not playing a part in causing the applicant’s schizophrenia, given that there were so many unknowns, Prof Nielssen said:1408 Of course, as I’ve provided in evidence, there’s just not – it’s not one of the identified risk factors. You know, there are so many identifying risk factors but single traumatic events in adult life isn’t one of them. And so that’s a reason I express that opinion. 1205 Prof Nielssen maintained his view that the incident, although traumatic, likely had no causative connection to the subsequent development of the applicant’s schizophrenia. He said:1409 It is unlikely to have had anything to do with it. It was already well underway. 1206 He explained that the nature of schizophrenia was that it was a neurogenital condition. In the applicant’s case, there were some clues that he was in fact suffering early neurological changes which later presented as schizophrenia, the most telling evidence being the psychometric testing undertaken by Dr Clarke when the applicant was a teenager.1410 1405 T 1707.6-14. 1406 T 1705.7-11. 1407 T 1705.12-19. 1408 T 1707.10-14. 1409 T 1702.12-13. 1410 T 1702.15-35. -- 233 of 496 -- [2026] SADC 27 228 1207 By way of elaboration, Prof Nielssen said that although the applicant was diagnosed by some practitioners with ADHD, it was his view that the symptoms founding that diagnosis were probably prodromal symptoms or signs of early neurological changes.1411 He maintained that opinion, notwithstanding being extensively cross-examined as to the nature of the physical injuries suffered by the applicant in the incident and after being directed to the more positive aspects of the applicant’s school reports and pre-incident social and sporting activities. 1208 In re-examination, Prof Nielssen observed that the fact the applicant was having so many psychological and other assessments undertaken during his childhood and adolescence, all dealing with aspects of his neurodevelopment, was of relevance and indicated that there were some neurological changes happening in the applicant, prior to the incident. 1209 When asked what if anything was the difference between neurodevelopmental changes and the occasion of prodromal behaviour, Prof Nielssen said:1412 Yes, obviously it occurs on a continuum for some people and it's a very subtle onset in some people and of quite variable duration. So, some people have a fairly onset of acute psychosis and other people have a clear, morbid change at some point. The average is about a year before the emergence of acute symptoms. And that morbid change often is withdrawal; it is often irritability; it's often anxiety and mood symptoms as they appear to other people; and it's an insidious onset in many cases. PTSD 1210 In evidence, Prof Nielssen elaborated on his inability to confirm a diagnosis of PTSD in the applicant. In essence, that inability was the product of the applicant’s unreliability as a historian. Further, Prof Nielssen noted that a diagnosis to the effect that the applicant had PTSD prior to the onset of schizophrenia but some six years later, was even less reliable, having regard to the impact of time and other life events on the reliability of the applicant’s memory.1413 1211 One of the symptoms that Prof McFarlane had identified as fulfilling criterion B was the applicant’s claimed social withdrawal, following the incident. In cross-examination, Prof Nielssen gave evidence that social withdrawal was very much a characteristic of prodromal schizophrenia.1414 1212 However, Prof Nielssen acknowledged that the incident was traumatic. He could not rule out the possibility that the applicant did develop PTSD after the incident. He said:1415 1411 T 1709.5-10. 1412 T 1722.14-23. 1413 T 1668.20-1669.22. 1414 T 1719.19-21. 1415 T 1720.26-29. -- 234 of 496 -- [2026] SADC 27 229 I can’t exclude that possibility. If he had a particular vulnerability, psychological vulnerability, to becoming anxious of further assault as a result of having been assaulted. Prof McFarlane’s criticism of Prof Nielssen 1213 Prof McFarlane was critical of the opinion expressed by Prof Nielssen refuting any link between the incident and the subsequent development of the applicant’s schizophrenia.1416 1214 Part of that criticism was said to relate to Prof Nielssen’s apparent failure to consider the research otherwise referred to by Prof McFarlane which explored the role between environmental factors and the onset of schizophrenia. Prof McFarlane referred in particular to the study by Varese, which had concluded that there was a significant association between adversity and psychosis.1417 He also disagreed with Prof Nielssen’s analysis of the findings made in a recent study by Radua and emphasised the limitations of that study.1418 1215 He disagreed with Prof Nielssen as to the risk posed of itself by the applicant’s ADHD in terms of the later progression to schizophrenia.1419 1216 He refuted Prof Nielssen’s suggestion that he had conflated symptoms of PTSD with symptoms of a psychotic illness.1420 1217 Further, contrary to the concerns expressed by Prof Nielssen as to the potential for inflation of the figures referred to in studies based on case register data,1421 Prof McFarlane expressed the opinion that this body of research was generally respected and recognised by the broad body.1422 1218 He maintained that the body of research he had identified provided considerable support for his hypothesis. Medical literature/research papers Preliminary observations 1219 As just outlined, Prof McFarlane and Prof Nielssen both referred to various studies or research papers said to support their respective opinions. 1220 To properly understand and assess the opinions of both independent experts, I have conducted my own review of those materials, noting that only some of those studies/research papers were in evidence. Below is a brief summary of the salient features and findings of each study/research paper. 1416 Prof Nielssen’s opinion is discussed below. 1417 T 1502.8-16. 1418 Exhibit P65 at pp 4-5; also see further discussion below. 1419 Ibid at p 3. 1420 Ibid at p 6. 1421 See discussion below. 1422 T 1503.12-1504.7. -- 235 of 496 -- [2026] SADC 27 230 Articles relied upon by Prof McFarlane Chen (and ors) – Incidence Trajectories of Psychiatric Disorders after Assault, Injury and Bereavement (Chen’s study)1423 1221 The objective of this study was to determine the contribution of familial factors to long term incidence trajectories of psychiatric disorders following potentially traumatic events. 1222 The study was based on a cohort obtained from the Swedish Total Population Register linked to health and population registers. It evaluated three separate cohorts of individuals residing in Sweden who were free of previous diagnosed psychiatric disorders when first exposed to assault,1424 injury or bereavement, together with their unexposed full siblings and other unexposed individuals from the same birthplace. 1223 The study found that there was an elevated risk of any psychiatric disorder observed in the first year after exposure to any such traumatic event, although the risk increment declined rapidly thereafter and remained somewhat stable beyond the first year. The risk increment was largely independent of familial background and history of severe somatic diseases. 1224 The greatest increased risk was observed during the first year after sexual assault, loss of child and injury with exposure to a toxic substance. Within all cohorts, there was a greater risk increase of any psychiatric disorder among individuals exposed to multiple traumatic events, than those exposed to only one traumatic event. 1225 The study was said to corroborate ‘the existing literature on an association between various traumatic events and psychiatric disorders. For instance, previous studies indicate that individuals exposed to childhood abuse, sexual violence and traumatic brain injury are at an increased risk of psychiatric disorders, including PTSD, depression, anxiety disorders, alcohol or drug misuse, and suicide attempt or self-harm’.1425 Fusar-Poli (and ors) – Lessons learned from the psychosis high-risk state: towards a general staging model of prodromal intervention (Fusar-Poli’s study)1426 1226 This study argues in favour of early intervention and treatment for a broad category of ‘at risk’ individuals, with a view to preventing those individuals from progressing to develop more severe stages of psychopathology, that may later develop into treatment resistant syndromes. Specifically, the study supports early intervention and treatment for individuals who do not otherwise fall within one of 1423 JAMA Psychiatry, Published Online, January 17, 2024; Exhibit P67. 1424 Including physical assault, assault with a weapon and sexual assault. 1425 Exhibit P67 at p E6, my emphasis. 1426 Psychological Medicine, Published Online, 18 February 2013; Exhibit P68. This document was initially admitted de bene esse but is now received by me. -- 236 of 496 -- [2026] SADC 27 231 the three prodromal groups,1427 known to be associated with an enhanced risk of developing psychotic disorders. 1227 The basis for the recommendation is that people who fall within the high-risk category ‘usually present with a mixed bag of psychopathology, in particular, anxiety, depression and substance use’. The authors argue that this demonstrates that such conditions ‘may represent a functionally and aetiologically highly relevant feature’, and that extending specialised services for those with such conditions who do not otherwise fall within the high-risk category, may result in better outcomes.1428 Shevlin (and ors) – Cumulative Traumas and Psychosis: an Analysis of the national Comorbidity Survey and the British Psychiatry Morbidity Survey (Shevlin’s study)1429 1228 This study aimed to estimate the effect of cumulative traumatic experiences on psychosis. 1229 The study was based on two large community samples, one from the USA (the US survey) and one from the UK (the UK survey). 1230 The US survey assessed the lifetime prevalence of nonaffective psychosis (a summary category made up of schizophrenia, schizophreniform disorder, schizoaffective disorder, delusional disorder and atypical psychosis) and depression. Information was elicited from the cohort as to whether they had experienced traumatic events, with participants asked to respond either yes or no to the following questions: 1. You were seriously neglected as a child. 2. You were physically abused as a child. 3. You were seriously physically attacked or assaulted. 4. You were raped. 5. You were sexually molested. 1231 No specific age limit was stated for ‘childhood’ events. 1232 The UK survey adopted a two-phase approach to assess the presence of psychotic disorder. The cohort were asked to respond to five questions with either a yes or no response, namely: 1427 That is, either presenting with attenuated psychotic symptoms, full blown but brief and self-limiting psychotic symptoms or a significant decrease in functioning in the context of a genetic risk for schizophrenia; the ‘high risk prodrome’ as described by Prof McFarlane. 1428 Exhibit P68 at pp 3-5. 1429 Schizophrenia Bulletin vol 34, no 1 pp 193-199, 2008; Exhibit P69. -- 237 of 496 -- [2026] SADC 27 232 1. Serious illness, injury or assault to yourself. 2. Bullying. 3. Violence at work. 4. Violence in the home. 5. Sexual abuse. 1233 The majority of both samples did not experience any traumas and the number of people who experienced cumulative traumas decreased as the number of traumas increased. For the UK survey, the overall weighted prevalence of psychosis was 0.5%, which was slightly lower than that of 0.8% for the US survey. 1234 For both the US and UK surveys, experiencing one trauma was not significantly associated with a diagnosis of psychosis. However, experiencing more than one trauma type was significantly associated with psychosis. 1235 For the US study, the traumas most significantly associated to psychosis were molestation and physical abuse as a child. For the UK survey, sexual abuse was the trauma with the strongest association to psychosis. Serious illness, injury or assault and violence in the home were also statistically significant. 1236 As to the potential mechanisms that may link increased trauma with psychosis symptoms, the author opined that ‘cumulative interpersonal traumas may heighten psycho-somatosensory activation increasing the likelihood of etiologically significant misattributions’.1430 1237 Reference was also made to a proposed Traumagenic Neurodevelopmental Model which suggested that early traumatic/stressful life events may activate the hypothalamic-pituitary-adrenal (HPA) axis, associated with the release of glucocorticoids, which can impair the regulation of the HPA axis if the exposure to trauma was prolonged. It was noted that this process had been implicated in the development of PTSD and ‘may’ account for high rates of comorbid PTSD with psychosis and PTSD as a contributing factor in interactive models of psychosis.1431 1238 The authors noted that a particular limitation of the current study was that there was no specified age limit for traumatic events. They stated:1432 With no indication of trauma onset or the chronology of multiple traumas, no conclusions can be drawn on the developmental impact of trauma or at what point during development multiple traumas increase risk of psychosis symptom formation. In addition, the measure 1430 Exhibit P69 at p 197. 1431 Ibid; Tanskanen (and Ors): Impact of multiple traumatic experiences on the persistence of depressive systems population-based study. Nord J psychiatry, 2004. 1432 Exhibit P69 at p 198. -- 238 of 496 -- [2026] SADC 27 233 of cumulative traumatic experiences used in this study does not account for multiple same trauma experiences or individual differences in the severity of a particular trauma ... 1239 The authors concluded that although the study demonstrated that where appropriate, interventions and treatment could be psychologically formulated and driven, there was no empirical foundation to suggest that trauma was an etiological risk factor for all psychoses, such that different treatment strategies may be required for different psychotic presentations. Varese (and ors) – Childhood Adversities Increase the Risk of Psychosis: A Meta- analysis of Patient – Control, Prospective and Cross-sectional cohort studies (Varese’s study)1433 1240 This study comprised a qualitative review and meta-analysis of a volume of literature to examine the association between adversity and trauma in childhood (under age 18) and the later diagnosis of psychotic disorder, schizophrenia and schizoaffective disorder. The types of trauma included in the study were; parental death as a child, childhood sexual abuse, childhood physical abuse (that is, violent acts leading to physical injury or harm, such as harsh physical punishment), childhood emotional abuse, childhood physical neglect, childhood emotional neglect and bullying.1434 1241 The analysis showed that with the exception of parental death, statistically significant associations were observed between all types of childhood adversity and psychosis.1435 1242 The analysis found that childhood adversity and trauma substantially increased the risk of psychosis with an OR of 2.8. Further, the findings showed that if those risk factors were entirely removed from the population and other factors remained unchanged, the number of people with psychosis would be reduced by 33%.1436 Okkels (and ors) – Traumatic Stress Disorders and Risk of Subsequent Schizophrenia Spectrum Disorder or Bipolar Disorder: A Nationwide Cohort Study (Okkels’ study)1437 1243 This study examining data obtained from Danish case registers focussed on assessing if patients with either acute stress reaction (ASR) or PTSD were at an increased risk of schizophrenia spectrum disorder or bipolar disorder. 1244 The study found that persons with either ASR or PTSD had a significantly increased risk of schizophrenia, schizophrenia spectrum disorder and bipolar disorder, with those risks highest in the first year after diagnosis. Those risks 1433 Schizophrenia Bulletin vol 38, no 4 pp 661-671, 2012; Exhibit P70. 1434 Ibid at p 662. 1435 Ibid at p 665. 1436 Ibid at pp 665-666. 1437 Schizophrenia Bulletin vol 43, no 1 pp 180-186, 2017; Exhibit P71. -- 239 of 496 -- [2026] SADC 27 234 remained significantly elevated after more than five years. This association could not be explained by mental illness in a parent.1438 1245 The findings showed that among environmental exposures, traumatic stress, especially when occurring in childhood or early adulthood, seemed to be an important risk factor. The authors stated:1439 A broad and unspecific range of traumatic experiences seem to increase the risk of severe mental illness, possibly by acting on the genome to shape the adaptability to environmental challenges. 1246 Notwithstanding these findings, it was acknowledged that some studies implied that a disposition to severe mental illness and prodromal symptoms might of themselves increase the likelihood of experiencing trauma.1440 1247 Further, the authors noted that not all individuals who suffered trauma developed either ASR or PTSD. They stated:1441 Thus, our study cannot establish whether trauma without traumatic stress disorder is a risk factor in severe mental illness. Articles relied upon by Prof Nielssen Radua (and ors) – What causes psychosis? An umbrella review of risk and protective factors (Radua’s study)1442 1248 This umbrella review of over 4000 records identified 55 eligible articles published between 1995 and 2017, with a view to investigating the association between potential risk or protective factors and psychotic disorders. Those risk factors included socio-demographic and parental factors, perinatal factors, later factors (including, but not limited to, exposure to various diseases, adult life events, bullying, tobacco use, heavy cannabis use, traumatic brain injury and childhood trauma) and antecedent events. 1249 The review identified 170 putative risk/protective factors. Of those only two, being one socio-demographic factor (black/Caribbean ethnicity in England) and one antecedent (ultra-high-risk state), presented a convincing level of association with psychotic illness. Six factors were highly suggestive evidence for association, none of which included any of the ‘later factors’. There was suggestive evidence for association for nine further factors, one of which was childhood trauma. There was either weak or no evidence of association with psychotic disorders, for all other factors. As to the latter, it was recognised that these results may reflect insignificant data.1443 1438 Ibid at p 180. 1439 Ibid at p 183. 1440 Ibid. 1441 Ibid at p 184. 1442 World Psychiatry, February 2018; Exhibit P72. 1443 Ibid at pp 54-56 and 61. -- 240 of 496 -- [2026] SADC 27 235 1250 These findings were said to corroborate the notion that psychotic disorders (and other mental disorders) can be related to ‘adversities in an individual’s social milieu, whereby environmental exposures during critical developmental periods impact brain, neurocognition, affect, and social cognition’.1444 1251 Relevantly, the authors stated:1445 This study also has some limitations. First, association is not necessarily causation. Reverse causation is a particular concern, and thus establishing the temporality of the association is critical. It is possible that some of the later factors and antecedents are actually characteristics of psychotic disorders themselves or secondary to their appearance ... 1252 Finally, the authors concluded that the relevance of epigenetic risk factors and the interaction between environmental and genetic factors in psychotic disorders, remained to be elucidated.1446 Davis (and Ors)- Can mental health diagnoses in administrative data be used for research? A systemic review of the accuracy of routinely collected diagnoses (Davis’s study)1447 1253 This study compared routinely collected mental health diagnosis data (ie electronic health records/case registers) to a reference standard, to determine its accuracy. 1254 The study found there was a wide variation in the quality of source data, with there being a risk of publication bias. The results were more accurate in terms of a diagnosis of psychotic illness (including schizophrenia) but less satisfactory for diagnoses of anxiety and substance use disorders. 1255 It was noted that research using such data naturally included a bias towards those who recognised a mental health problem, sought help for it or became unmanageable in the community. It was recommended that if diagnostic data was to be used for research purposes, validation of that data should be sought and/or attempted. Jongsma (and Ors)- International incidence of psychotic disorders, 2002-17: a systemic review and meta-analysis (Jongsma’s study)1448 1256 This study sought to investigate the incidence of adult onset psychotic disorders and whether sociodemographic factors or methodological heterogeneity accounted for any observed variation. 1257 Higher incidence rates were reported in register-based or cohort-based study designs rather than first-contact studies. It was noted that registry based studies 1444 Ibid at p 61. 1445 Ibid at pp 62-63. 1446 Ibid at p 63. 1447 BMC Psychiatry (2016); Exhibit R77 at pp 745-755. 1448 Lancet Public Health, Vol 4, May 2019; e229-244; Exhibit R77 at pp 756-771. -- 241 of 496 -- [2026] SADC 27 236 relied heavily on diagnoses made in clinical practice. Although such diagnoses were reliable, first contact studies were often able to include standardised diagnostic assessments, which might have reduced the number of ‘false-positives’, leading to lower reported incidence.1449 Large and Nielssen – Improving the Reliability of the Diagnosis of Post-Traumatic Stress Disorder in Civil Litigation1450 1258 In this article, the authors (who included Prof Nielssen) concluded that notwithstanding PTSD was one of the most frequently diagnosed psychiatric disorders, there was little evidence that it could be reliably diagnosed using an unstructured clinical interview. 1259 Further, as the criteria in DSM-IV-TR required the physician to explicitly link a patient’s symptoms to an event, this effectively usurped the Courts’ role in determining the cause of the alleged symptomology. Saha (and ors) – A Systemic Review of the Prevalence of Schizophrenia (Saha’s study)1451 1260 This review found that there was a wealth of data available to determine the prevalence of schizophrenia, either by reference to the proportion of individuals who manifest a disorder at a specified time, or during a specified period, or during their lifetime. 1261 Based on combined prevalence estimates, the review found no significant difference in prevalence between males and females or between urban, rural and mixed sites, although the prevalence of schizophrenia in migrants was higher than native-born individuals. 1262 The review did not otherwise comment on any association between life events (such as trauma) and the development of schizophrenia. Howes (and ors) – Neuroimaging in schizophrenia: an overview of findings and their implications for synaptic changes (Howes’ study)1452 1263 A review was conducted to summarise findings from the meta-analysis of brain imaging findings in over 50,000 subjects who had either chronic or first- episode schizophrenia or were at high genetic or clinical risk for psychosis. 1264 Those findings showed that in comparison to control subjects, grey matter volumes were lower in patients with chronic schizophrenia, in first episode patients and, to a lesser degree, in people with risk factors for schizophrenia. These differences were typically most pronounced in the frontal and temporal cortices. 1449 Ibid at p 769. 1450 Psychiatry, Psychology and Law, Vol 17, No 1, February 2010; Exhibit R77 at pp 772-780. 1451 PLoS Medicine; May 2005, Volume 2, Issue 5; Exhibit R77 at pp 800-820. 1452 American College of Neuropsychopharmacology; Published Online: 2 September 2022, Exhibit R77 at pp 821-837. -- 242 of 496 -- [2026] SADC 27 237 Recent studies had also found lower levels of a synaptic terminal protein (SV2A) in the frontal and temporal cortices of patients with schizophrenia. 1453 Jauhar (and ors) – Schizophrenia (Jauhar’s study)1454 1265 This study provides an overview of the nature and characteristics of schizophrenia, its prevalence and potential causes. 1266 Schizophrenia is described as a very serious psychiatric illness, with life changing consequences for the approximately 1 in every 100 people affected by it. The illness typically develops in early adult life, with English studiers showing its incidence peaked in the early 20s in men and declined sharply thereafter. 1267 The symptoms of schizophrenia include positive (or psychotic) symptoms, such as delusions, hallucinations and formal thought disorder and negative symptoms (lack of volition, reduced speech output, flattening of affect). Disorganisation in behaviour is a further symptom.1455 1268 Most individuals who develop schizophrenia show prodromal symptoms, lasting from as little as a week, to several years. These symptoms were said to be ill-defined, ranging from indefinable feelings of inner change, through to development of new interests, anger, irritability, anxiety depression, social withdrawal and deterioration in role functioning.1456 1269 As to the cause of the illness, the authors stated that the presence of brain functional abnormality had been established beyond reasonable doubt, with studies focussing on activity levels in the prefrontal cortex and medial frontal cortex. The medial frontal cortex is a key region of the ‘default network’, that is, a set of brain regions that are active at rest but de-activate during performance of a wide range of attention demanding tasks. The authors opined that the possibility existed that schizophrenia ultimately reflected a disturbance of the interaction between task positive networks and the task negative/default mode network.1457 The article also discusses the dopamine and glutamate hypotheses and the impact of events in early life, at birth or in utero.1458 1270 The authors addressed a number of controversies and uncertainties. These included whether there was a link between cannabis use and schizophrenia, with the authors stating that there was strong to overwhelming evidence of such a link, particularly in regard to daily use of high potency cannabis.1459 1271 As to whether childhood adversity was a risk factor for schizophrenia, the authors referred to Varese’s study which reported a significant association between 1453 Ibid at p 831. 1454 The Lancet 2022; 339: 473-68, Exhibit R77 at pp 838-851. 1455 Ibid at p 839. 1456 Ibid. 1457 Ibid at pp 840-841. 1458 Ibid at pp 841-842. 1459 Ibid at p 845. -- 243 of 496 -- [2026] SADC 27 238 various childhood traumas and the later development of schizophrenia. The authors stated:1460 This finding of a link between childhood trauma and later schizophrenia might now need reappraisal. Most of the studies in Varese and colleagues’ meta-analysis used retrospective designs – ie, information about childhood abuse was based on self-report and interviews carried out in adult life. However, this methodology is flawed: a 2019 meta-analysis that compared retrospective measures of childhood maltreatment with prospective ones (eg, official records, contemporaneous interviews with parents, teachers, and the children themselves) reported only a low level of agreement ... between the two ... Nielssen and Dwyer – Substance Induced Psychosis and Bradford-Hill Criteria for Causation1461 1272 The ‘Bradford-Hill’ test uses nine criteria in order to establish evidence of a causal relationship between a presumed cause and an observed effect. 1273 The authors used these criteria to examine the evidence for causation in substance abuse psychosis. The authors noted:1462 There is clearly a strong association between substance use and psychosis, but it is not clear whether substances cause psychosis, the two conditions have overlapping causes, or even a reverse association, in which people with schizophrenia are attracted to cannabis and stimulant drugs ... 1274 The authors found that although substance use was more likely in individuals with a vulnerability to a variety of problem behaviours, they failed to establish a causal relationship. This finding was consistent with a very large number of studies which confirmed the strength of the association between substance use and psychosis but did not establish that substance use caused psychotic illness in the absence of underlying vulnerability.1463 Tandon (and ors) – The schizophrenia syndrome, circa 2024: What we know and how that informs its nature (Tandon’s study)1464 1275 During this study, 50 schizophrenia experts were invited to share their perspectives about what they know about schizophrenia. The review then assembled current established findings about the construct, etiology, pathophysiology, clinical expression and treatment of schizophrenia and posited what they revealed about its nature.1465 1276 Participants were surveyed and three, six hour virtual/interactive colloquia then held. The agenda of the first colloquium included topics entitled, ‘What causes Schizophrenia – Genetics’ and ‘What causes Schizophrenia – 1460 Ibid at p 846. 1461 (2023) 47 Crim LJ 6, Exhibit R77 at pp 852-860. 1462 Ibid at p 852. 1463 Ibid at p 859. 1464 Schizophrenia Research 264 (2024) 1-28; Exhibit R77 at pp 861-888. 1465 Ibid at pp 861-862. -- 244 of 496 -- [2026] SADC 27 239 Environmental and Social Determinants’.1466 Considerable research has been conducted involving a comparison of the DNA genotype of persons with schizophrenia and those of healthy control subjects. Specific genetic risk variants have been identified as being associated with schizophrenia. In addition, about 4% of individuals with schizophrenia have relevant deletions or duplications of relatively large segments of DNA. However, the authors expressed some caution in these findings arising from various matters, including that many of the loci associated with schizophrenia have also been linked to bipolar disorder, autism, ADHD and other psychiatric and non-psychiatric medical conditions.1467 1277 As to environmental factors:1468 • complications in pregnancy and delivery, abnormal foetal growth and development all modestly increased the risk of the baby developing schizophrenia in adolescence or adult life. Although the mechanism remained unclear, this was considered likely to involve subtle damage to the baby’s brain. • there is a slight excess of babies born in late winter/spring, who go on to develop schizophrenia. It is speculated that this may reflect increased exposure of pregnant mothers to respiratory viral infections and/or nutritional deficiencies in winter. • there is an excess of older fathers amongst those babies who develop schizophrenia. • there is a well-established association between physical abuse, sexual abuse and neglect during childhood and an increased risk for subsequent psychosis. Adversities more proximal to the onset of schizophrenia-like psychosis have also been frequently reported. • being born and brought up in urban like settings is associated with an increased risk for schizophrenia-like psychosis. • there is an association between cannabis use and a greater risk of schizophrenia, particularly the use of high potency cannabis. 1278 While the interaction between genes and environmental factors may be of great importance in modifying both the risk and expression of schizophrenia, the review found that the process of precisely elucidating the nature of those interactions was still in its infancy.1469 1466 Ibid at p 863. 1467 Ibid at p 872. 1468 Ibid at p 873. 1469 Ibid. -- 245 of 496 -- [2026] SADC 27 240 1279 Relevantly, the conclusions of the review included that there was no necessary or sufficient etiology, pathology, pathophysiology, clinical features or treatment that fully circumscribes schizophrenia and when all information about etiology and pathology are considered together, ‘there appear intriguing associations, but none are definitive or proven’.1470 Applicant’s mental health at the time of trial Preliminary observations 1280 I have previously set out in detail the circumstances by which this action ultimately proceeded to trial and why the evidence was heard in the unorthodox order in which it was adduced.1471 1281 The applicant gave his evidence via AVL from Broadmoor Hospital. He gave evidence on 22 and 23 March 2023 (on matters relevant to liability) and on matters relevant to medical causation over four consecutive days commencing 5 February 2024. 1282 Prior to the applicant giving evidence in March 2023, the Court was provided with very limited information to demonstrate that the applicant was, in fact, well enough to give evidence, notwithstanding that repeated requests were made by the Court for the applicant to provide such material. 1283 As previously outlined, the commencement of the trial was delayed because of a sudden deterioration in the applicant’s mental health in early January 2023. That deterioration led to him being placed in seclusion in the Farmfield Hospital (meaning he was unable to access the facilities necessary to give evidence) and to his ultimate transfer to Broadmoor Hospital. 1284 The Court was privy to an email sent by Dr Harrison, Consultant Forensic Psychologist, Farmfield Hospital, to the applicant’s solicitors on 20 January 2023, wherein Dr Harrison stated that the applicant had relapsed, was currently psychotic and it was highly unlikely he would be fit to give evidence in February.1472 1285 Arrangements were the put in place to facilitate the applicant’s transfer from Farmfield Hospital to Broadmoor Hospital. Prior to his transfer, senior and junior counsel attended a virtual meeting with the applicant on 15 February 2023. The one-hour meeting was conducted via video-link, with the applicant participating from his ‘cell’, using a computer placed in a small opening of the door to that cell. Based on the applicant’s presentation during that meeting, counsel expressed a view that the applicant was able to give evidence at trial.1473 1470 Ibid at p 876. 1471 Chattaway v Lloyd & Ors [2021] SADC 141; Chattaway v Lloyd & Ors [2022] SADC 152; Chattaway v Lloyd & Ors [2023] SADC 72 at [11]-[58], and what is set forth above under the heading ‘Procedural Background/Delays’. 1472 Exhibit DWJ-35 to FDN 202. 1473 FDN 207, in particular at [9]-[14]. -- 246 of 496 -- [2026] SADC 27 241 1286 Prior to the applicant giving evidence in March 2023, no additional medical evidence was provided to the Court to confirm the present status of his mental health. Prior to the start of the second day of the applicant’s evidence, the Court was informed that Broadmoor was unwilling to allow the applicant to give evidence beyond that day.1474 No reason for this was proffered. Although the applicant’s evidence on liability was completed within that timeframe, this was only achieved by the respondents effectively truncating and fast tracking their cross-examination of the applicant. 1287 The Court made numerous requests thereafter for the provision of documentary evidence to confirm why Broadmoor had refused to continue to make the applicant available to give evidence and whether the applicant would be mentally well enough to return to give evidence in the short term. 1288 The only evidence produced by the applicant in response to these requests was a short letter from Dr Nabi, Consultant Forensic Psychiatrist dated 15 May 2023. Dr Nabi was asked to comment specifically on what, if any, practical issues had arisen to date with the applicant giving evidence and if such issues were again encountered, could they be overcome and how. She stated:1475 The issues have been around Mr Chattaway’s mental state, and whether he is well enough to be taken out of seclusion room and into a meeting room to attend the video link, and the risk he may pose to the staff that are accompanying him. We hope that with a new treatment plan he will be well enough by November to be out of seclusion and the risk to others reduced. His response to the treatment plan is difficult to predict and we will be able to update you closer to the time. 1289 The applicant was not mentally well enough to give evidence in November, necessitating a further delay in the resumption of the trial and him giving evidence on the issue of causation. 1290 The Court was made privy to an email from Dr Nabi dated 10 November 2023, provided in response to a letter from the applicant’s solicitors of that date, enquiring if the applicant was fit to give evidence in the following week and if so, what time for him to give such evidence best suited Broadmoor. Dr Nabi outlined that it was difficult for Broadmoor to provide staff after 9:00pm and suggested a different time would suit them better. She stated, ‘[p]atient is doing much better and would be able to give evidence’.1476 1291 At a Directions Hearing on 15 November 2023, the Court requested the applicant obtain further information from Dr Nabi as to the applicant’s capacity to give evidence. This was to specifically address the likelihood that the applicant would be cross-examined over several days, and the fact the Court had not received any other material, save for that just described, confirming the status of his mental 1474 T 252.1-25. 1475 Exhibit AJK 29 to FDN 234. 1476 Exhibit ‘AJK 50’ to the 20th Kerin affidavit, FDN 260. -- 247 of 496 -- [2026] SADC 27 242 health. The Court was concerned that the same issues that arose in March 2023, would not again be encountered when the applicant’s evidence resumed. 1292 In response, the applicant’s solicitors produced an email from Dr Nabi’s personal assistant dated 17 November 2023 which stated:1477 Nick is in the early days of recovery. While he does have capacity to give evidence, the prolonged nature of the cross-examination will potentially set back his early, tentative steps to recovery. If the court is minded to delay the trial by another 2 months the clinical team would be in support of this. 1293 The applicant returned to give evidence over four days commencing Monday 4 February 2024. The Court did not receive any further information from Dr Nabi or anyone at Broadmoor to confirm the status of the applicant’s mental health and capacity to give evidence, prior to this. 1294 The applicant did not adduce any medical evidence from any treating practitioner to address what, if any, impact the current (or chronic) state of his mental health and/or medication regime, may have had on his ability to accurately recall events from the past and specifically his ability to accurately recall the circumstances of the incident. Medical evidence 1295 The records held by the Farmfield Hospital and the Broadmoor Hospital were subpoenaed by the third and fourth respondents and portions of those records were tendered at trial.1478 Some of that material was provided to Prof Nielssen for comment in his report dated 22 October 2023. The applicant, Prof McFarlane and Prof Nielssen were also cross-examined on aspects of that material. 1296 These records were properly received and admitted as business records pursuant to s 53 of the Evidence Act 1929. 1297 As such, pursuant to s 53(1), those documents are admissible in evidence without further proof and are evidence of a fact stated therein, or any fact that may be inferred arising from those records (whether the inference arises wholly from the matter contained in the record(s) or from that matter in conjunction with the other evidence). Farmfield Hospital records 1298 The applicant arrived at Farmfield on 12 September 2022 after being transferred from James Nash House. 1477 Exhibit ‘AJK 51’ to the 21st Kerin affidavit, FDN 274. 1478 Exhibits R76 at tabs 44-47; Exhibit R79. -- 248 of 496 -- [2026] SADC 27 243 1299 In comprehensive notes made by Dr Mark Harrison, the current clinical challenges were noted. There were ongoing concerns that the applicant remained only partially treated. He occasionally expressed paranoid views and was strongly opposed to his diagnosis and treatment. He repeatedly expressed persecutory and grandiose ideas. He was opposed to treatment by Clozapine, as were his parents. 1300 It was noted that there had been consistent friction between the applicant and his family and the treating team about his mental state. The following was observed:1479 His parents dismissed the teams assessment of residual illness, they will offer alternative theories to explain away symptoms, or suggest that he has simply been misunderstood. The family appear to overemphasise PTSD and traumatic brain injury, although [the applicant] does not complain of symptoms of PTSD .... (my emphasis) 1301 The applicant was noted to have a long history of misinterpreting the behaviour of others as offensive, bullying and victimising. His own intimidating behaviour was said to be a challenge for other patients. It was noted that it was difficult to constructively approach this with the applicant as he externalised blame and was offended at the idea that his actions may play a role.1480 1302 Overall, his behaviour had noted to have declined in recent years. 1303 The following impression was recorded:1481 Treatment resistant-schizophrenia – Partially treated, complicated by poor insight, a reluctance to engage, fear of side effects to treatment, complex family dynamics with prominent denial and collusion. There is a suspected co-morbid Narcissistic Personality structure, which is difficult to accurately assess in the setting of partially treatment psychosis and suspected paranoid and grandiose ideas. (my emphasis) 1304 The applicant was keen for a fresh start at Farmfield but expressed the view that he would only be in hospital for two weeks and would then be allowed to leave. 1305 Unfortunately, the applicant’s mental health appears to have deteriorated upon admission. On 11 October 2022, the applicant was noted to have been hostile and verbally abusive to staff, with allegations that he had threatened to punch a staff member and had threatened to slit his wrists.1482 1306 On 9 January 2023, it is recorded that the applicant confronted another patient telling him to turn his music down. He then began punching the patient in the head and when the patient collapsed to the floor, continued to kick him in the 1479 Exhibit R76 at p 235. 1480 Ibid. 1481 Ibid at p 235. 1482 Ibid at p 233. -- 249 of 496 -- [2026] SADC 27 244 head and body. When paramedics arrived to attend to the victim, the applicant proceeded to assault the paramedics and then punched and kicked out the nursing station glass. He then made his way into the office where he proceeded to punch staff and destroy office items. It was this incident which resulted in him being placed in seclusion at Farmfield.1483 1307 When spoken to about the incident on 10 January 2023, the applicant verbalised that although he felt he may have gone a bit too far by going after the staff members, he felt good about the whole event and was reported as having said:1484 He will probably do it again. He added that the incident does not have anything to do with him relapsing and he does not need any more medication, he believed the attack is not perpetuated by his schizophrenia but likely due to his PTSD. 1308 In a medical note on 24 February 2023, it was noted that the applicant was due for transfer to Broadmoor the following week. He had refused oral Olanzapine for the last four days and presented with a deteriorating mental state. The following was noted:1485 In seclusion, seen responding to presumed auditory hallucinations and describes heads coming out of his leg which sounds much like visual hallucinations but he tends not to want to discuss his abnormal perceptions. He continues to talk to himself and laughs hysterically for brief periods … 1309 The applicant remained in seclusion until his transfer to Broadmoor on 20 March 2023. In a note made earlier on that day, he was described as calm and engaging well with staff. However, the day prior he had been observed to be punching into the air, punching his bed and using the seclusion pillow as a barrier to punch the wall. He had also wrapped a wet towel around his hand to punch the seclusion glass. He had requested a punching bag in seclusion for exercise.1486 1310 A nursing note made at 10:55pm the previous day stated that while in his seclusion room, the applicant was seen to be laughing with unseen stimuli, not engaging and staring at the wall. Active psychosis was noted.1487 Broadmoor Hospital records 1311 The applicant was admitted to Broadmoor Hospital at 2:30pm on 20 March 2023. At that time, he was informed that he would remain in seclusion for the time being, to enable ongoing assessment. 1312 Overnight, he was not observed to display any overt psychotic symptoms. 1483 Ibid at pp 229-230. 1484 Ibid at p 229. 1485 Ibid at p 223. 1486 Ibid at p 263. 1487 Ibid at p 262. -- 250 of 496 -- [2026] SADC 27 245 1313 The fact of the forthcoming court case was noted. In a record authored by Dr Nabi on 21 March 2023, she stated, ‘He appears to have the capacity to give evidence’.1488 1314 The applicant’s attendance to give evidence via video-link was referred to in a nursing note made on 22 March 2023. The nurse wrote:1489 [The applicant] appeared agitated throughout the court case, and was observed shaking his legs repeatedly, staring at members of staff, sitting behind them and looking them up and down at times. [The applicant] also repeatedly sighed and was heard swearing to himself at times during the court case. … 1315 In the early hours of the next morning, the applicant was observed to be sitting on his cube, laughing out loud. During that day, he showed increasing psychotic symptoms, laughing to himself and was seemingly anxious after lunch.1490 1316 Later that night, nurses observed that he was not displaying any overt psychotic behaviours or any immediate risk behaviours. 1317 In a nursing note recorded at 12:40am on 23 March 2023, the applicant was observed to have settled in mood but to be presenting with some odd behaviour, holding his breath for periods and then laughing to himself.1491 1318 Thereafter, the applicant appears to have remained in seclusion until January 2024. 1319 During March and April 2023, the applicant was observed, at times, to be co- operative and polite, but on other occasions, banging or kicking doors, laughing to himself and holding conversations with others who were not there. He was described, on occasions, as ‘very psychotic’.1492 By way of example, a note made on 27 March 2023 stated:1493 Nicholas continues to have some psychotic symptoms, laughing inappropriately or mumbling to self in room. Affect is heavily blunted on most interactions. He remains unpredictable in regards to risk to others. … 1320 While out on association that day, the applicant was noted to have told staff that his favourite sport was ‘beating people up’ and was observed laughing intermittently to himself in a strange way.1494 1488 Ibid at p 299. 1489 Ibid at p 303. 1490 Exhibit R76 at p 303. 1491 Ibid at p 308. 1492 Exhibit R79 at pp 16 and 22. 1493 Ibid at p 13. 1494 Ibid. -- 251 of 496 -- [2026] SADC 27 246 1321 The applicant was noted to have limited insight into his condition, stating, at times, that his mental health was fine.1495 1322 On 22 April 2023, the applicant was recorded as being very disturbed, banging and kicking his door with ferocious force for over an hour and then making a threat to kill a fellow patient. He was upset that a proposed visit from family had been cancelled. He was recorded as continuing to present as ‘floridly psychotic, regularly responding to unseen stimuli’. Later that day he reported increasing distress, kicking the door and stating that nursing staff had interfered with the ‘spirits’. He was assessed as currently experiencing an acute psychotic distress, resulting in an increase in risk to others. Later he threw his breakfast through the door and was verbally aggressive to staff.1496 1323 On 26 April 2023, the applicant was reviewed by Dr Nabi who discussed with him her opinion that he was suffering from signs of psychosis and explained that she felt he needed treatment with Clozapine. The applicant said that he did not want to take that medication and explained what his concerns were. During the review he presented as calm and co-operative and well kempt. He was guarded when discussing his symptoms and did not appear to be thought-disordered. He denied hearing voices but had been observed to be talking to himself and laughing in an incongruent way. Later when talking to a registered mental nurse, he stated that he did not want to take Clozapine and that he would kill himself if staff tried to give him Clozapine.1497 1324 During early May 2023, the applicant’s presentation appeared to be somewhat improved, with longer periods of stability of mood, albeit he was still displaying psychotic symptoms. He expressed an interest in reading and engaging in other activities such as playing the guitar. However, on 10 May 2023, Dr Nabi noted that there had been a deterioration in the applicant’s presentation after stopping oral Olanzapine.1498 1325 Throughout the rest of May 2023, the applicant was observed to remain floridly psychotic.1499 1326 On 24 August 2023, an intervention was organised to enforce Clozapine bloods. During that intervention, six staff members attempted to restrain the applicant to administer the bloods. He responded by throwing punches towards the nursing team and bit one of the staff.1500 1495 Ibid at p 29. 1496 Ibid at pp 33-36. 1497 Ibid at pp 46-48. 1498 Ibid at p 69. 1499 Ibid at pp 70-86. 1500 Ibid at pp 96-98. -- 252 of 496 -- [2026] SADC 27 247 1327 On 29 August 2023, was again restrained to be administered Clozapine. An assessment note made by a nurse stated:1501 Currently experiencing an acute psychotic deterioration in mental state in the context of his diagnosis of treatment-resistant schizophrenia, exacerbated by non-compliance with anti- psychotic medication. 1328 There is then a gap in the notes until January 2024, by which time the applicant had been removed from seclusion. Between 10 January and 17 January 2024, he participated in activities such as table tennis, playing guitar, badminton and attending the gym. He was not noted to be a risk to himself or to others, albeit he was at times still observed to be responding to unseen stimuli and/or laughing at unseen stimuli.1502 1329 On 21 January 2024, the applicant reacted aggressively when he was refused toiletries during suppertime. He was verbally aggressive to staff, resulting in seclusion being initiated. Thereafter, he kicked the door and abused staff, later being apologetic for his outburst. Seclusion was lifted the next day.1503 1330 During the period, 26 January to 30 January 2024, the applicant was noted to have made great progress since commencing on Clozapine, despite him remaining opposed to that medication and with his diagnosis of paranoid schizophrenia. At times he was settled and in good spirits and at other times, frustrated and agitated. He was not presenting with any floridly psychotic behaviour.1504 1331 On 31 January 2024, the applicant was very unwell and subsequently tested positive to both Covid and to Influenza A, as a result of which, he was required to remain isolated in his room. On 4 February 2024, he reported feeling better although he still had a slightly runny nose and cough. His mood was said to be brighter and he did not pose any imminent risk to himself or to others.1505 1332 When the applicant resumed giving evidence on 5 February 2024, he was still in Covid isolation in his bedroom and remained in isolation throughout the duration of his evidence on causation. During lunchtime that day he appeared irritable in mood and informed staff he would not be taking Clozapine that day. He later became agitated when encouraged to take the medication but after several prompts, did so. It was recorded that he did not pose an imminent risk to himself or others.1506 1501 Ibid at p 119. 1502 Ibid at pp 123-128. 1503 Ibid at pp 131-132. 1504 Ibid at pp 136-141. 1505 Ibid at pp 141-146. 1506 Ibid at p 147. -- 253 of 496 -- [2026] SADC 27 248 1333 On 6 February 2024, the applicant was said to be more settled than the previous day. Later that evening he was observed laughing and singing to himself.1507 1334 On the evening of 8 February 2024, that is, the evening after completing his evidence, the applicant was observed responding to unseen stimuli, laughing incongruently and with a highly elated mood. He was not considered to pose an imminent risk to himself or others.1508 Other medical evidence 1335 Both Prof Nielssen and Prof McFarlane gave brief evidence at trial as to their opinion of the impact on the applicant’s mental health and medication on his ability to give reliable evidence. The opinions that they expressed were necessarily limited to their analysis and review of the medical records, as neither had had the opportunity to actually assess the applicant, either in March 2023 or February 2024, when he gave evidence. They had each also read the transcript of the applicant’s evidence given at trial. 1336 Prof McFarlane was cross-examined as to the impact of recurrent psychotic episodes on a person’s ability to recall distant facts. He described memory as a variable phenomena. He stated:1509 A. … I don't think people with a psychotic disorder are any less able to recall their life prior to their psychosis than somebody without psychosis. The psychotic thinking impacts on the laying down and the process of interpreting their environment once they have become unwell and I think that's where the reliability of their memory becomes challenging and equally if they're guarded and paranoid, that might stop them reporting certain information, but I think inherently their capacity to remember their past is not grossly disrupted. That's not part of psychosis. Q. You used the adjective 'grossly', you'd accept the possibility of disruption of memory. A. Once they've become unwell, yes. Q. We rely on the same point, which is the best thing to do is to see whether the history that you obtained from time to time is supported by some other objective material.1510 A. That's correct. 1337 However, Prof McFarlane acknowledged that psychosis could influence memory and could change a person’s ability to recall. Trauma could also influence memory.1511 1507 Ibid at pp 148-149. 1508 Ibid at p 151. 1509 T 1556.23-1557.4. 1510 There is an error in the transcript where the word ‘subjective’ appears instead of the word used, namely ‘objective’. 1511 T 1545.15-22. -- 254 of 496 -- [2026] SADC 27 249 1338 During cross-examination, Prof McFarlane was questioned about what appeared to be marked differences in the history as reported to him by the applicant and other material contained in the medical records. Prof McFarlane noted that at the time of that assessment, the applicant was unwell, and although he may have recorded a certain history from the applicant, the weight he had attributed to it was necessarily influenced by the applicant’s presentation to him at that time. He said:1512 You receive response from somebody but then there is an interpretative process and a questioning process. So, particularly in that second assessment of Mr Chattaway and I was aware that he was psychotic and the factual reality of some of these incidents it was difficult to determine because of him clearly being paranoid and delusional. 1339 He explained that as such, in testing the reliability of what the applicant had told him, he had reviewed the other documents to determine whether his account was consistent with what others had recorded.1513 He gave the following important evidence:1514 Q: Sure. That’s because a patient like Mr Chattaway his conditions, schizophrenia, impair his ability to recall and to report factual materials reliably. A Of some nature, if they are subject to delusional thinking and delusional beliefs, there is certain information he can provide that are (sic) accurate but if there is information that could be in the domains of his delusional thinking the history he gives has to be considered in that context. 1340 In cross-examination, Prof Nielssen was asked if he agreed with Prof McFarlane’s opinion as outlined at paragraph 1336 herein. He said:1515 A. Not totally. I agree in general about biographical memory, the biographical memories of people with schizophrenia isn't grossly impaired in most cases. However, and again as I said in earlier evidence that it's a very variable condition and in some people with more severe forms, there is significant impairment in intellect, in all areas of intellectual function including memory function, spontaneous recall. That would be the first thing I'd say, that there is impairment in memory function with people with schizophrenia that's worse than the general population. Q. That might be speaking generally, but in Mr Chattaway's case, that's not a consideration in this case, applied to him. A. Well, not that kind of impairment, perhaps the - where's there's global impairment in intellectual function, but certainly I'd agree with Dr McFarlane - Professor McFarlane in the sense that psychotic episodes can add information to people's firm memory. … 1512 T 1554.20-26. 1513 T 1554.30-33. 1514 T 1554.34-1555.4. 1515 T 1694.38-1695.26. -- 255 of 496 -- [2026] SADC 27 250 Q. But, what he spoke to you about in 2020 or '19, '21, '22 and '23, could well have been remembered relatively accurately because of that proposition I just put to you. A. Yeah, it could have. It could have been the case that he remembered exactly what happened and exactly what his medical care was, but he chose to elaborate on it and disagree with my reading of the medical records to him. 1341 Prof Nielssen observed that when the applicant first gave evidence in March 2023, the Broadmoor Hospital records demonstrated that he was continuing to experience active symptoms of schizophrenia in the form of auditory hallucinations and persecutory beliefs, as well as impaired self-awareness and emotional regulation.1516 In his third report dated 22 October 2023, he stated:1517 ... the main effect on the reliability of his evidence would appear to be in the modification of his memory of the events that is probably due to the influence of his severe mental illness on the retrieval and reintegration of his memories, and the loss of the ability to reality test his own fixed beliefs after considering contemporary observations, for example, medical records. During my interview of [the applicant] he maintained that he had suffered severe facial injuries and that he was admitted to Intensive Care, despite being told that the medical records did not confirm his account. The discrepancy of his accounts and the objective information suggests that he has developed a false memory of the events and that his evidence about what happened is unreliable. 1342 Prof Nielssen gave further evidence-in-chief to explain what he meant by this. He referred to the fact that the applicant appeared to have developed a fixed and false memory of what had occurred, which did not correspond with other documented evidence. He said:1518 A. Well, given that he was so fixed on it and so fixed in his maintaining that that is what happened and these events are what happened. That he was attacked with a bottle, for example. It seemed that he had - I mean memory, yes, we know from other psychological sciences it's emerged in the last couple of decades, is quite fluid and it's quite easy to create false memories in experimental situations. It's not sort of a video tape that's played back and forth in an accurate way. It's sort of recreated each time from cues and for example, people who have psychotic episodes will, you know, have a lot of new information added to their memory record based on psychotic symptoms, for example, that's inaccurate. Q. So, is it the case that on occasions when Mr Chattaway is having psychotic episodes that that might effect the content of his memory generally. A. Yes, most definitely. Especially given that he lacks self awareness to separate the two. Like some people can clearly see where they had delusional beliefs and resile from those beliefs once they recover but it doesn't seem that Mr Chattaway has that facility despite being, you know, of above average, premorbid intelligence. Q. Is there any way of reliably drawing the line between memories that have been affected and memories that are unaffected. 1516 Exhibit R76 at p 196. 1517 Ibid. 1518 T 1682.21-1683.18. -- 256 of 496 -- [2026] SADC 27 251 A. I mean, the only reliable way of course is with objective. You know documents from the original time versus the person's honest account of what they think happened and I've seen it myself in my own family histories that, you know, my siblings have a different view and that I have one view and then we go to the records and I was wrong. I can acknowledge that for example, as an example of how one could reliably determine it. Applicant’s evidence 1343 When giving evidence in February 2024, the applicant said that he was on a full (700 mg) does of Clozapine, which had a sedative effect on him and therefore affected his memory.1519 He was also taking Tegretol, a mood stabiliser, which slowed him down and made it hard for him to think. These medications were being given to him, at that time, during the evening (as he was giving evidence each morning).1520 1344 The applicant denied that his mental health had any impact on his memory and said that his memory was fine. He denied being mentally ill and said, ‘(m)y mental health now is fine.’1521 1345 The applicant acknowledged that he continued to experience frequent psychotic episodes. He attributed the cause of such episodes to his medication. He said:1522 Q. And is it your evidence that you have frequent psychotic episodes because of the effect of your medication. A. Yes. Q. How frequent. A. On Olanzapine, instantly. That night I'll start having nightmares. It'll affect my actions through the day, and I start to become lucidly psychotic. Q. What does the form of your psychosis take. A. Stress, beliefs about my safety, those sorts of things - which stem from my PTSD, which is why I wouldn't feel safe, because this incident had a domino effect on my mental health, where, especially on medication like Olanzapine, it affects me even worse. 1346 The applicant refused to answer most questions relating to the apparent deterioration in his mental health in early 2023.1523 However, he agreed that in January 2023, he was laughing hysterically and talking to himself. As to what he 1519 T 1334.15-37. 1520 T 1335.13-1336.14. 1521 T 1373.2; T 1375.14. 1522 T 1343.18-31. 1523 T 1345.30-34; T 1350.32-1351.14; T 1352.28-1353.34; T 1355.2-11. -- 257 of 496 -- [2026] SADC 27 252 was laughing about, he suggested it was probably about the low opinion he had of the people who were working at the hospital, which he said ‘is not insane.’1524 1347 The applicant denied having spoken on 20 March 2023 about wanting to be in the military as the Chinese had invaded Australia and claimed what had been written down (in his medical notes) had been twisted in an untrue way. He denied having an episode of active psychosis at that time.1525 1348 However, he agreed that after giving evidence on 22 March 2023, he was observed sitting in his room, on a cube, laughing out loud.1526 He agreed that at the end of April 2023, he was mumbling incoherently, and smiling and laughing in an incongruent way.1527 He wholly agreed that at the end of April 2023, he was expressing delusional beliefs about the government and thought that some of the Broadmoor staff were being raped.1528 1349 The applicant agreed with a proposition that in May 2023, he became non- compliant with Olanzapine and started on Clozapine. This drug was being administered against his wishes. He said, ‘If I didn’t take it they’d beat me up.’1529 1350 Relevantly, the applicant was adamant that he was being treated at Broadmoor for complex PTSD, which he maintained was a condition initially diagnosed by Dr Barry Rowe and later by Prof McFarlane.1530 Closing submissions of the applicant General 1351 Counsel for the applicant made oral closing submissions and in addition relied on the following material: • Written Submissions of the Applicant dated 30 July 2024.1531 • Further Written Submissions of the Applicant regarding Self Defence dated 5 August 2024.1532 • Applicant’s Further Submissions on Duty dated 5 August 2024. These submissions were provided late and well after numerous extended time periods allowed for their filing. These submissions were received and considered by me, in the interests of justice, noting that the third and fourth 1524 T 1352.7-27. 1525 T 1356.4-21. 1526 T 1357.7-10. 1527 T 1363.6-9. 1528 T 1363.15-18. 1529 T 1372.12. 1530 T 1375.20-1376.5. 1531 FDN 327. 1532 FDN 329. -- 258 of 496 -- [2026] SADC 27 253 respondents could not point to any prejudice they would suffer by me doing so.1533 1352 I do not intend to repeat all of the matters raised in these submissions verbatim. Although I have carefully considered all of the submissions made, I will confine my discussion of those submissions to those matters of fact and law which are genuinely in dispute between the parties.1534 1353 I have not taken into account submissions which referred to material which was not, in fact, in evidence.1535 Insofar as the submissions erroneously describe the evidence,1536 I have confined my consideration to the evidence in fact presented. Applicant’s reliability Applicant gave evidence via AVL from Broadmoor 1354 It was submitted that the Court should assess the applicant’s reliability and credibility in the same way as it would any other witness – save and except for the fact that his evidence needed to be considered having regard to the ‘difficult circumstances’ in which that evidence was given, that is, by way of video-link at unusual hours and in the environment of a mental health facility. 1355 At times, due to the quality of the internet connection, it was difficult for the applicant to have a full understanding of what he was being asked and similarly at times, it was difficult for the Court to understand and properly hear his response. In addition, when the applicant gave his evidence as to causation in February 2024, he had been in seclusion as he was suffering from Covid.1537 It was submitted that these were matters that needed to be weighed by the Court in an objective sense when considering the reliability of the applicant’s evidence.1538 Impact of mental illness on reliability 1356 It was submitted that there was ‘no direct evidence’ before the Court to support a finding that the applicant’s presentation as a witness was affected by his psychotic condition. 1357 Insofar as Prof Nielssen had purported to express the opinion that the applicant was likely to be suffering active symptoms of schizophrenia when giving his evidence in March 2023, resulting in some modification of his memory of events,1539 there was insufficient factual basis for that opinion.1540 1533 These submissions have never been filed on the portal and as such do not have an FDN. 1534 My discussion of the submissions of each respondent will be similarly so confined. 1535 For example, FDN 327 at [163], [231], [317] and [330]. 1536 For example, FDN 327 at [120], [149], 241],[253], [262], [312] and [331]. 1537 FDN 327 at [21]. 1538 T 1744.2-1747.7. 1539 Exhibit R76 at p 196. 1540 T 1747.34-36. -- 259 of 496 -- [2026] SADC 27 254 1358 Prof Nielssen relied upon the observations of various nurses and carers made of the applicant during the period he gave evidence, for example, that he was laughing to himself or shaking his legs, to support his opinion. The significance of those observations had not otherwise been the subject of clinical assessment. It was submitted that as such, the significance of these ‘cherry picked’ observations was unknown and no conclusions should be drawn from them in these circumstances.1541 1359 It was further submitted that those aspects of the applicant’s evidence which were relied upon by the respondents as demonstrating a lack of insight and/or mental instability and therefore unreliability, did no such thing. Taken at their highest, some of the examples may have demonstrated the usual degree of fallibility of human memory, and others were simply an acknowledgement by the applicant that at times, he has had delusional thoughts but that he otherwise disagreed that his mental state was affecting his memory.1542 1360 Although it was conceded that both Prof Nielssen and Prof McFarlane gave evidence that someone with schizophrenia may give unreliable evidence (or, put another way, have false memories), it was for the Court, rather than any expert, to determine the extent to which the applicant was a reliable witness, having regard to all of the evidence, including the difficulties referred to at paragraph 1355 herein.1543 1361 As such, there was no proper basis for the applicant to call evidence from Dr Nabi to ‘bolster’ the applicant’s reliability. It was for the Court to assess the applicant’s reliability, not the experts.1544 1362 Further, the Court was reminded that it was Prof McFarlane’s evidence that although a witness with schizophrenia may under-report their symptoms (and therefore be an unreliable historian in that respect), it was important not to then jump to the conclusion that the witness’s capacity to remember their past was grossly distorted. It was submitted that Prof McFarlane’s evidence should be accepted, namely, ‘… I don’t think people with a psychotic disorder are any less able to recall their life prior to their psychosis than somebody without psychosis ...’.1545 It was submitted this evidence told against a finding that the applicant’s mental health of itself had caused impairment to his memory, rendering his evidence unreliable.1546 1541 T 1754.6-1756.36. 1542 T 1760.31-1762.31. Noting further that these examples related to evidence given by the applicant in February 2024, not March 2023 and were therefore not matters relied upon by Prof Nielssen when expressing his opinion at p 196 of Exhibit R76. 1543 T 1748.28-1750.27. 1544 T 1753.24-27. 1545 T 1556.23-26. 1546 T 1766.35-1768.4, FDN 327 at [29]. -- 260 of 496 -- [2026] SADC 27 255 Impact of trauma on presentation 1363 The Court was reminded as to the severity of the injury sustained by the applicant and its resulting trauma. This was a life changing incident for him. 1364 It was submitted that therefore it was not unexpected that the applicant’s behaviour during his evidence would reflect the fact that he was suffering from poor mental health and the effects of an onerous medication regime. He was facing one of the people who was responsible for his injuries during trial and being cross- examined at times by that very person. Insofar as the applicant’s behaviour was ‘unusual’ at times, this could be explained on that basis and was not otherwise indicative of any alleged shortcomings in either his reliability or credibility. 1365 By way of example, during cross-examination by Mr Lindsay, there were occasions when the applicant smiled and laughed at Mr Lindsay, conduct relied upon by the respondents to demonstrate his instability and therefore unreliability.1547 Counsel for the applicant submitted that this behaviour was simply a product of the applicant’s anger and frustration at the process and indicative of arrogance, rather than mental instability.1548 Potential inconsistencies 1366 Insofar as there was any ‘minor inconsistency’ in the applicant’s recollection of the party and, in particular, the precise circumstances of the incident and its immediate aftermath, this was said to be explicable on the basis of the ‘head injury’ sustained by him.1549 1367 Where it was alleged that there were inconsistencies in the applicant’s evidence and other out of court statements purportedly made by him, those out of court statement had not been admitted by the applicant and there was insufficient evidence from which the Court could be satisfied of the accuracy of the words, apparently attributed to him from time to time, in order to use those purported inconsistencies to draw adverse conclusions as to reliability.1550 Consistency of account 1368 The truthfulness and accuracy of the applicant’s evidence was said to be supported by contemporaneous notes and narratives consistent with his version, including what he said to ambulance officers and hospital staff, and to others, immediately after the incident. 1369 Not only had his version of the incident, and what occurred in the lead up to it, remained essentially consistent throughout, but it was also said to have been corroborated as to critical aspects by what Owen told the police in his statement 1547 For example, at T 1359.1-16. 1548 T 1757.33-1759.8. 1549 FDN 327 at [23]. 1550 Ibid at [27]. -- 261 of 496 -- [2026] SADC 27 256 made only weeks after the incident and the evidence of A/Prof Pennington as to the likely cause of his physical injuries.1551 1370 It was submitted that the applicant’s evidence was coherent, reliable and generally consistent, such that it should be accepted and form the basis for the factual findings made. Factual findings as to the party and the incident 1371 It was submitted that the Court should accept the applicant’s evidence about the party generally and in particular, should find that: • the party was intended to occur from 4:00pm to midnight during which alcohol was freely consumed by young guests including those aged 17; • the number of attendees at the party far exceeded the number contemplated; • the hosts provided alcoholic drinks in eskies for the guests to consume, in addition to any drinks guests brought themselves; • there were no controls placed over who was able to attend the party, what they brought in or how much they drank; • the young guests at the party were intoxicated, with girls vomiting in the bathroom and people ‘behaving in an intoxicated manner outside’; • at least one attendee, Lloyd, was known to have a reputation for anti-social behaviour including becoming intoxicated and starting fights at parties; • the adults at the party played virtually no supervisory role, with ‘policing’ activities left to Owen and Kelly. Instead, the adults spent most of their time inside, drinking wine and champagne; • there was a conversation between Owen and both Lloyd and Dunn-Lawless, of the type described by him. Ms Dansie was present for part of that conversation;1552 • later, the applicant went to urinate in some bushes in the backyard near the fence. As he walked past a table located on the grassed area of the backyard, Lloyd and Dunn-Lawless made derogatory comments about others at the party, which prompted the applicant to say to them, ‘You should leave’; • shortly thereafter, while the applicant was urinating in the bushes, he was pushed into the fence by Lloyd and/or Dunn-Lawless; 1551 See further submissions as to this evidence below. 1552 Noting Ms Dansie is incorrectly referred to as the Fourth Respondent throughout FDN 327. -- 262 of 496 -- [2026] SADC 27 257 • Lloyd then struck the applicant in the face with a champagne bottle; • Dunn-Lawless then struck the applicant in the face with a beer bottle; • the applicant was further struck by both Lloyd and Dunn-Lawless; • the applicant was rendered disorientated, bleeding from his face and fearful of further injury; • immediately thereafter Lloyd and Dunn-Lawless left the area and left the premises via the driveway; and • the applicant struggled to make his way from the fence to the grassed area and was then assisted onto a chair in the driveway by Dechlan Heames. Owen’s evidence 1372 The Court was urged to reject Owen’s evidence as being unreliable and tailored to support his parents. Instead, it was suggested that what Owen told the police about his discussion with Lloyd and Dunn-Lawless earlier during the party, and his observations generally but specifically before the incident, should be accepted. It was submitted that what Owen told the police on these issues was consistent with the applicant’s evidence. That is, the Court should find, consistent with Owen’s police statement, that: • Owen deliberately sought out both the applicant and Dechlan Heames to go with him to speak to Lloyd and Dunn-Lawless about their attendance at the party apparently uninvited, rather than them simply already being with him when this occurred; • Owen had seen Lloyd get into fights at other parties and warned him not to get disgustingly drunk, because of a concern he would behave aggressively if he did; • immediately before the incident, Owen saw the applicant go around the corner to the lemon trees, and then saw Lloyd follow him about three to four steps behind him; • about 10 seconds later, Owen saw Dunn-Lawless run to where the applicant and Lloyd had gone; • about two minutes later he saw Lloyd and Dunn-Lawless heading to the gate in a hurry. He then saw the applicant being helped into a chair with blood streaming from his nose and mouth onto his shirt; -- 263 of 496 -- [2026] SADC 27 258 • Lloyd and Dunn-Lawless returned to the party at about 12:30am and spoke to Owen out the front of the house, during which they had the discussion as described in Owen’s statement;1553 and • that Owen had never previously seen the applicant be violent or aggressive. 1373 The Court was urged to reject Owen’s evidence that he had told this version of events to assist the applicant, as it had become the narrative of what had occurred, rather than representing what he had, in fact, observed. 1374 The Court was reminded of the evidence given by Mr Pipinias as to the circumstances in which Owen’s statement was made. It was submitted that it was inherently unlikely that Owen would lie about his observations to police after swearing he was telling the truth and knowing of the seriousness of the matter. Even if he had lied then, how could Owen now know what was a genuine memory of what he had seen and/or what he had been told by others as to the narrative. 1375 Further, if Owen was simply telling the police about the ‘narrative’, why not mention the use of bottles? And how was it that salient features of the account matched those of the applicant? It was submitted it was much more likely that what Owen told the police was true and his evidence, insofar as it was inconsistent with his earlier statement, was fabricated for his own or his parents’ interests.1554 1376 It was submitted that the Court should reject Owen’s evidence at trial as it was self-serving, inconsistent and tailored or reframed. During his evidence, Owen had refused to make concessions that ought to have been made and despite claiming to have a good memory of events, his evidence in cross-examination demonstrated the contrary.1555 Conversely, it was submitted that what was in Owen’s police statement:1556 ... represents the most likely unbiased and truthful account of what led to the Applicant’s injuries, and was given at a time when it was likely fresh in memory and free from bias and memory loss through the effluxion of time. Expert evidence – bottle/s or fist/s? 1377 It was submitted that A/Prof Pennington’s evidence corroborated the applicant’s version of how the incident occurred. A/Prof Pennington was a very experienced plastic surgeon, whose evidence was tested under cross-examination and essentially unchallenged insofar as no other expert, expressing any contrary opinion, was called to give evidence.1557 1378 In this respect, although Prof David’s letters and statement were in evidence, his opinion had not been similarly tested in cross-examination and further, he 1553 Exhibit P9 at [13]. 1554 FDN 327 at [54]-[59]. 1555 Ibid at [63]. 1556 Ibid at [86]. 1557 Ibid at [93]-[96]. -- 264 of 496 -- [2026] SADC 27 259 ‘appears to have changed his view as to causation’. Notwithstanding the ‘small’ clinical advantage Prof David may have had, the Court was urged to give little, if any weight to Prof David’s final opinion, as expressed in his statement, in such circumstances.1558 Dunn-Lawless’ evidence 1379 The Court was urged to reject Dunn-Lawless’ evidence as being self-serving, unreliable and delivered ‘with a considered air’. 1380 It was submitted that the evidence given by both Dunn-Lawless (and Ms McCallum) as to the circumstances of the incident was ‘in direct conflict’ to not only the applicant’s evidence, but the circumstances as outlined in Owen’s police statement, and the evidence of A/Prof Pennington as to how the applicant came to be injured. As such, it was inherently unlikely that the applicant’s injuries were caused by one untrained blow, with a fist, by Dunn-Lawless, as claimed by him. 1381 It was submitted that a much more likely explanation was that the applicant’s injuries were caused by multiple blows from both Lloyd and Dunn-Lawless, using a bottle and/or fists. 1382 Critically, Dunn-Lawless had a specific recollection of Lloyd drinking from a beer bottle and there being champagne type bottles on the table, consistent with the applicant’s claims that such bottles were used against him. In addition, both Dunn-Lawless and Ms McCallum gave evidence that Lloyd followed the applicant to the bushes to urinate. It was submitted that this behaviour was odd, if the earlier ‘bear hug’ had occurred (as claimed by Dunn-Lawless). It was submitted that it was much more likely that he followed the applicant to physically engage with him in response ‘to earlier interactions between the parties’ in a vulnerable position in the dark area of the back yard.1559 Ms McCallum’s evidence 1383 Dunn-Lawless’ evidence was said to be ‘strangely consistent’ with that given by Ms McCallum, ‘with only minor or inconsequential differences between them’. In such circumstances, it was submitted the Court should be cautious to accept either witness’s evidence, in circumstances where Ms McCallum had been a close friend of Dunn-Lawless (and remained a Facebook friend of Lloyd’s) such that she could not be considered ‘independent’. 1384 The Court was asked to carefully consider whether Dunn-Lawless and Ms McCallum had colluded together to present the same version of events, or whether either witness’s evidence was contaminated by the other, noting that Ms McCallum had been in Dunn-Lawless’ company immediately after the incident and must have heard from him, at that time, as to his version of events and where 1558 Ibid at [101]-[103]. 1559 Ibid at [87]. -- 265 of 496 -- [2026] SADC 27 260 Dunn-Lawless had been privy to a witness statement made years ago by Ms McCallum.1560 1385 It was submitted that Ms McCallum’s evidence should otherwise be rejected as it was contradicted in certain key aspects by the evidence of Dunn-Lawless (as to how they left the party) and by that of both Owen and Dunn-Lawless insofar as she was definite that she did not go back to the party.1561 Her recollection that Owen had made it, ‘abundantly clear’ that they should leave the party was also contrary to Owen’s evidence on that topic.1562 Other lay evidence 1386 Insofar as it may be suggested that the applicant’s evidence as to certain aspects of the party was unsupported by the other evidence, it was submitted that much of that evidence was from witnesses who had a direct interest in the outcome of the proceedings. 1387 It was submitted that both Mr Stankiewicz and Ms Dansie gave their evidence in a ‘pompous, arrogant and self-serving’ manner, such that the Court should doubt the reliability of their evidence. 1388 Specifically, it was submitted that the Court should reject Ms Dansie’s evidence that it was she, rather than Mrs Chattaway, who insisted an ambulance be called. It was submitted that it was much more likely that when Ms Dansie realised an underage person had been drinking and then injured at the party at her home, she would not have wanted to attract the undue attention of the authorities, rather than a concerned mother not be insistent that her injured son receive the best treatment. In addition, Ms Dansie’s demeanour at the time of the triple zero call was emphasised, including the fact she had sworn at guests during the call, whereas Mrs Chattaway was described as sounding calm and simply seeking what information she could as to what had occurred. 1563 1389 It was submitted that both the third and fourth respondents and their immediate family must have discussed the circumstances of the party and the incident many times since the event, such that their recollections were likely affected by conscious or unconscious bias and/or that this gave rise to the potential for collusion or contamination. The Court was urged to be careful so as to not be overborne by seemingly consistent evidence from a group of people who had a common interest in the outcome. It may be that such the witnesses genuinely 1560 Noting that statement was not in evidence. 1561 Contrary to this submission, there was no evidence that Ms McCallum ever returned to the party (or that she was standing with Lloyd and Dunn-Lawless when they spoke to Owen, on the road, outside of the party, after the incident). 1562 FDN 327 at [81]. 1563 Ibid at [125]. -- 266 of 496 -- [2026] SADC 27 261 believe they are telling the truth but are mistaken due to their memory being contaminated.1564 Liability of the second respondent 1390 In his opening address, counsel for the applicant outlined the claim against Lloyd and Dunn-Lawless as being in assault and battery, without any specific reference to the alternative claim in negligence, as pleaded. It was noted that by his Defence, Dunn-Lawless had already admitted having struck the applicant, albeit in self-defence. 1391 In his closing address, counsel for the applicant did not specifically address the Court on the law as to assault and/or battery, nor as to the legal components of any (alternative) claim in negligence against Dunn-Lawless. However, no issue was taken as to the law as to self-defence insofar as it had otherwise been outlined in the Written Submissions of Second Respondent.1565 1392 It was submitted that if the Court accepted the applicant’s version of the incident and what occurred immediately prior to it, there was no basis upon which the second respondent could make out the defence of self-defence. 1393 It was further submitted that the only way the Court could be satisfied that Dunn-Lawless acted in self-defence would be if it accepted a version of the facts which involved a partial acceptance of the evidence of the applicant and a partial acceptance of the evidence of Dunn-Lawless.1566 Counsel submitted that if the Court accepted Dunn-Lawless’ version, then ‘there’s no basis for making findings in the particular circumstances regarding self-defence’.1567 When asked to better explain that submission, counsel focussed on the fact that Dunn-Lawless maintained there was only one moderate punch thrown, and submitted that if the Court made such a finding then ‘it’s difficult to see how the particular injuries that were alleged to have been suffered by Mr Chattaway were suffered’.1568 1394 When asked if the applicant conceded that the defence was available if the Court made findings consistent with Dunn-Lawless’ evidence, counsel made the following submission:1569 MR OWER: No, I don't necessarily make that concession, but what I say is that if your Honour makes that finding that that's all Mr Dunn-Lawless did, it may be that the matter there ends for Mr Dunn-Lawless, in that while we would say there was an assault and a battery, he could not be said to have been the cause of the particular injuries. So while there might still be room there 1564 Ibid at [128]-[132]. 1565 FDN 321 at [154]-[168]; T 1813.26-36. 1566 T 1809.28-31. 1567 T 1810.3-5. 1568 T 1811.8-10. 1569 T 1812.9-18. -- 267 of 496 -- [2026] SADC 27 262 to formally consider the issue of self-defence, there is very little scope for it in the particular circumstances. 1395 In the applicant’s further written submissions on this topic, the Court was urged to reject Dunn-Lawless’ version (of one punch) as being unsupported by the medical evidence.1570 1396 It was submitted that ‘if self-defence was available’, Dunn-Lawless’ response was excessive, such that the defence was unavailable.1571 1397 In addition, it was submitted that when Lloyd and Dunn-Lawless were asked to leave the party, at the outset, ‘they should have left creating a reason why self- defence should not be available.’1572 Liability of the third and fourth respondents 1398 In his Written Closing Submissions, the applicant submitted that in the circumstances of this party, the third and fourth respondents could have taken, but did not take, reasonable and simple precautions, which if taken, on balance, would have prevented the incident from occurring, such that they were negligent.1573 1399 Specifically, it was submitted that given the number of guests and the fact that guests were underage, the third and fourth respondents had breached the duty of care they owed to their invitees, including the applicant, by failing to place controls over who attended the party, how much or what alcohol was brought in and then consumed by guests (including underage guests) and in failing to properly supervise the party. It was submitted that the incident could have been prevented by the taking of reasonable steps such as: • checking guest attendance at the door; • inspecting the eskies; and • more regular and permanent patrolling outside by adults. 1400 Counsel for the applicant articulated the duty of care owed by the third and fourth respondents as being a responsibility ‘to prevent there being a fight in the particular circumstances.’1574 1401 Counsel acknowledged that the general rule, as articulated by Dixon J in Smith v Leurs, was that ‘one man is under no duty of controlling another man to prevent his doing damage to a third.’1575 1570 FDN 329 at [8]-[9]. 1571 Ibid at [4]. 1572 Ibid at [6]. 1573 FDN 327 at [138]-[141]. 1574 T 1792.17-18. 1575 (1945) 70 CLR 256 at [261]-[262]. -- 268 of 496 -- [2026] SADC 27 263 1402 However, it was submitted that, consistent with the observations of Gleeson CJ in Modbury Triangle Shopping Centre v Anzil (Modbury Triangle),1576 and, more recently, the Supreme Court of Queensland Court of Appeal in Ryan and Ryan v Dearden and Taylor (Ryan),1577 there was an exception to that rule, in circumstances where a special relationship existed, thus giving rise to a duty to control another’s actions. 1403 It was submitted that a special relationship existed here.1578 The third and fourth respondents had the capacity to control their guests and their failure to do so constituted a breach of their duty of care to the applicant. Put another way, in the circumstances of this case, it was submitted that the third and fourth respondents had a positive duty to act to prevent harm to the applicant from the criminal conduct of Lloyd and/or Dunn-Lawless by exercising an appropriate degree of supervision.1579 1404 It was submitted that on all the evidence, the incident (or fight) lasted for ‘a few minutes’. It was submitted that had there been a degree of supervision or control from the third and/or fourth respondents, one would expect they would have immediately interposed to stop the fight, the moment that fight became apparent. 1405 As to when on the facts of this case, the fight became apparent, counsel submitted:1580 Well, it didn’t, because of course there was no degree of supervision … when it should have become apparent is on the first shove [of the applicant into the fence] … And from that moment on, with each increasing step of the fight, whether it took two minutes, five minutes or 15 minutes, that duty was imposed to continually then intervene and exercise a degree of control … 1406 It was submitted that this could have been as easy as the fourth respondent simply attending and saying, ‘Stop it. Hey what are you doing’.1581 1407 It was submitted that the fact the fight did not become apparent to anyone was due to the breach of duty by the third and fourth respondents:1582 The reason they didn’t see anything happening is because they weren’t properly exercising their duty by having a reasonable degree of supervision, (a) sitting outside and observing this group of inebriated teenagers behave. 1576 (2000) 205 CLR 254 at [26]. 1577 [2023] QCA 20 at [18]. 1578 Whereas no such special relationship existed in Ryan. 1579 T 1796.25-1797.6; T 1801.9-12. 1580 T 1801.33-1802.11. 1581 T 1802.14-15. 1582 T 1802.25-29. -- 269 of 496 -- [2026] SADC 27 264 1408 The party was in an ordinary suburban backyard. As such, it was submitted that one person maintaining a reasonable degree of lookout would have observed the fight and then prevented it from escalating to the point that bottles were used.1583 1409 The Court was asked to distinguish the facts of this case from that in Parissis & Ors v Bourke (Parissis)1584 as in this case, there was an element of control available to the third and fourth respondents over the activity which ultimately took place and caused the harm. That element of control was no more than supervising and stepping in to stop fights from occurring on the premises, in circumstances where it was reasonably foreseeable that there would be a fight between drunken teenage boys.1585 The mere fact the reasonably foreseeable behaviour was criminal did not preclude the imposition of a duty of care per se.1586 1410 The applicant’s submissions both as to the scope of any duty of care owed and the alleged breach of duty, were expanded upon in the Applicant’s Further Submissions on Duty. 1411 The applicant submitted that as Lloyd was a known troublemaker, who would get drunk and start fights at parties, the third and fourth respondents as the legal hosts of the party had a legal responsibility for the safety of all party guests which extended to a duty to remove Lloyd from the premises. They had breached that duty.1587 1412 It was submitted, that the following (additional) steps ought reasonably have been taken by the third and fourth respondents, to prevent the incident, but were not:1588 • the provision of a written invitation together with a signed consent form authorising the consumption of alcohol for those under 18, including emergency contact numbers for the parents of those guests under 18; • a pre-agreed strategy to be adopted (and then implemented) as to how to deal with gate crashers; • an assessment ought to have been conducted of the toilet facilities being utilised by the male guests (ie the bushes) and that be deemed unsafe; • more adults should have been on site to properly supervise the party, given the number of invited guests; 1583 T 1802.32-1803.34. 1584 [2004] NSWCA 373. 1585 T 1805.26-1807.6. 1586 T 1807.23, adopting the reasoning in Modbury Triangle. 1587 Applicant’s Further Submissions on Duty at [2]-[7], apparently relying on Bragg v RSL [2008] SADC 130. 1588 Ibid at [8]-[25]. -- 270 of 496 -- [2026] SADC 27 265 • the hosts ought to have completed an SA Police Party Safe Notification Form, which would have alerted them to the potential risks and appropriate safeguards to adopt;1589 • a manned gate should have been set up at the carport to prevent the entry of uninvited guests, who could then be turned away; and • it should not have been left to Owen to make the decision to allow Lloyd, a known troublemaker, to stay. The hosts should have overruled Owen’s decision, consistent with their desire that only persons of good character attend the party. Medical causation 1413 The applicant provided both written and oral submissions on the issue of ‘medical causation’.1590 1414 The applicant’s solicitors emphasised the evidence given by the applicant and Mr and Mrs Chattaway, which was said to support a finding that the applicant was, apparently, functioning well from both an academic, social and sporting perspective prior to the incident. He had performed well in his Year 12 studies, exceeding all expectations. He had a large group of friends and attended social functions such as the ‘Blue and White’. He played a variety of sports and had excelled in rowing. It was argued that there was no evidence to support a finding that the applicant was on the pathway to schizophrenia in any event, prior to the incident. 1415 It was submitted that, irrespective of how the applicant’s injuries were sustained in the incident, the fact was, he had suffered significant facial fractures, resulting in the need for surgery and ongoing issues such as a partial loss of peripheral vision and partial loss of taste and smell. 1416 The Court was urged to accept the applicant’s evidence, supported by that of his parents, that in the immediate weeks after the incident, the applicant’s personality changed. He lost confidence, he did not want to socialise, preferring to stay at home. The applicant was fearful of encountering the assailants and of being further assaulted. 1417 It was in this context that a decision was made for the applicant to travel overseas to China to study –to remove himself from the environment and to recover from the physical and emotional impact of the incident, rather than commencing his studies at UniSA as had been anticipated. 1418 It was submitted that the applicant’s evidence supported a finding that while he was in China, his psychiatric condition further deteriorated, thus proving a 1589 There was no evidence of any such Form in evidence, nor any examination of any witness about such a Form. 1590 As to the written submissions see FDN 327 at pp 32-55. -- 271 of 496 -- [2026] SADC 27 266 temporal connection between the incident and the subsequent development of both PTSD and schizophrenia. 1419 The Court was reminded of the applicant’s evidence that while in China, he spent a period of time ‘homeless’, couch surfing and otherwise was not in a good state of mind.1591 1420 It was submitted that the Court should accept the evidence of Mr and Mrs Chattaway, that when the applicant returned from China, he was dishevelled. His behaviour was such that they thought it necessary he be referred to a psychiatrist as soon as possible, ultimately resulting in the referral and examination by Dr Rowe in late April 2012. Thereafter, there was a further deterioration in the applicant’s psychiatric condition, ultimately leading to the first psychiatric admission in October 2012 and the diagnosis of schizophrenia. 1421 It was submitted therefore that the evidence demonstrated that the applicant was a well-functioning individual prior to the incident and a completely changed individual thereafter, which of itself lent support to the expert opinion of Prof McFarlane as to the causal connection between the incident and the subsequent development of schizophrenia. 1422 The applicant emphasised the two alternative hypotheses advanced by Prof McFarlane. That is, either that the incident had led to the applicant developing PTSD which had then caused the applicant to develop schizophrenia or alternatively that the trauma of the incident itself had caused the schizophrenia. 1423 As to the first hypothesis, the Court was urged to accept Prof McFarlane’s evidence that Dr Rowe’s inability to diagnose the applicant as suffering from PTSD in May 2012, was as a result of either Dr Rowe failing to properly question the applicant in terms of his symptomology by reference to criterion B and/or the applicant being reluctant to fully disclose his symptoms, being a product of his psychiatric illness.1592 1424 The Court was urged to prefer the evidence of Prof McFarlane, that in fact the applicant was suffering symptoms which fulfilled criterion B as at May 2012, such that Dr Rowe ought to have made the diagnosis of PTSD at that time. 1425 It was submitted that Prof McFarlane’s opinion was supported by other evidence, namely that of Dr Kutlaca who had diagnosed a PTSD and Dr Jasoria, who, it was submitted, despite extensive cross-examination, had maintained that a diagnosis of PTSD was appropriate.1593 1591 FDN 327 at [161]-[162]. Noting the material upon which the submissions at [163]-[167] were made were not in evidence. 1592 FDN 327 at [311]-[316]. 1593 Ibid at [243] and [252]-[253]. -- 272 of 496 -- [2026] SADC 27 267 1426 The Court was therefore urged to find that in fact the applicant did suffer a PTSD as a result of the incident and that he was suffering from a PTSD prior to his subsequent development of schizophrenia. 1427 Insofar as it may be suggested by the respondents that the symptoms said to form part of the diagnosis of PTSD may have been indicative of the applicant being in the prodrome for schizophrenia, the applicant relied on the evidence of Dr Rowe, that any prodromal period commenced in or about August 2012 and not prior to that.1594 1428 The Court was urged to accept the evidence of Prof McFarlane and to reject the evidence of Prof Nielssen for a variety of reasons. 1429 It was submitted that Prof McFarlane was a pre-eminent expert in the area of PTSD with expertise which went way beyond that of Prof Nielssen.1595 1430 It was submitted that Prof McFarlane had given his evidence in a considered and thoughtful manner and had produced other materials which substantially supported his opinion (for example the articles authored by Chen and Okkels.1596 1431 The Court was urged to accept the evidence given by Prof McFarlane as to a scientific basis for causation of schizophrenia from PTSD.1597 1432 As to Prof McFarlane’s alternative hypothesis, it was submitted that irrespective of whether the applicant did develop PTSD, there was strong support for Prof McFarlane’s evidence that trauma of itself, resulting in symptoms of anxiety and depression, placed the applicant in a ‘high risk category for schizophrenia’.1598 1433 It was submitted that the Court should reject the evidence of Prof Nielssen on two specific bases. The first was that there was ‘no true evidence’ to support Prof Nielssen’s opinion that the applicant suffered a genetically determined neurodegenerative disorder which was not related to the incident. The second was that the Court should reject the criticisms of Prof McFarlane’s evidence as made by Prof Nielssen, as being unsupported, having regard to the medical literature relied upon by Prof McFarlane. 1434 The applicant submitted that the Court should not accept Prof Nielssen’s opinion that the applicant was suffering symptoms of prodromal schizophrenia prior to the incident. There was very limited evidence to support this opinion. The applicant’s ability to engage in a full range of academic, social and sporting activities in the years prior to the incident, told against such a finding. 1594 FDN 327 at [277], noting that the evidence given by Dr Rowe to this effect was qualified by way of the responses given by him in cross-examination at T 1435.14-32. 1595 FDN 327 at [295]. 1596 Ibid at [289] and [301]. 1597 Ibid at [318]-[319]. 1598 Ibid at [290]-[291]. -- 273 of 496 -- [2026] SADC 27 268 Prof Nielssen was the only doctor who had examined or treated the applicant who held such an opinion.1599 1435 In oral submissions made by Senior Counsel for the applicant, it was submitted that if the Court was unable to accept sufficient evidence to find that there was an inevitable neurological course to chronic schizophrenia in the applicant at the time of the incident, then the factual foundation for Prof Nielssen’s opinion fell away.1600 1436 It was submitted that there was no evidence to support that opinion or indeed, any evidence to support a finding that the applicant had a pre-existing genetic predisposition to developing schizophrenia. It was submitted that the assumptions made by Prof Nielssen in expressing this opinion, were ‘utter speculation, and in the most not made out’.1601 1437 As such, it was submitted that this was not a case where there were in fact two competing experts, rather the Court should simply dismiss Prof Nielssen’s opinion as otherwise being unsupported by the facts. 1438 In this respect, it was submitted that Prof Nielssen had erroneously referred to medical literature to support the views that he had expressed as ‘expert reports’ and dismissed those reports as providing any appropriate evidentiary basis for Prof Nielssen’s opinion. Senior Counsel submitted that in contrast, Prof McFarlane had based his opinion not only on his own clinical judgment arising from his experience but his review of the literature. It was submitted that the Court should accept Prof McFarlane’s evidence that there was a solid medical foundation to establish causation between an assault in the circumstances of the incident and the onset of both the PTSD and schizophrenia.1602 1439 The Court was urged to reject the ‘overly simplistic statements’ made by Prof Nielssen, criticising Prof McFarlane’s opinion.1603 There was, contrary to Prof Nielssen’s evidence, an extensive body of research which supported Prof McFarlane’s conclusions. As such, the Court should prefer and accept Prof McFarlane’s evidence that there was no evidence to support a finding that the applicant had any genetic predisposition to prodromal schizophrenia and no evidence that he was suffering any prodromal symptoms prior to the incident.1604 1440 Senior Counsel for the applicant in particular highlighted the evidence given by Prof McFarlane wherein he agreed with the proposition put to him in cross- examination that although he had attributed weight to the incident in terms of ‘causation’, there may have been any other number of events that might have 1599 Ibid at [327]-[331]. 1600 T 1781.17-22. 1601 T 1783.19-20. 1602 T 1784.30-38. 1603 T 1786.20-23. 1604 T 1788.1-29. -- 274 of 496 -- [2026] SADC 27 269 ‘triggered’ the schizophrenia.1605 Senior Counsel submitted that there was no other event that could be said to have triggered the development of the applicant’s schizophrenia. There was no evidence of prodromal schizophrenia prior to the incident and no other risk factors that had been identified that was sufficient to give rise to the condition. It was submitted that the very fact that there may have been other events that hypothetically triggered it if they had occurred, was irrelevant.1606 1441 The Court was urged to accept the evidence of Prof McFarlane and find that there was a causal link between the incident and the development of the applicant’s schizophrenia. Closing submissions of the second respondent General 1442 Dunn-Lawless was represented by counsel during Closing Submissions. 1443 Counsel for Dunn-Lawless made oral closing submissions and in addition relied on the following material: • Written Submissions of Respondent dated 19 June 2024;1607 and • Second Respondent’s Reply Submissions dated 19 August 2024.1608 Factual findings – the incident 1444 Dunn-Lawless was described as a witness of candour, who had made very substantial concessions against his interests, thus supporting a finding that he was a credible witness. 1445 His version was supported on critical issues by the evidence of the only independent witness, Ms McCallum, with the differences in their accounts relating to only ancillary issues. It was a version which was both plausible, having regard to the overall circumstances of the party and consistent with the evidence of Prof David (and A/Prof Pennington). 1446 Conversely, it was submitted that the applicant’s version of events was unreliable, inherently very unlikely and lacking in credibility. In many respects the applicant’s evidence was unsupported by any other evidence. 1447 Notwithstanding this was a civil case, if the applicant’s evidence was accepted, it involved grave findings of serious criminal conduct by Lloyd and Dunn-Lawless and a finding that Ms McCallum had deliberately lied, as her account could not otherwise be reconciled with that of the applicant. These 1605 T 1519.5-11; T 1789.27-37. 1606 T 1789.38-1790.8. 1607 FDN 321. 1608 FDN 334. -- 275 of 496 -- [2026] SADC 27 270 findings would result in significant consequences for Lloyd, Dunn-Lawless and Ms McCallum.1609 1448 The Court was asked to make the following findings of fact as to the incident, consistent with the evidence of Dunn-Lawless, supported by that of Ms McCallum:1610 • Dunn-Lawless was an invited guest at the party and not a gate crasher; • at the time Dunn-Lawless intervened in the incident, the applicant was the aggressor; • the applicant threw multiple punches towards both Lloyd and/or Dunn- Lawless and was continuing to act violently towards Lloyd; • Dunn-Lawless then punched the applicant once in the face with his fist. He did not use a bottle; • at the time Dunn-Lawless punched the applicant, he believed he and Lloyd were in danger of being assaulted by the applicant; and • that belief was reasonably held, and as such the force used by him was proportionate to the threatened harm. 1449 It was not in dispute that there was a prima facie case in battery, as Dunn- Lawless had intentionally punched the applicant.1611 However, the real issue was whether Dunn-Lawless had made out the defence of self-defence on the facts as found. If so, it was submitted that no pleaded cause of action could succeed as against Dunn-Lawless.1612 Why the applicant’s evidence should be rejected General 1450 It was submitted that the applicant’s account of the incident was inherently unreliable due to his long-standing schizophrenia and the effects of psychosis and otherwise generally lacking in reliability and credibility.1613 In that respect, it was submitted that both the evidence of Prof Nielssen and the records from the Broadmoor Hospital1614 were relevant to the Court’s assessment of the reliability of the applicant’s account and should be taken into account.1615 1609 FDN 321 at [27] and [32]. 1610 FDN 321 at [4] and [33]. See also submissions at [51]-[55] adopting the reasoning of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336, 361. 1611 With the fact the conduct was intentional necessarily precluding a successful action in negligence. 1612 FDN 321 at [8] and [12]. 1613 Ibid at [57], adopting the submissions of the third and fourth respondents. 1614 Exhibit R79. 1615 Toohey v Metropolitan Police Commissioner [1965] AC 595, 608 and Bromley v The King [2023] HCA 42. -- 276 of 496 -- [2026] SADC 27 271 1451 Further, there was a very real possibility that the applicant was not of sound mind when giving his evidence in March 2023. As such the Court was urged not to act on the applicant’s evidence in circumstances where it was uncorroborated and to carefully consider that evidence having regard to other objective material.1616 Out of court statements 1452 It was submitted that during his evidence, the applicant frequently responded to questions by referring the Court to the contents of his police statements, which were not in evidence. He was conscious to adhere to his statements and to emphasise his consistency with them. This shed doubt on whether what the applicant was doing was giving evidence of his actual memory of events or what he had memorised from reading earlier statements and documentation.1617 1453 It was further submitted that any attempt by the applicant to ‘bolster’ his reliability by reference to his account being consistent with earlier out of court statements was precluded, with the Court effectively being asked to use those statements as evidence of the truth of what was said therein.1618 1454 Moreover, there were numerous inconsistencies in the applicant’s account at trial and prior out of court statements he made to the ambulance officers, the doctors and nurses at the RAH and those doctors who had examined him thereafter either in a treating capacity or for medico-legal purposes. 1455 Importantly, contemporaneous records demonstrated that the applicant’s account to the doctors at the RAH immediately post-incident and later to Dr Rowe was that he had been both punched and hit by a bottle.1619 The applicant’s explanation as to why this differed from his evidence that he was exclusively struck by bottles, was that he was heavily concussed and non-verbal when he made such statements. This was at odds with the ambulance officer’s observation that the applicant was alert and orientated. Further, this could not explain any discrepancies in the history given to Dr Rowe years later. 1456 This was also submitted to be an example of where the applicant had refused to make any concessions, notwithstanding there was other objective conflicting evidence. It was also said to be an example of the applicant exaggerating the seriousness of the incident, noting there was no other evidence that he was rendered unconscious or non-verbal. 1457 Similarly, there were inconsistencies in the applicant’s evidence at trial and what he had told Dr Kutlaca in February 2017 about the incident. The latter account included a history that the applicant had struck Lloyd three times, after which Dunn-Lawless intervened by grabbing a long neck bottle off the table. 1616 FDN 334 at [12]-[13]. 1617 FDN 321 at [101]. 1618 FDN 334 at [1]-[4]. 1619 FDN 321 at [76]-[77]. -- 277 of 496 -- [2026] SADC 27 272 Dr Kutlaca also recorded that the applicant told him that he was hit about 17 times and rendered unconscious for about 10 minutes. 1620 1458 The Court was reminded that at trial, the applicant would not commit to the number of times he had been hit, stating he did not want it put to him that he was exaggerating. This was said to be an example of the applicant willingly withholding information from the Court when he perceived it was in his favour to do so, thus weighing heavily against his credibility. 1621 Internal inconsistencies in evidence 1459 It was submitted that there were internal inconsistencies in the applicant’s evidence. Examples included the applicant’s description of being rendered unconscious by Lloyd, then getting up while Lloyd was ‘over’ him, but then saying he got up and ‘ran up’ to Lloyd.1622 Another example was the applicant’s inconsistent evidence as to whether he had punched Lloyd during the incident.1623 Evidence inconsistent with objective evidence 1460 The applicant claimed to have been the victim of a violent and sustained attack, involving multiple blows with bottles, sufficient to render him unconscious, over a period of some five to eight minutes. 1461 On the applicant’s evidence, the incident occurred on the grassed area of the backyard, near the table,1624 being an area lit by the floodlight at the back of the house and in relatively close proximity to the pergola area where most guests were congregated. If the applicant’s account was correct, it was inherently unlikely that, no partygoer would come to his aid during the incident or try to restrain Lloyd and/or Dunn-Lawless. 1462 The applicant was adamant Dunn-Lawless had struck him with a bottle held in his left hand, whereas Dunn-Lawless had given unchallenged evidence that he was right-handed. 1463 The applicant recorded a BAC of 0.129% gms when breath tested at about 11:30pm. Notwithstanding this, the applicant steadfastly maintained that he had only consumed six bottles of beer. His attempt to reconcile that evidence with that blood alcohol reading, namely, ‘Maybe I drank the alcohol over a short period of time before the assault’ was an example of the applicant attempting to tailor his evidence to his own advantage and make it ‘fit’ with the evidence of Prof White.1625 1620 Ibid at [82]-[87]. 1621 Ibid at [88]-[90]. 1622 Ibid at [71]-[73]. 1623 Ibid at [81]. 1624 Noting that although the applicant denied that others were seated at the table, Ms McCallum gave unchallenged evidence to this effect. 1625 FDN 321 at [99]. -- 278 of 496 -- [2026] SADC 27 273 Evidence inconsistent with contemporaneous evidence 1464 The applicant gave evidence that after the incident, he crawled through the garage, bleeding, drifting in and out of consciousness. 1465 This account had no support from any witness and, importantly, was inconsistent with Dechlan Heames’ evidence that he saw the applicant walking (but staggering) and then assisted him into a chair. 1466 It was submitted that contrary to the applicant’s submissions, the applicant’s evidence that he was exclusively hit by bottles, found no support from any of the contemporaneous evidence.1626 Contrary to the applicant’s submissions, it was not supported by what Owen told the police. Owen’s police statement contained several important differences, namely: 1627 • the applicant gave evidence that after he was pushed into the fence, Lloyd and Dunn-Lawless ‘walked off back to the table’1628 and ‘went back to the table to get the bottles’.1629 This could not be reconciled with what Owen had told the police as to his observations, namely, that he saw the applicant go around the corner to the lemon tree, he saw Lloyd follow behind him by three or four steps and then five to 10 seconds later saw Dunn-Lawless run from near the table to where the applicant and Lloyd had gone;1630 and • the applicant gave evidence that Lloyd first struck him at H3 on the grid and moved to H4. He put the table at H4. H4 is in the middle of the grassed area. The only way Owen’s police statement could be interpreted is to the effect that the incident occurred away from the table and ‘around the corner’.1631 1467 The account had no support from the initial police investigations conducted at the premises shortly after the incident.1632 In the Police Incident Report, there was no mention of the police searching for bottles or observations made of bloodstains. Further, an unnamed witness had reported that the incident, ‘[a]ppears a bit of a misunderstanding between all parties, play fight gone haywire’.1633 1468 Ms Dansie’s evidence, and what she told the operator during the triple zero call, was that she was told the applicant was punched. No one had mentioned to her that a bottle had been used.1634 1626 FDN 334 at [8]. 1627 Ibid at [22]-[24]. 1628 T 229.22-23. 1629 T 229.34-35. 1630 Exhibit P9 at [8]-[9]. 1631 Ibid. 1632 See discussion as to the Police Incident Report at [809]-[810] herein. 1633 Exhibit P11, FDN 321 at [91]-[93]. 1634 FDN 334 at [5]. -- 279 of 496 -- [2026] SADC 27 274 1469 Further, the applicant’s evidence of the earlier conversation he claimed had occurred with Owen, Lloyd, Dunn-Lawless and others, was completely uncorroborated by any of the evidence. Importantly, his own witness, Dechlan Heames, had no recollection of being present for this hostile exchange. Owen’s evidence was that the applicant and Heames were only part of this conversation because they happened to be with him at the time and that the conversation itself was a mild one, not hostile.1635 1470 On all of the evidence, both Lloyd and Dunn-Lawless were allowed to stay and there was no evidence, other than from the applicant, that there was any animosity between Lloyd and/or Dunn-Lawless and the applicant arising from this conversation (or at all), prior to the incident. There was simply no support for the applicant’s claim that Lloyd and Dunn-Lawless offered to fight him during this conversation, being something that the applicant had reconstructed to support what he now believes ultimately occurred.1636 Evidence not supported by the expert evidence 1471 The Court was urged to accept the opinion of Prof David, namely that:1637 • the nature of the applicant’s injuries did not reveal whether he was hit with a bottle (or bottles) or by fists;1638 and • the nature of the applicant’s injuries was inconsistent with the applicant having been hit by a bottle in the face, with reasonably forceful blows, four of five times (or more).1639 1472 The effect of A/Prof Pennington’s evidence was that the injuries suffered by the applicant were more commonly encountered by doctors where the face was struck by a solid hard object but could result from a punch or punches. As such, contrary to the applicant’s submissions, A/Prof Pennington’s evidence was not inconsistent with the version expounded by Dunn-Lawless and Ms McCallum and rather was an expression of the statistical frequency by which such injuries were caused. Of itself, this evidence was insufficient to persuade the Court that the injuries were caused by bottles, applying the civil standard of proof. 1640 1473 Further, A/Prof Pennington assumed the applicant had protected himself with his arms, such that they took the brunt of some of the blows. While the applicant described using his arms to block the blows, his evidence was that he was hit ‘several times in the face. So many times that [he] lost count’.1641 It was submitted that the applicant’s evidence was insufficient to support a positive finding that he 1635 FDN 321 at [142]-[147]. 1636 Ibid at [148]-[150]. 1637 FDN 321 at [126]- [129]. 1638 Exhibit R22 at [6]. 1639 Ibid at [7]. 1640 FDN 321 at [130]-[133]. 1641 T 231.4-6. -- 280 of 496 -- [2026] SADC 27 275 was able to successfully reduce the degree of force of the subsequent blows to his face after one or two blows, as has been assumed by A/Prof Pennington, rendering his opinion of little or no value.1642 Owen’s evidence/police statement 1474 It was submitted that contrary to the position expounded by the applicant, the Court should not accept Owen’s narrative as outlined in his police statement. Owen had expressly denied the truth of that narrative at trial. In addition, the narrative was inconsistent with the uncontested evidence of other witnesses at trial, including Dechlan Heames, nor was that narrative put to those witnesses.1643 1475 Specifically, it was never put to either Dunn-Lawless or Ms McCallum that the second bear hug had not occurred, nor was it put to them that the ‘fight’ occurred around the corner by the lemon tree.1644 Why Dunn-Lawless’ evidence should be accepted 1476 It was submitted that Dunn-Lawless was both a credible and reliable witness who did his best to assist the court. This was said to be demonstrated by his willingness to make important concessions which were potentially adverse to his interests.1645 1477 Dunn-Lawless had readily acknowledged that he had struck the applicant fairly square to the nose with his hand and had described the strike as heavy. He had not attempted to embellish his evidence on this aspect notwithstanding he readily conceded that his memory of events (that is, of only that one punch landing on the applicant during the incident) was difficult to reconcile with the expert evidence. He had not sought to tailor his evidence to fit with that evidence.1646 1478 The criminal charges against Dunn-Lawless had been withdrawn. He had taken responsibility for his one heavy punch being the likely cause of the applicant’s injuries, in circumstances where he could have pointed the blame at Lloyd. This militated against Dunn-Lawless having tailored his evidence to downplay his culpability, as submitted by the applicant.1647 1479 Importantly, much of Dunn-Lawless’ evidence on relevant matters, was not only unchallenged, but in several critical aspects supported by the evidence of Ms McCallum.1648 1642 FDN 321 at [135]-[136]. 1643 FDN 334 at [15]. 1644 Ibid at [21]. 1645 FDN 321 at [102]. 1646 Ibid at [103]-[105]. 1647 Ibid at [106]-[107]. 1648 Ibid at [108]. -- 281 of 496 -- [2026] SADC 27 276 Why Ms McCallum’s evidence should be accepted 1480 It was acknowledged that there were some differences in the evidence given by Ms McCallum and Dunn-Lawless on ancillary issues, such as how (and when) Dunn-Lawless got to the party and how they got home thereafter. 1481 She had not given any evidence of observing the first ‘bear hug’ or any conversation about that between Lloyd and Dunn-Lawless, or of hearing the applicant say he had been bottled immediately after the incident. It was submitted that these types of differences in their evidence were readily explicable both due to the passage of time and their different perspectives of events.1649 These differences told against Ms McCallum’s account having been constructed by way of collusion with Dunn-Lawless.1650 1482 Importantly, on critical issues, Ms McCallum’s evidence was consistent with that of Dunn-Lawless, the most significant of which was her evidence that the applicant was not hit with bottles.1651 Her evidence that she was seated at the table at the time of the incident was unchallenged. She was adamant that she had an actual recollection of the fight, while conceding the limitations of her memory of other unimportant matters which occurred that night.1652 1483 It was submitted that Ms McCallum had no interest in the outcome, having been compelled by subpoena to give evidence at trial and no ongoing friendship with Dunn-Lawless which may provide the basis for her to tailor her account to support him.1653 The suggestion that her evidence was affected by conscious or unconscious bias was, at its highest, a matter of speculation.1654 1484 While there were some differences in the accounts of Ms McCallum and Dunn-Lawless as to what occurred immediately after the incident, importantly Ms McCallum’s recollection as to the circumstances in which they left the party, namely that Owen had made it abundantly clear that they should leave, could not be reconciled with the applicant’s claim that Lloyd and Dunn-Lawless fled ‘like cowards’ from the party.1655 1485 Further, it was submitted that the observations made by Ms McCallum as to the applicant’s disinhibited behaviour before the incident (namely, the bear hug of Lloyd immediately prior to the incident and her earlier observations of the applicant being loud in the pool – uncharacteristically loud compared to the other partygoers) - were consistent with Prof White’s evidence of the potential impact on the consumption of alcohol on the applicant’s behaviour. It was submitted that 1649 Ibid at [119]-[121]. 1650 Ibid at [116]. 1651 With other notable consistencies in her evidence being those outlined at FDN 321 at [117]. 1652 Ibid at [109]-[111], [113] and [115]. 1653 Ibid at [114]. 1654 FDN 334 at [34]. 1655 Ibid at [122]. -- 282 of 496 -- [2026] SADC 27 277 such disinhibition supported the description given by Dunn-Lawless of the applicant’s behaviour in the lead up to the incident.1656 1486 Similarly, the evidence demonstrated the applicant had a history of aggressive behaviour and a predisposition for attributing the responsibility for that behaviour onto others, being another circumstance which militated in favour of the version of the incident as described by Dunn-Lawless and Ms McCallum.1657 Self-defence 1487 It was submitted that if the Court accepted the evidence of Dunn-Lawless, it should find that at the time Dunn-Lawless struck the applicant, he did so in self- defence (or defence of another). 1488 As to the first (subjective) element of the defence - Dunn-Lawless gave evidence that when he struck the applicant, he felt as if he was defending both Lloyd and himself and that the applicant was going to continue to attack them. It was never suggested to him in cross-examination that he did not subjectively believe that he was acting in self-defence when he punched the applicant. The Court was urged to accept Dunn-Lawless’ unchallenged evidence to this effect.1658 1489 As to the objective element - both Dunn-Lawless and Ms McCallum gave evidence that prior to Dunn-Lawless striking the applicant, the applicant had punched Lloyd. Dunn-Lawless also gave evidence that the applicant had punched him twice in the head. The applicant was physically larger than Lloyd. There was no sign of the threat being posed by the applicant abating, that threat being that of injury caused by a punch or punches. In response to that threat, Dunn-Lawless responded by using similar force that is, he used his fist to punch the applicant. When confronted with violence, he had acted defensively, and he ceased to so act when the threat abated. 1490 It was submitted that the fact the punch solidly connected with the applicant’s nose, was a matter of chance and the fact that the applicant sustained a comparatively more severe injury from the application of that force was not determinative. As such, the Court should conclude that Dunn-Lawless’ belief that the action he took was necessary in defence of both himself and Lloyd was a reasonable belief, in the circumstances as he perceived them to be.1659 1491 Finally, it was submitted that contrary to the applicant’s submissions, the defence of self-defence could be made out, even if Dunn-Lawless’ evidence was not accepted in its entirety. For example, the defence could be made out if Ms McCallum’s evidence was accepted or on the version as put forward in the 1656 Ibid at [137]-[141]. 1657 Ibid at [151]-[153]. 1658 Ibid at [169]-[172]. 1659 Ibid at [173]-[182]. -- 283 of 496 -- [2026] SADC 27 278 applicant’s opening address (that is the applicant punched Lloyd before Dunn- Lawless entered the fight). 1492 The Court was urged to make a finding that Dunn-Lawless had acted in self- defence, such that he was not liable for any loss or damage suffered by the applicant. Medical causation 1493 The second respondent adopted the submissions made by the third and fourth respondents on this issue.1660 1494 In addition, the second respondent submitted that insofar as the Court found that both the first and second respondents had made physical contact with the applicant during the incident, there was insufficient evidence from which the Court could determine which contact, in fact, caused any physical injuries to the applicant, and/or any other resulting injury.1661 1495 Specifically, it was submitted that on either the second respondent’s account and/or Ms McCallum’s account, there was simply no basis to make a finding that any blow inflicted by the first respondent was inflicted in furtherance of some common design or concerted action by them towards a common end, sufficient to render the second respondent liable for the effects of the same.1662 Closing submissions of the third and fourth respondents General 1496 Counsel for the third and fourth respondents made oral closing submissions and in addition relied on the following material: • Written Submissions of the Third and Fourth Respondents dated 7 June 2024;1663 and • Reply Submissions of the Third and Fourth Respondents dated 19 August 2024.1664 Summary 1497 By way of summary, the third and fourth respondents submitted:1665 • they did not breach any duty of care owed to the applicant; 1660 Ibid at [183]. 1661 Ibid at [185]-[186]. 1662 T 1866.34-1868.4; applying the principles in Schumann v Abbott and Davis [1961] SASR 149 at 154-155. 1663 FDN 318. 1664 FDN 332. 1665 FDN 318 at [1]-[5]. -- 284 of 496 -- [2026] SADC 27 279 • the applicant’s schizophrenia is the cause of any incapacity suffered by him; • the incident did not cause the applicant’s schizophrenia, which was, in fact, a neurodegenerative condition, which had simply revealed itself at a point in time after the incident; and • the applicant did not suffer PTSD as a result of the incident. Even if he did, that did not cause his schizophrenia. Applicant’s reliability 1498 The third and fourth respondents’ primary contention was, that consistent with the opinions expressed by both Prof McFarlane and Prof Nielssen, the applicant’s evidence on important topics should not be accepted as reliable unless it was supported by other reliable evidence. 1499 Notwithstanding the Court had consistently expressed a view that evidence relevant to the applicant’s medical condition, at the time he gave his evidence, was relevant to the Court’s assessment of that evidence, the applicant had made a conscious decision not to call evidence from Dr Nabi or any other treating practitioner on this issue. The Court was urged to draw an adverse inference against the applicant by virtue of that failure. 1500 The third and fourth respondents had been forced to subpoena records held by both the Farmfield and Broadmoor Hospitals to gauge an understanding as to the applicant’s current mental health. Those records were tendered as business records and admissible as to the truth of their contents. 1501 As such, it was submitted that it was appropriate for this Court to receive and consider that material and any other medical evidence as to the effect of the applicant’s schizophrenia on his ability to give reliable evidence. 1502 The Broadmoor Hospital records confirmed that at the time the applicant gave his evidence as to liability in March 2023, he was observed to be suffering from auditory hallucinations and engaging in behaviour indicative of him experiencing psychotic symptoms. 1503 For example, a note made by nursing staff at Broadmoor on 22 March 2023 (the first day he gave such evidence) described the applicant as appearing agitated, he was observed to be shaking his legs repeatedly, staring at members of staff and swearing to himself. The following day, he was observed to demonstrate increasing psychotic symptoms throughout the afternoon, laughing to himself and was seemingly anxious. He was described as presenting as agitated, paranoid and distractable. After giving his evidence on 23 March 2023, he was observed laughing by himself, holding his breath for periods and then laughing to himself again. -- 285 of 496 -- [2026] SADC 27 280 1504 It was submitted that these observations suggested that the applicant was experiencing active schizophrenia at that time, consistent with the evidence of Prof Nielssen. 1505 Further, the Broadmoor records demonstrated that between March 2023 and February 2024, the applicant had suffered a significant deterioration in his mental health. At times he presented as floridly psychotic and a decision was ultimately taken to enforce Clozapine intramuscularly because of the high risk the applicant was presenting to others. 1506 It was submitted that the applicant’s presentation when he gave his evidence in February 2024 was also consistent with him having significant ongoing difficulties with his mental health. During cross-examination, he had smiled and laughed inappropriately, expressed ongoing beliefs that the Stonemasons had influenced the course of his studies and continued to deny that he was mentally ill. He had maintained a fixed belief that he was suffering from PTSD (contrary to the medical evidence) and had poor insight as to his illness, insofar as he maintained it was his medication that was making him mentally unwell. 1507 Prof McFarlane had accepted the possibility of the applicant’s memory being disrupted when he was unwell and he had recommended that to best test the evidence, it was necessary to see whether the history obtained from time to time was supported by some other objective material.1666 1508 It was submitted that the Court should accept the opinion of Prof Neilssen, namely that the applicant:1667 ... continues to experience active symptoms of schizophrenia in the form of auditory hallucinations and persecutory beliefs, as well as impaired self-awareness and emotional regulation … the main effect on the reliability of his evidence would appear to be in the modification of his memory of the events that is probably due to the influence of his severe mental illness on the retrieval and reintegration of his memories, and the loss of the ability to reality test his own fixed beliefs after considering contemporary observations, for example medical records. During my interviews of Mr Chattaway he maintained that he had suffered several facial injuries and that he was admitted to intensive care, despite being told that the medical records did not confirm his account. The discrepancy of his accounts and the objective information suggests that he has developed a false memory of the events and that his evidence about what happened is unreliable. 1509 It was submitted that notwithstanding the applicant’s counsel had sought to downplay examples of the applicant’s obvious mental health difficulties while giving evidence, his presentation was at times ‘maniacal’ and that his troubling witness box behaviour could not be passed off as mere arrogance or contemptuousness. 1666 T 1556-1557. 1667 Exhibit R76 at p 196. -- 286 of 496 -- [2026] SADC 27 281 1510 The third and fourth respondents observed that there were some technical difficulties encountered during the applicant’s evidence, as the evidence was being given by way of AVL link from overseas. However, when the connection proved insufficient, that was remedied and all appropriate accommodations had been made for the applicant, including hearing evidence at a time which suited him and providing multiple and frequent breaks. 1511 It was submitted that there was simply no basis to suggest that the applicant would have been more comfortable being personally present to give his evidence in court than being in the environment of his mental health facility and that in any event, the fact that he gave his evidence from that facility, via AVL, was a matter of his choosing. 1512 The applicant’s evidence was critical to both the cases to liability and as to medical causation. On important topics, the applicant’s evidence was neither consistent with, nor supported by objective or other evidence and, in certain aspects, contradicted by that evidence. As such, the Court was urged to reject that evidence on the basis that it could not be satisfied of the reliability of that evidence. Evidence as to the party/incident Applicant’s evidence 1513 It was submitted that the applicant’s evidence indicated a general tendency to take any opportunity to criticise the respondents. 1514 The Court was directed to aspects of the applicant’s account about the party, which were not otherwise corroborated by any other evidence. These included: • the applicant had maintained that he had observed the adults at the party to have been drinking alcohol to excess. This evidence was not supported by the evidence of any other witness and there was simply no foundation for it; • the applicant claimed to have observed girls and others vomiting at the party. That evidence was inconsistent with all of the other evidence led as to the general atmosphere of the party, with none of the witnesses who were called to give evidence having observed any behaviour consistent with overt drunkenness and none having any recollection of observing any girls or others vomiting throughout the evening; and • the applicant had maintained the assertion that the respondents had provided alcohol for guests, contrary to the terms of the invitation (which specified the party to be ‘BYO’), contrary to the evidence of all of the other witnesses and seemingly inconsistent with his own acknowledgment that he had brought beer to the party and that others had also brought alcohol with them. 1515 It was submitted that the applicant’s recollection of the discussion between Owen, Lloyd and Dunn-Lawless was a completely reconstructed pejorative -- 287 of 496 -- [2026] SADC 27 282 version of events. There was simply no support (and importantly, no support from Mr Heames) for the applicant’s claim that Lloyd and/or Dunn-Lawless had ever offered to fight him (and Mr Heames) during this discussion (or at any other time). 1516 Indeed, the applicant had acknowledged that during this discussion, Lloyd had addressed his past behaviour and, as a result, it was agreed that he could stay at the party. There was simply no evidence to support the applicant’s assertion that during this discussion he had been called a pussy or that anyone had ever offered to fight him. Rather, the evidence demonstrated that Lloyd and Dunn-Lawless were allowed to remain at the party and that no one perceived that they represented a threat by their ongoing presence. There was no change in the ambience of the party thereafter, which continued to be a calm and relatively docile affair. 1517 It was submitted that the applicant’s account demonstrated that he had convinced himself of a sequence of events which was distorted rather than reliable. It was submitted:1668 It has all the hallmarks of the applicant wrongly convincing himself that there was some threat, that indeed he took some action in respect of that threat and that he was somehow justified in doing so. 1518 In addition, on various aspects, the applicant’s account was exaggerated. For example, his evidence that after the incident he was drifting in and out of consciousness and had to crawl through the garage, as no one had come to his aid. This was simply inconsistent with the other evidence led at trial. 1519 The Court was reminded of the ‘other florid descriptions’ of the incident that the applicant had given to others over time. This included the history the applicant provided to Dr Rowe on 27 April 2012 that he had been hit in the face about 14 times with a champagne bottle by two people, shattering his nose and that other than his jaw and teeth, ‘every bone in [his] face was broken’.1669 Similarly, the applicant had told Dr Kutlaca that he had been hit about 17 times and had spent two weeks in the Intensive Care Unit. 1520 The Court was reminded of the fact that at the time of the incident, the applicant must have been at least moderately affected by alcohol, having regard to his blood alcohol reading of 0.129% and the count back evidence of Prof White. It was argued that the applicant’s ability to understand what was happening around him at the time of the incident, would have been impaired, as would his memory, which may have been further confused and distorted by his subsequent psychosis. 1521 It was submitted that even if the Court approached the applicant’s evidence without considering the possible impact of his mental illness on reliability, it should ultimately conclude that his evidence was unreliable and, in certain aspects, probably dishonest. When all of the evidence was considered, including the 1668 FDN 318 at [90]. 1669 Exhibit R42 at pp 624-625. -- 288 of 496 -- [2026] SADC 27 283 medical evidence, the Court should reject the applicant’s account as being illogical and inconsistent with other objective and reliable evidence. It should conclude that the applicant has not met his burden of proof. Ms McCallum’s evidence 1522 The Court was urged to accept the evidence of Ms McCallum as to the circumstances of the incident, as she was the only independent evidence who observed the incident. 1523 There was no evidence that Ms McCallum had any significant ongoing friendship with either Lloyd or Dunn-Lawless. The very fact that there were aspects of her account which differed from that of Dunn-Lawless, suggested that they had not conspired to present a false version of events to the Court. Rather, the differences in their versions were said to be consistent with their different perspectives at the time and also consistent with the passage of time since the incident. Insofar as there were similarities in their account, rather than this being indicative of any ‘strange unexplainable consistency’,1670 it was simply the product of both witnesses having told the truth about what happened. 1524 Ms McCallum had not been drinking at the party. It was submitted that she was a reliable and forthright witness, who had given a straight-forward account, which should be accepted. 1525 During cross-examination, no alternative version of events was put to her, nor was she specifically cross-examined as to her observations of the mechanism of the incident. Rather, the only challenge to Ms McCallum’s version of events was based on a suggestion that she had no memory of the incident and that she had simply come to court to support Dunn-Lawless, propositions that she had firmly rejected. It was suggested that it would be remarkable if Ms McCallum did not have any memory of such a confronting event and the differences in her recollection compared to that of Dunn-Lawless were likely due to their different perspectives of the event and the effects of the passage of time. Lay evidence consistent as to circumstances of party 1526 It was submitted that contrary to the submission of the applicant, the lay evidence effectively supported the straightforward and forthright evidence of Ms Dansie and Mr Tony Stankiewicz as to the circumstances of the party. 1527 None of the lay witnesses had any recollection of there being any conflict between anybody at the party, nor did anyone appear to be overly intoxicated, nor was there anything about the atmosphere of the party which was out of the ordinary or indicative of any conflict or anything untoward. Both Mr Eckert and Mr Heames had described the party as being relatively quiet, it occurring on a Sunday with the number of people in attendance not exceeding 30. The evidence of Mr and Mrs Allan had been to the effect that this was a typical party, with no evidence of 1670 FDN 327 at [83]. -- 289 of 496 -- [2026] SADC 27 284 conflict. While the young people present were drinking, there was no obvious signs of guests being drunk or aggressive, nor was anyone observed to have been vomiting inside or elsewhere. 1528 The evidence of Ms Dansie and Mr Stankiewicz demonstrated that they had been concerned to ensure that there be an identified guest list with appropriate numbers attending. Both had been present throughout the night with Mr Stankiewicz undertaking a managing role, providing appropriate food and refreshments by way of water and soft drinks and circulating discreetly and appropriately during the evening. 1529 It was simply not the case, as submitted by counsel for the applicant, that there were 105 attendees at the party. This number reflected the guest list – not who had ultimately attended. The majority of the evidence suggested that at most, there were around 30 to 40 people in attendance at the party any one time and importantly, at the time Mrs Chattaway arrived (and the ambulance was called), both Mrs Chattaway had estimated and Ms Dansie had told ambulance personnel, that there were only about 30 people in attendance. Owen’s evidence 1530 The third and fourth respondents acknowledged that there were differences in the evidence given by Owen when compared to that as set forth in his earlier police statement and that Owen had been frank in terms of admitting those differences. 1531 However, it was submitted that as it transpired, there was essentially no topic of any significance where there was any such inconsistency and nothing in Owen’s statement which was inconsistent with the evidence of the respondents as to the essential elements of the incident. 1532 There were two relevant matters in Owen’s statement. 1533 The first related to the circumstances in which Lloyd’s arrival at the party was noted and a discussion then had, involving Owen, Lloyd and others, which led to Lloyd and Dunn-Lawless being allowed to remain at the party. What this demonstrated was that there was in fact a process of management with respect to uninvited guests. They would be spoken to and a decision made as to whether it was appropriate for them to remain. This is precisely what had happened with Lloyd. There was no basis for any suggestion that the decision made to allow Lloyd to stay was not justified. There was simply no basis for any suggestion that the third and fourth respondents should have taken any further action thereafter, beyond their continued management of the party. There was no evidence that he was a known troublemaker and no basis for asserting that the third and fourth respondents ought to have overruled their son’s decision to allow Lloyd to remain. -- 290 of 496 -- [2026] SADC 27 285 1534 The second related to the fact that Owen did not see the physical altercation. As such, it was simply not the case that Owen’s evidence corroborated the applicant’s version of how the incident occurred. 1535 It was noted that as one of the guests in whose honour the party was held, it was likely that Owen had consumed more alcohol than some of the other witnesses, albeit there was no evidence to suggest his consumption was such as to render his evidence unreliable. Dunn-Lawless’ evidence 1536 It was submitted that Dunn-Lawless was an impressive witness who had made frank admissions as to his involvement in the incident in a manner which was both credible and consistent with the other evidence. The fact that his account differed from that of Ms McCallum was indicative of there being no corroboration between them and consistent with him giving an honest attempt to recall what had happened. Mechanism of the incident 1537 The applicant’s pleaded case was that he was struck by Lloyd and Dunn- Lawless, ‘including with glass bottles’.1671 It was pleaded that the incident had occurred in the following manner:1672 1. the first respondent had swung his right arm and hit the applicant with a champagne bottle; 2. the second respondent had struck the applicant twice on the right side of his face by a beer bottle; and 3. the applicant was subsequently struck in the face by both the first and second respondent. 1538 It was submitted that it was implicit from how the claim was pleaded, that the applicant asserted he had been struck with both bottles and fists. 1539 However, in his evidence, the applicant was adamant that he had not been struck by fists. He maintained that he had been struck on an unidentified number of occasions with bottles by both Lloyd and Dunn-Lawless. 1540 The third and fourth respondents acknowledged that the applicant had complained of being bottled at the scene (as per the evidence of Dunn-Lawless). Further, the ambulance notes recorded a history that the applicant was ‘hit in face with bottle’. Upon his arrival at the RAH Emergency Unit, the applicant reportedly gave a history of having been ‘punched over the face and hit with a bottle over the nose’. 1671 Revised Statement of Claim (FDN 94), Part 1, Introduction by Applicant. 1672 Ibid at [5]. -- 291 of 496 -- [2026] SADC 27 286 1541 However, it was submitted that the applicant was now unable to identify which version of events should be preferred and that the primary position that was advanced, namely that the applicant was struck (by fists) at least once to the face and head, in fact entailed a rejection of the applicant’s own evidence. 1542 The Court was urged to reject the applicant’s evidence that he was hit with a bottle or bottles, as it was not supported by any other factual witness. In this respect, it was submitted that the expert evidence did not resolve the issue. Prof David’s opinion was that the injuries were equally consistent with the application of significant blunt trauma by clenched fists. A/Prof Pennington’s opinion was based on his observation of patients in other cases, rather than a specific biomechanical analysis of the applicant’s injuries. Further, A/Prof Pennington had made assumptions which were otherwise not established on the evidence, namely that Lloyd was observed to be holding a bottle of champagne immediately before the incident and that Prof David had recorded an opinion that the applicant was hit in the face with a champagne bottle. Findings of fact - party organisation 1543 It was submitted that the evidence established that: 1. the third and fourth respondents had required there to be only a limited number of guests at the party, being guests known to either Owen or Kelly; 2. they had considered appropriate arrangements in advance in terms of the provision of both alcohol and food and of the requirement to have additional adult support persons present in case of some emergency; 3. the third and fourth respondents and others had in fact supervised the party, as evidenced by the fact that the only identified guest who may not have been invited (Lloyd) was identified and spoken to and then specifically approved as appropriate to stay; 4. there was appropriate adult supervision during the party as demonstrated by what occurred in the immediate aftermath of the incident; and 5. that until the incident, this was a quiet, well-mannered and friendly party with limited numbers and no reason to suspect any disorder. Indeed, the applicant himself had described the party as ‘pretty boring’ and had said that he had been enjoying himself. 1544 It was submitted that the uniform evidence of all witnesses was that there was no reason for the hosts to take any action by way of additional direction, security or exclusion of people to deal with any suggestion of apprehended risk. 1545 Any suggestion that the third and fourth respondents ought to have requested Lloyd to leave before there was an incident, went nowhere. The fact was, Lloyd was identified as having not been invited and approached. A long discussion was -- 292 of 496 -- [2026] SADC 27 287 had with him, at the end of which a decision was made, allowing him to stay. Thereafter, on all of the evidence, the party had continued in an uneventful manner until the subject incident. For example, there was no evidence to support a finding that either Lloyd or Dunn-Lawless drank excessively after they were allowed to stay, or that either were intoxicated at the time of the incident. There was simply no basis upon which the third and fourth respondents ought to have acted further in respect to Lloyd or Dunn-Lawless. 1546 The incident could not have been predicted by anyone, let alone the third and fourth respondents. To suggest that they could have predicted and done something to prevent it was untenable. There was simply no basis for any suggestion that the third and fourth respondents could have stepped in and prevented the incident. No duty 1547 The third and fourth respondents’ position was that the applicant had failed to establish that they had breached any relevant duty of care they owed to the applicant. 1548 The applicant’s claim was said to fail at the very first hurdle, insofar as the applicant had not established that the third and fourth respondents owed him any relevant duty of care to prevent harm caused to him by the criminal conduct of a third party, or some other more general duty that was owed to him in their capacity as social hosts. 1549 It was submitted that the legal position was clear, namely, in the absence of some special relationship, the law did not impose a duty to prevent harm to another from the criminal conduct of a third party, even if the risk of such harm was foreseeable.1673 There was no such ‘special relationship’ in this instance, consistent with the decision in Hodge v Barham,1674 wherein the Court determined there were insufficient salient features in the relationship between a host and guest so as to justify or require a conclusion that the relationship was sufficiently close to give rise to such a duty. 1550 As the occupiers of the property, the third and fourth respondents owed a duty as per s 20 of the Civil Liability Act relevant to the dangerous state or condition of the premises. However, there was nothing about the condition or state of the premises which had caused or contributed to any alleged injury, loss or damage sustained by the applicant. 1551 It was submitted that there was no support in law for the existence of a duty of care of the scope as articulated by the applicant. The Court was referred to the decisions of the Queensland Court of Appeal in Ryan1675 and the New South Wales 1673 Modbury Triangle Shopping Centre Pty Ltd v ANZIL (2000) 205 CLR 254 (‘Modbury Triangle’) per Gleeson CJ at [29]. 1674 [2011] WADC 71 at [166]. 1675 [2023] QCA 20. -- 293 of 496 -- [2026] SADC 27 288 Court of Appeal in Parissis,1676 wherein both courts had held that there was no duty of care owed by the respondent occupiers to a guest from the criminal conduct of another person over whom the occupiers had no control. 1552 Relevantly, in Parissis, the court had stated: 1677 Barbecue parties with liquor attended by young adults occur in their hundreds all over Australia every evening; the perception that the activity, supervised or unsupervised by older adults, is one involving a foreseeable risk of personal injury is, in my opinion, an entirely wrong perception. 1553 In this case, the premises were the home of the third and fourth respondents and not licenced premises, meaning that those cases which considered ‘statutory’ obligations of control, were of little assistance. 1554 It was submitted that the suggestion that the third and fourth respondents had the ability to and a duty to control the spontaneous behaviour of their guests was misguided and had no proper foundation, as demonstrated by the findings in Ryan. Specifically, it was noted that in that case, ‘it was no part of the duty of care pleaded against the appellants that they controlled, or were bound to control, the conduct of their guests, or at least to take reasonable steps to do so. Nor was it pleaded that they had been negligent by not doing so.’1678 It was submitted that this was no doubt because such a duty of care could not be supported on principle.1679 1555 The mere fact that the applicant was an invited guest did not necessarily correspond with the third and fourth respondents then having the ability and duty to control the spontaneous behaviour of their guests. There was simply no basis to the submissions made by the applicant to the effect that there was a duty imposed on the third and fourth respondents to prevent fights between guests and/or to the suggestion that the exercise of that duty was to be carried out by ‘a degree of supervision’. 1556 It was submitted that as in Modbury Triangle, the respondents ‘had no control over the behaviour’ of the first and second respondents and no knowledge or forewarning of what they had planned to do.1680 1557 Contrary to the submissions made by the applicant, the Court was urged to find that the incident itself occurred spontaneously and quickly in a secluded area of the yard. Rather than lasting for some five or eight minutes, it was suggested that the fight lasted 10 to 15 seconds at the most. There was no obligation or duty imposed on the third and fourth respondents ‘to intervene and control’. Even if 1676 [2004] NSWCA 373. 1677 Ibid at [70]. 1678 Ryan at [19]. 1679 FDN 332 at [39]. 1680 Modbury Triangle at [19]. -- 294 of 496 -- [2026] SADC 27 289 such a duty existed at law, there was simply no factual prospect of any intervention, having regard to the circumstances of the incident. 1558 It was submitted that the fact that a social host of a party may have the capacity to take measures to prevent the spontaneous behaviour of their invited guests, was not of itself sufficient to establish such a duty.1681 In respect, the third and fourth respondents noted what was said by Gleeson J, namely:1682 If people were under a legal duty to prevent foreseeable harm to others, the burden imposed would be intolerable. 1559 It was submitted that in this case, the evidence in fact established that there was an appropriate degree of control for the occasion, having regard to the size and nature of that occasion. All reasonable precautions had been taken by the third and fourth respondents, namely:1683 • there was appropriate planning for the party; • there were limited guests at the party; • no alcohol was supplied to guests; • food was provided; • additional adults were in attendance should any issues arise; • no information was provided to the third and fourth respondents which would have led them to have reasonably required any person to leave the premises; • the ambiance of the party was appropriate and peaceful; • there were at least two adults regularly circulating outside and further adults available inside to assist with supervision, such that the supervision was appropriate; • no issues were observed during the evening; • there were limited numbers in attendance and the facilities for those in attendance were more than adequate; and • the timing and location of the party was appropriate. 1560 Put simply, there was nothing about this party, which proceeded in an unremarkable and peaceful manner, which ought to have alerted the third and 1681 Ibid at [25]. 1682 Ibid at [28]. 1683 FDN 318 at [125]. -- 295 of 496 -- [2026] SADC 27 290 fourth respondents to the likelihood of the incident which suddenly and surprisingly occurred. Even if there had been, there was no basis for any assertion that the incident could have been prevented and/or stopped by any relevant action on the part of the respondents. Conclusion as to liability 1561 It was submitted that the applicant’s evidence as to both the party circumstances and the incident was simply too unreliable, unlikely and unsupported to be accepted. Even if bottles were used against the applicant, this was irrelevant in terms of the Court’s findings against the third and fourth respondents. 1562 The Court was asked to accept the evidence of Ms McCallum and Dunn- Lawless as to how the incident occurred. If the applicant was the aggressor, there was no duty to prevent him from starting a fight. 1563 Moreover, the third and fourth respondents had no duty to protect the applicant from the actions of other guests at the party. Even if such a duty was imposed on them, they discharged their duty by the reasonable organisation of the party. No level of supervision, appropriate to the event, would have prevented the incident. Medical causation Summary 1564 The third and fourth respondents’ primary submission was that they had not breached any duty of care owed to the applicant. However, the submissions outlined in detail why the Court could not be satisfied on the balance of probabilities that any alleged breach of duty was ‘a necessary condition of the occurrence of the harm’, as required by s 34(1) of the Civil Liability Act 1936 (CLA). 1565 The Court was urged to reject the evidence of Prof McFarlane as to his retrospective diagnosis of PTSD, it being without an appropriate foundation and, as to causation, it being unsupported by the medical literature. 1566 It was submitted that even if the Court accepted Prof McFarlane’s evidence, at its highest that evidence only proved an association between the incident and the applicant’s subsequent development of schizophrenia. In other words, the incident may have increased the risk of the applicant developing schizophrenia. It was submitted that such an association was insufficient to prove the ‘but for’ test utilised in s 34(1)(a), or ‘causation by material contribution’, being a lesser test than that specified by s 34(1)(a).1684 1684 Citing the reasoning in Merck Sharpe and Dohme (Australia) Pty Ltd v Peterson [2011] FCAFC 128 at [102]-[104] and Luntz, 5th Edition, at [2.2.26]. -- 296 of 496 -- [2026] SADC 27 291 1567 The submissions focussed on the evidence relevant to the primary issues in dispute between the parties, namely the applicant’s vulnerability, the course of the applicant’s illness, the diagnosis of PTSD and the competing expert evidence as to causation. Ultimately it was submitted that the applicant had not established either that he developed PTSD as a result of the incident and/or, that the incident had caused his schizophrenia. Schizophrenia 1568 The third and fourth respondents submitted that the Court should accept Prof Nielssen’s evidence as to the nature of schizophrenia. That is, it is a neurodegenerative condition, diagnosed retrospectively, which typically emerges between the late teens or early 30s and, in most individuals, manifests itself by way of the slow and gradual development of a variety of clinically significant signs and symptoms (the prodrome).1685 1569 It was submitted that as the illness was a neurodegenerative condition, there may be clues that indicate the neurological process was underway before an individual reaches the prodromal phase. 1570 In this case, the applicant’s illness emerged when it was likely to emerge, that is, in late adolescence, early adulthood. It had emerged against a background of the applicant having demonstrated behavioural issues, which may assist to explain the applicant’s behaviour at the party. Further, it was submitted that those pre- existing behavioural issues and the course of the applicant’s illness may show a continuation of the trajectory of the applicant’s neurodegenerative decline.1686 1571 It was submitted that in the applicant’s case, the illness had simply revealed itself at a point in time after the incident and had not been caused by the incident. Applicant’s vulnerability 1572 The third and fourth respondents acknowledged that the applicant had demonstrated some positive attributes prior to the incident. He had participated in various social and sporting activities and successfully completed Year 12. While not seeking to diminish these attributes and accomplishments, it was submitted that the same had to be viewed in the context of all of the evidence regarding the applicant’s pre-incident personality and development. 1573 There was ample evidence to demonstrate that the applicant had behavioural issues, significant enough to warrant referral to multiple psychologists, prior to 2010.1687 Those behavioural issues included numerous documented instances of aggressive behaviour and difficulties with organisation and concentration, the 1685 FDN 318 at [129] and [163]-[165]. 1686 Ibid at [130]-[132]. 1687 Being contrary to the history apparently provided by the applicant and/or his parents to Dr Kutlaca. -- 297 of 496 -- [2026] SADC 27 292 latter forming part of the basis for the applicant’s diagnosis of ADHD. In addition to ADHD, he was diagnosed with dyslexia. 1688 1574 Relevantly, Dr Lamb had referred the applicant for neurocognitive assessment with Dr Clark. Testing revealed poor impulse control, which Dr Clark had deduced was due to frontal lobe dysfunction, rather than ADHD.1689 1575 These matters were identified by Prof Nielssen as clues that the neurological process was underway.1690 1576 Neither Dr Kutlaca nor Prof McFarlane had been provided with an accurate history outlining these behavioural and cognitive issues. Dr Kutlaca acknowledged that had he been provided with the true facts, it may have affected his views as to the vulnerability of the applicant to schizophrenia.1691 Although Prof McFarlane had resisted fully accepting the significance of these matters, he agreed that it was important for him to take into account the applicant’s history of aggressive behaviour.1692 Course of the illness 1577 It was submitted that although there was insufficient evidence to determine when and if the applicant first became prodromal (that is, he was experiencing attenuated symptoms) but it was likely between about March and August 2012.1693 1578 In the period immediately prior to this, the applicant was in China. The only evidence about the applicant’s time in China came from the applicant himself. Relevantly, the applicant’s parents had thought it was a good idea for him to go to China, and had no concerns about his wellbeing or safety, notwithstanding the decision for him to study in China was apparently made in the immediate aftermath of the incident. The applicant travelled alone, and without his Ritalin. 1694 1579 The applicant’s evidence about his time in China was opposite to the history provided to and relied upon by Prof McFarlane. He gave evidence of drinking, partying and making many friends. He spent time living in student accommodation and with friends, during which he either couch surfed or had his own room. He did not want to come home. He had described periods of being in floods of tears, about monthly, sometimes when drunk, which appeared to be associated with his work at the orphanage, where many babies had died in about one day.1695 1688 FDN 318 at [133]-[154]. 1689 Ibid at [146]. 1690 Ibid at [147]. 1691 Ibid at [150]; T 1116.24-26. 1692 FDN 318 at [151]; T 1875.8-14; T 1529.1-11. 1693 Ibid at [152] and [154]. 1694 Ibid at [176]-[177]. 1695 Ibid at [179]-[184]. -- 298 of 496 -- [2026] SADC 27 293 1580 It was submitted there was no reliable evidence for the Court to make findings about the nature of the applicant’s psychological state while he was in China.1696 1581 The applicant returned from China on 26 December 2011 and thereafter saw several health professionals, including Dr Lamb who considered his presentation unchanged since he last saw him.1697 1582 The applicant’s first psychiatric assessment had not occurred until 26 April 2012, four months after his return from China.1698 He was seen by Dr Rowe, a Psychiatrist of many years’ experience and with a particular interest in assessing and managing patients with PTSD. Dr Rowe took a history of the incident and recorded the applicant as losing faith in humanity. He was alert to the possibility of a diagnosis for PTSD and as such, on 17 May 2012, conducted a structured interview during which he specifically questioned the applicant as to whether he was suffering symptoms to support such a diagnosis. On direct questioning, the applicant denied the re-experiencing symptoms necessary for criterion B and therefore could not satisfy the diagnosis for PTSD. Importantly, at that time the applicant was not psychotic, nor was he involved in litigation.1699 1583 While under Dr Rowe’s care, the applicant’s illness progressed, resulting in an admission to the RAH in October 2012. The diagnosis was first episode psychosis, likely schizophrenia. There was no diagnosis of PTSD and the RAH notes confirmed that Dr Rowe had clarified with the RAH staff that he had not diagnosed the applicant as suffering from PTSD.1700 1584 Neither the applicant, nor his father, accepted the diagnosis of schizophrenia. It was in this context that the applicant attended upon Dr Jasoria, who he had never previously seen, and explained that his psychiatric episode leading to the admission was due to PTSD, rather than schizophrenia. Dr Jasoria did not conduct a diagnostic interview with the applicant. He had described the diagnosis as PTSD on the Centrelink form both to avoid upsetting the applicant and because he thought he had an element of PTSD, notwithstanding he thought the applicant probably had schizophrenia.1701 1585 Thereafter, the applicant suffered further psychotic episodes, resulting in his admission to the Margaret Tobin Centre in July 2013 and again in September 2013. He was not diagnosed with PTSD during either admission.1702 He was detained after assaulting his parents in October 2014 and has remained detained thereafter. 1696 Ibid at [188]. 1697 Ibid at [185]-[187]. 1698 Ibid at [192]. 1699 Ibid at [192]-[201]. 1700 Ibid at [210]-[218]. 1701 Ibid at [219]-[221]. 1702 Ibid at [222]-[231]. -- 299 of 496 -- [2026] SADC 27 294 PTSD 1586 These proceedings were instituted on 31 January 2014 and at that time, did not contain any assertion that the applicant was suffering from PTSD.1703 1587 The applicant was first seen by Dr Kutlaca on 5 December 2017 and was first seen by Prof McFarlane on 27 September 2018. Dr Kutlaca diagnosed the applicant as suffering PTSD as a result of the incident, based on the history provided to him by the applicant, which was demonstrably false. He had relied on assumptions not made out on the evidence, including matters relevant to the applicant’s history, but also, importantly, that both Dr Rowe and Dr Jasoria had diagnosed PTSD. As such, the Court was urged to reject Dr Kutlaca’s retrospective opinion that the applicant had suffered PTSD as a result of the incident.1704 1588 Prof McFarlane diagnosed the applicant with PTSD as at the date of his assessment in September 2018 and, retrospectively, in the period following the incident, and in any event prior to August 2012. 1589 It was submitted that the Court should reject Prof McFarlane’s retrospective diagnosis of PTSD, it being contrary to Dr Rowe’s contemporaneous findings, in the absence of Dr Rowe conceding any error or concern in terms of those contemporaneous findings. It assumed either that the applicant had been guarded when he answered the questions posed of him by Dr Rowe, or that Dr Rowe had not extensively questioned the applicant, neither of which assumptions had any evidentiary basis from either the applicant or Dr Rowe.1705 1590 The criteria for PTSD necessarily relied largely on the accuracy of the patient’s self-reported symptoms, many of which were symptoms also experienced by those suffering schizophrenia and/or ADHD. It also relied on the reported symptoms having an association with the incident and not some other event.1706 1591 Prof McFarlane’s retrospective diagnosis was made over six years after the applicant became prodromal and after he had experienced the considerable trauma associated with his numerous admissions to hospital, the horrific assault on his parents, and his experiences in James Nash House (and Yatala). The evidence demonstrated the applicant to have a fixed view of longstanding that he was suffering PTSD. The history he had provided to Prof McFarlane was unreliable, and inconsistent with other documentary evidence. Some of that history was provided when the applicant was psychotic and delusional during the second interview. Prof McFarlane had made only a cursory attempt to properly consider whether there was the requisite association between the incident and the symptoms reported by the applicant. Further, and importantly, the applicant’s evidence as to 1703 FDN 1 and FDN 2. 1704 Ibid at [302]-[305]. 1705 Ibid at [264] and [278]; T 1878.24-1879.3. 1706 Ibid at [168]-[171]. -- 300 of 496 -- [2026] SADC 27 295 those symptoms was at odds with the history as relied upon by Prof McFarlane, such that there was no basis for the opinion.1707 1592 It was submitted that rather than seek confirmation for his diagnosis, Prof McFarlane simply assumed others had incorrectly failed to diagnose PTSD.1708 Further, the very fact that Prof McFarlane maintained his opinion when faced with evidence which demonstrated the factual basis relied upon by him had not been made out, did not reflect favourably upon him as a witness.1709 1593 It was submitted that the Court should reject Prof McFarlane’s opinion that the applicant developed PTSD prior to developing schizophrenia. Trauma falling short of PTSD 1594 In each of his reports, Prof McFarlane was adamant the applicant had suffered PTSD following the incident and relied on this as providing a causal link to the subsequent development of the applicant’s schizophrenia. 1595 It was submitted that at trial, Prof McFarlane emphasised, throughout his evidence, that trauma of itself, which produced stress, but did not otherwise result in PTSD, was sufficient to result in the subsequent development of schizophrenia. It was submitted that this was clearly a ‘watered down’ proposition from the opinion expressed in his reports, such that Prof McFarlane had effectively changed his evidence at trial, something he would not accept.1710 Prof McFarlane’s hypothesis 1596 The third and fourth respondents described the hypothesis advanced by Prof McFarlane as involving four steps, namely:1711 1. the applicant suffered PTSD (or psychological trauma) as a result of the incident; 2. this trauma response resulted in the dysregulation of multiple neurobiological pathways; 3. as the applicant had some vulnerability to schizophrenia, this process then activated some of the genes implicated in schizophrenia; and 4. that epigenic activation may be relevant to both schizophrenia and PTSD.1712 1597 It was submitted that to the extent the hypothesis required a diagnosis of PTSD, it had not met that threshold. Insofar as it relied only on a trauma response, 1707 Ibid at [267]-[301]; T 1880.7-1881.14; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305. 1708 T 1881.23-31. 1709 T 1880.23-26. 1710 FDN 318 at [247]-[251]. 1711 Ibid at [248] and [252]-[254]. 1712 T 1612.6-26. -- 301 of 496 -- [2026] SADC 27 296 the hypothesis was not supported by the research otherwise relied upon by Prof McFarlane. As to the third and fourth steps, it was submitted that the scientific support for the same was weak, and what support there was, did not provide the basis for a finding of ‘causation’, rather at best, it supported mere ‘association’, falling factually and legally short of causation.1713 1598 Emphasis was placed on the language used by Prof McFarlane when describing his hypothesis, namely that the process described ‘increases the risk of schizophrenia’ and/or ‘contributes’ to the onset of schizophrenia. The strongest words he had used were ‘as a reasonable working hypothesis at a level of probability greater than one as to one, I think it’s in the direction of causation’.1714 1599 Counsel for the third and fourth respondents referred to the recent decision in McNickle v Huntsman Chemical Company Australia Pty Ltd,1715 wherein Lee J addressed how to distinguish between causal and non-causal explanations, particularly where the scientific evidence establishes only an ‘association’. Lee J referred to the Bradford-Hill criteria, also reproduced in the Written Submissions of the Third and Fourth Respondents.1716 As to the factors in that criteria, Lee J had stated:1717 These factors are not intended as a necessary condition for a cause-and-effect relationship, nor a checklist or set of hard and fast rules to be applied in evaluating causation among epidemiologists, Rather, the Bradford-Hill criteria constitutes a guide or set of commonplace propositions which may be taken into account in determining whether or not the Court should infer, on the balance of probabilities, that a particular exposure caused injury. 1600 It was submitted that the only criteria in the list expressly considered by Prof McFarlane was that of temporality, which of itself was tenuous, given the incident occurred in December 2010 and the first episode of psychosis did not occur until October 2012.1718 1601 The second, third and fourth steps of the hypothesis all relied on associations, noting that all of the various papers relied upon by Prof McFarlane were association studies. There was a significant limitation in such studies as the results could in fact simply demonstrate ‘reverse causation’, that is, that people with schizophrenia or those who are developing schizophrenia were more likely to experience trauma or other psychiatric symptoms. It was submitted that this was of particular relevance to the applicant insofar as it was possible that the applicant’s behaviour at the time of the incident was indicative of that process already being underway.1719 1713 FDN 318 at [255]-[257]. 1714 Ibid at [258]-[259]. 1715 [2024] FCA 807 at [106]. 1716 FDN 318 at [260]. 1717 [2024] FCA 807 at [107]. 1718 T 1884.26-32. 1719 FDN 318 at [262]; T 1884.34-38. -- 302 of 496 -- [2026] SADC 27 297 1602 It was submitted that Prof McFarlane had overstated the findings in the various research papers relied upon by him and in particular, the third step of his hypothesis, namely the relationship between environmental and epigenetic factors. He had agreed in cross-examination that Okkels had described the epigenetic theory at the level of possibility.1720 In the most recent scientific statement on this topic, in the paper by Tandon and ors, it was stated:1721 While gene-environment interactions may be of great importance in modifying both the risk and expression of schizophrenia, the process of precisely elucidating their nature is still in its infancy. 1603 As to the various papers relied upon by Prof McFarlane, it was submitted that none supported his theory that a single stressor could cause schizophrenia. 1604 It was submitted that the study conducted by Chen concluded only that individuals exposed to potentially traumatic events were at an increased subsequent risk of incident psychiatric disorders, not that trauma caused schizophrenia. Further, that study was of limited weight insofar as it was based on data obtained from hospital registers which was prone to inflation.1722 1605 Varese’s paper dealt with repeated childhood adversities and their link to subsequent disorders and said nothing about any link between a single event in adult life and the subsequent development of schizophrenia.1723 1606 The study conducted by Shevlin involved research into cumulative trauma. Prof McFarlane had overstated the effect of that study during his evidence-in- chief, but had ultimately agreed that it concluded, ‘a single trauma type did not significantly increase the likelihood of psychosis.1724 1607 The Fusar-Poli study said nothing about causation.1725 1608 For these reasons, it was submitted that Prof McFarlane’s hypothesis should be rejected. Even if accepted, it was submitted there was simply no evidence to assume that the applicant fell within the small minority of cases where any link between PTSD and schizophrenia was said to be present.1726 Conclusion 1609 The Court was urged to accept Prof Nielssen’s opinion, supported by numerous studies including those by Radua and Tandon, namely that there was no reliable research showing a causative link between psychological trauma and 1720 FDN 318 at [307]; T 1625.7-21. 1721 FDN 318 at [308]. 1722 FDN 318 at [312]-[315]. 1723 Ibid at [316]. 1724 Ibid at [319]-[321]. 1725 Ibid at [326]. 1726 Ibid at [328]. -- 303 of 496 -- [2026] SADC 27 298 schizophrenia.1727 As such, the Court should not find that any breach of duty by the third and fourth respondents was a necessary condition of the applicant’s schizophrenia. Analysis of the evidence Preliminary observations 1610 All of the witnesses who gave evidence as to their observations and recollections of what occurred at the party and with respect to the incident, were being asked to recall events that had occurred more than 12 years earlier. 1611 When giving evidence relevant to causation, the applicant and Mr and Mrs Chattaway were, at times, being asked to recall matters from even earlier, when the applicant was a young boy and young teenager. 1612 In assessing that evidence, I have taken into account the effect of the passage of time on human memory. Human memory is fallible and such fallibility only increases over time. The processes of memory can be overlaid, either consciously or sub-consciously, by perceptions of self-interest and/or a process of reconstruction. A person’s memory can also be impacted by the possible effect of rumours and discussions of events with others. 1613 The applicant submitted that the Court should be mindful of the possibility the evidence of various witnesses was affected by bias, whether that be conscious or unconscious bias. It was submitted that the Court should be alive to the potential for collusion or contamination as between friends and family members, particularly where they shared an interest in the outcome of the proceedings. 1614 While these submissions were directed towards the Court’s assessment of the witnesses called by the respondents as to the circumstances of the party and the incident, they logically must also extend to the Court’s assessment of the evidence given by the applicant and Mrs and Mrs Chattaway. 1615 I have carefully considered the potential for such bias and/or collusion and/or contamination in my assessment of all of the lay witnesses, notwithstanding some of those witnesses were not, in fact, questioned as to the potential for any such contamination or collusion. I have been careful to critically assess the evidence by reference to other objective and/or documentary evidence or evidence which is independent of those persons or parties. 1616 In undertaking my assessment of the evidence, I have considered all of the evidence. The fact that my assessment of the evidence appears in this judgment in a certain order is simply due to the practical difficulty posed by the sheer volume of the evidence. 1727 Ibid at [242]-[244] and [330]. -- 304 of 496 -- [2026] SADC 27 299 Jones v Dunkel Missing witnesses 1617 In his closing submissions, the second respondent advanced a submission that a Jones v Dunkel1728 inference ought to be drawn against the applicant arising from his failure to call evidence from any other partygoer to support the applicant’s version of events.1729 1618 By way of reply, the applicant submitted that in circumstances where the second respondent also carried an evidentiary burden (to prove self-defence) the very same argument could be levelled at him, particularly as to the failure to call evidence from either Megan Voo or Bryony Hardy.1730 1619 The applicant also sought a Jones v Dunkel inference be drawn against the third and fourth respondents arising from their failure to call evidence from Owen’s girlfriend at the time, Alexandra Donovan. 1620 The third and fourth respondents advanced similar submissions with respect to the applicant’s failure to call evidence from Dr Nabi (or any other treating practitioner) as to the potential impact of the applicant’s mental health on the reliability of the applicant’s evidence. They also submitted that the applicant’s failure to adduce any evidence from Dr Rowe as to his opinion that the applicant was not suffering PTSD, should form the basis for a similar adverse finding.1731 General principles 1621 The rule in Jones v Dunkel can be summarised in the following terms:1732 The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may, in appropriate circumstances, support an inference that the uncalled evidence would not have assisted the party’s case. That is particularly so where it is the party which is the uncalled witness. The failure to call the witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn. ... 1622 The rule can operate against a party who does not bear the burden of proof but will often have operation where a party does bear the burden of proof on a matter.1733 As outlined in Cross on Evidence:1734 The significance to be attributed to the fact that a witness did not give evidence will in the end depend upon whether, in the circumstances, it is to be inferred that the reason why the witness was not called was because the party expected to call him feared to do so. But there 1728 (1959) 101 CLR 298. 1729 FDN 321 at [63]. 1730 FDN 327 at [132]-[135]. 1731 T 1878.24-1879.3. 1732 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at [63]-[64]. 1733 Ho v Powell (2001) 51 NSWLR 572 at [16]. 1734 14th edition at [1215]. -- 305 of 496 -- [2026] SADC 27 300 are circumstances in which it has been recognised that such an inference is not available, or, if available, is of little significance. The party may not be in a position to call the witness. He may not be sufficiently aware of what the witness would say to warrant the inference that, in the relevant sense, he feared to call him. The reason why the witness is not called may have no relationship with the fact in issue: it may be related to, for example, the fact that the party simply does not know what the witness will say. A party is not, under pain of a detrimental inference, required to call a witness ‘blind’. ... A Jones v Dunkel inference may not arise if, for example, the witness has a reason for not telling the truth or refusing to assist and the party who may well call him is aware of this.1735 1623 The rule cannot be used to fill in gaps in the evidence or to convert suspicion or conjecture into an inference. However, it can be used to resolve a doubt or ambiguity adversely to the party who did not call the witness.1736 1624 The rule only applies where a party is ‘required to explain or contradict’ something, which necessarily turns on the facts in issue and where the trier of fact is satisfied that it is probable the missing witness would have had knowledge to give evidence of a relevant fact in issue. Further, the rule cannot be applied unless the party might reasonably be expected to call the witness.1737 Any explanation for the failure to call such a witness must be established by evidence, rather than mere conjecture arising from the passage of time.1738 1625 The principles can apply to the failure by a party to ask a witness called by that party questions in chief, and an omission to ask a question or questions of such a witness, on an issue clearly in dispute, can be considered more significant than a failure to call the witness. The presumption that the evidence would not have been favourable to that party’s case is considered stronger than the presumption arising from a failure to call the witness.1739 1626 The rule can also apply to a failure to call an expert witness or question an expert witness on a matter in dispute.1740 1627 Importantly, the principles in Jones v Dunkel may apply to both parties. That is, competing inferences may arise that the uncalled evidence would not have assisted either side.1741 Lay witnesses 1628 There were obviously many partygoers who were not called by any party to give evidence, with no explanation given as to why. However, it is inefficient and 1735 Jones v Dunkel (1959) 101 CLR 298 at [308], [312] and [320]-[321]. 1736 Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) (2006) 229 ALR 136 at [50]. 1737 Ibid. 1738 West v Government Insurance Office (NSW) (1981) 148 CLR 62 at [70]. 1739 Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at [418]-[419]; HIA Insurance Services Pty Ltd v Davy (2003) 7 VR 512 at [31]. 1740 Ta Ho Ma Pty Ltd v Allen (1999) 47 NSWLR 1 at [4]. 1741 Brandi v Mingot (1976) 12 ALR 551 at [560]. -- 306 of 496 -- [2026] SADC 27 301 of no real assistance to the Court for multiple witnesses to be called to effectively give the same evidence on peripheral, rather than integral, topics. It is possible that many partygoers would not have been able to shed any further light on a material fact in issue, given the passage of time, and the fact that this was just one of many 18th birthday parties they attended in their final year of school. 1629 There was no evidence to suggest that Alexandra Donovan was likely to give evidence on any matter in issue that would benefit the Court. She was not said to be privy to any discussion between Owen and Lloyd (and others), or to be anywhere in the vicinity of the incident. Multiple witnesses were called to give evidence as to the general party atmosphere and circumstances. I decline to draw any Jones v Dunkel inference from the third and fourth respondent’s unexplained failure to call Alexandra to give evidence. 1630 However, there were, in my view, several witnesses who were likely able to give relevant evidence on a fact in issue. Those witnesses included: • the applicant’s friend, Terry Wilkinson. He is likely to have been able to give evidence on two material issues, namely, whether prior to the party, the applicant consumed any alcohol (and if so, how much) and whether, at any time during their friendship, the applicant consumed cannabis in his presence. He may also have been able to give evidence on his interactions with the applicant after the party, before he left for China and after he returned, which may have assisted the Court; • the applicant’s friend, Courtney Barber, who was said to have accompanied the applicant in the ambulance and was likely to be able to give evidence as to whether it was the applicant, or someone else, who gave the history to ambulance personnel as recorded in Exhibit P12, in particular, the history that he had been ‘hit in face with bottle’. She may have also been able to give evidence as to whether at any time during her friendship with the applicant, she had seen him consume cannabis; • the applicant’s friend, Will Allen, with whom the applicant said he spent time at the party. He may have been able to give evidence as to his observations at the party, the applicant’s behaviour generally at the party and, whether during his friendship with the applicant, he ever saw him consuming cannabis. He may have also been able to give evidence as to his interactions with the applicant in the period after the party, prior to the applicant leaving for China, and any such interactions with the applicant following his return from China; and • Megan Voo, who Dunn-Lawless said was sitting at the table, on the grassed area, at the time he left that table, immediately prior to the incident. Although Dunn-Lawless did not give evidence as to precisely where Ms Voo was sitting, it is likely that she would have been able to give evidence either (a) that she did not see what immediately preceded the -- 307 of 496 -- [2026] SADC 27 302 incident and/or the incident because of her position on that table; or (b) describing what she did see both immediately before, during and after the incident or, (c) that she was not at the table at the time of the incident or immediately prior thereto, contrary to Dunn-Lawless’ recollection. 1631 Terry Wilkinson, Courtney Barber and Will Allen are witnesses I would have expected be called by the applicant, or at the very least their absence explained. I am satisfied that they were witnesses who can be considered to have been ‘in the applicant’s camp’ and therefore unlikely to have been called by another party. 1632 Megan Voo was with the ‘Scotch’ group and therefore someone who was in the ‘camp’ of the second respondent and someone I would have expected be called by him, or her absence explained. 1633 As to Bryony Hardy, she may have been able to confirm or deny whether she did drive Lloyd and Dunn-Lawless (and Ms McCallum) home from the party and what occurred immediately after the party in that respect. This evidence may have assisted the Court in its overall assessment of the reliability and credibility of the evidence given by Dunn-Lawless and Ms McCallum. However, the same could be said of numerous other witnesses who were not called, in terms of corroborating or refuting aspects of the accounts given by the applicant, Dunn-Lawless, Owen and/or Ms McCallum. 1634 Another witness who could be said to fall in this latter category is the applicant’s older brother, William. He is likely to have been able to give evidence about the circumstances in which the applicant injured his finger on a glass window at home in May 2009. Again, that evidence was relevant insofar as it would have assisted the Court in its overall assessment of the reliability and credibility of the evidence given by the applicant and Mrs Chattaway. However, whether the applicant was, in fact, arguing with William, before the incident does not, of itself, assist the Court to determine any other issues in dispute. There was no suggestion that William witnessed this incident involving the window/glass door, merely that he may have been privy to what preceded it. 1635 Although both of the applicant’s brothers may have also been able to provide relevant evidence as to causation (and in particular their observations of the applicant’s behaviour in the period prior to the incident, the period immediately thereafter, and following his return from China), both brothers were several years older than the applicant. I am unaware if either brother was living in Adelaide and/or with the applicant (and if so, precisely when) during those periods. They may have also been able to assist the Court by providing evidence as to whether either of them had ever suffered a mental illness, being a history apparently provided by the applicant to Dr Rowe, the truth of which was denied by both the applicant and his parents. 1636 After careful consideration, I consider it appropriate to draw the following inferences: -- 308 of 496 -- [2026] SADC 27 303 1. that the evidence of Terry Wilkinson, Courtney Barber and Will Allen would not have assisted the applicant’s case; and 2. that the evidence of Megan Voo would not have assisted the second respondent’s case. 1637 I am not prepared to draw any more significant adverse inference against either party. Expert witnesses 1638 The applicant denied the applicability of Jones v Dunkel principles to expert witnesses, particularly in circumstances where the witness was called and available for cross-examination.1742 As outlined above, I am satisfied the principles can apply, in certain circumstances, to expert witnesses. 1639 I will deal first with the issues relating to Dr Rowe. 1640 As previously stated, a letter from Dr Rowe to Dr Watson dated 25 October 2012 was tendered by the applicant.1743 In that letter, Dr Rowe expressly referred to the fact that he had questioned the applicant to determine whether he was suffering from PTSD and the applicant denied having experienced any ‘reexperiencing’ symptoms at any stage, thus precluding a diagnosis of PTSD. That history, and opinion, was in evidence tendered by the applicant, and, on its face, adverse to the applicant’s case. Dr Rowe was then cross-examined to further explain why he reached that opinion, at that time. 1641 I decline to draw any adverse inference arising from the applicant’s failure to further question Dr Rowe on that topic. 1642 The issue relating to the lack of evidence relating to the applicant’s mental health, at the time he gave evidence, is more vexed. 1643 It is for the Court to assess a witness’ reliability and the opinion of an expert witness cannot usurp or purport to usurp that role. However, in making that assessment the Court must have regard to all of the evidence including relevant expert medical evidence. 1644 This Court made it clear to the applicant that it considered medical evidence as to the current status of the applicant’s mental health to be relevant material that should have been before the Court. This material was obviously relevant by way of explanation for the considerable delays which besieged the trial. However, it was also relevant to assist the Court to understand whether the applicant’s mental illness at the time he gave evidence and/or the medication he was taking may have impacted on his overall presentation (and/or memory) and if so, how. It was potentially relevant to explain whether the trauma of and incidental to the 1742 T 1900.11-1901.2. 1743 Exhibit P55. -- 309 of 496 -- [2026] SADC 27 304 applicant’s mental illness, and/or his attack on his parents and/or the impact of detention/isolation and experiences therein, may have had on his memory per se. 1645 The applicant was on notice from at least 9 December 2021, when the Court delivered its Reasons on the first application seeking a separate trial on liability, that the Court considered such evidence to be important evidence which would be before the Court.1744 1646 The ‘best evidence’ to assist the Court to understand the nature and impact of the applicant’s mental health at the time he gave his evidence, was evidence from his treating specialist. 1647 In addition, although portions of the records from Farmfield Hospital and Broadmoor Hospital were in evidence, the Court was not privy to any other documentation relevant to the applicant’s experiences in detention and custody, including at James Nash House and Yatala Prison in the years prior to his transfer to the UK. These documents were relevant insofar as they would have shed light on the nature of the applicant’s experiences (and therefore the extent to which he may have experienced trauma) during this period, particularly prior to his examination by Prof McFarlane. 1648 There was no explanation as to why such material was not before the Court, nor any explanation as to why Dr Nabi was not called to give her expert opinion as to the impact of the applicant’s mental health, and his medication, on both his presentation and memory, as at the time he gave evidence. 1649 In these circumstances, I consider it appropriate to draw the inference that such evidence would not have assisted the applicant’s case. Impact of mental health issues on the applicant’s evidence Special arrangements 1650 The Court never received any documentation from any medical practitioner or specialist expressing an opinion that the applicant is or was mentally unfit to give evidence at any material time. 1651 Notwithstanding the applicant suffered a significant deterioration in his already fragile mental health in January 2023, a forensic decision was made to call him to give evidence at the trial. That decision having been made, the Court put in place special arrangements to accommodate the giving of that evidence. 1652 When the applicant first gave evidence in March 2023, the Court sat in the morning, meaning it was nighttime in the UK. This arrangement was made in consultation with the applicant’s solicitors. No information was provided to suggest that this time was inappropriate to Broadmoor, or the applicant, or was otherwise not conducive to the applicant giving his ‘best evidence’ within the 1744 Chattaway v Lloyd and Ors [2021] SADC 141 at [100]-[101]. -- 310 of 496 -- [2026] SADC 27 305 confines available. That is, the confines otherwise imposed by the fact the applicant had left the jurisdiction (upon his application) after the trial date had been listed and was giving evidence from a secure mental facility, via video-link, as per his application to do so. 1653 It must not be forgotten that when the Court granted the applicant’s application to give evidence via video-link, he was a patient at Farmfield Hospital. The Court had received and considered information provided by Dr Mark Harrison from Farmfield explaining how that evidence could be properly and best taken. No such material was provided by the Broadmoor Hospital prior to the applicant giving evidence in March 2023, despite the Court repeatedly requesting the same. 1654 No significant technical issues were encountered when the applicant gave his evidence in March 2023. On 22 March 2023, the Court sat only from 7:53am to 9:40am (ACDST), that is, between 9:23pm and 11:20pm UK time. During that period, the Court took several breaks, both to accommodate the applicant’s particular needs and to ensure relevant documentation was available to be shown to him. The applicant was still giving evidence-in-chief when the Court was informed he was too tired to continue beyond 9:40am (ACDST). 1655 The next day, the applicant was scheduled to resume giving evidence at 7:30am (ACDST), that is, 9:00pm UK time. The Court was only able to sit until 9:15am for unrelated reasons but was intending to continue to hear the applicant’s evidence the following day. Prior to the applicant resuming his evidence that day, the Court was informed that Broadmoor would not accommodate the applicant giving evidence beyond that date, either at that hour of the day, or any other hour. As outlined above, no material was provided at that time by Broadmoor by way of explanation. 1656 When the applicant returned to give evidence in February 2024, the Court sat at night, meaning it was morning in the UK. This time was the preferred time as then advised by Broadmoor. During the first day, there were numerous technical difficulties experienced with the video-link. As a result, a decision was made to adjourn earlier than anticipated, with a view to investigating the best way to proceed to avoid such issues. 1657 Thereafter, although there were some minor technical issues encountered, they did not, in my view, impact materially on either the applicant or the Court. 1658 The Court continued to take frequent breaks and only sat for limited hours each day. 1659 Every effort was made by the Court to provide what assistance it could to enable the applicant’s evidence to be best presented, in all of the circumstances. -- 311 of 496 -- [2026] SADC 27 306 Applicant’s presentation 1660 The applicant presented as a witness of above average intelligence. He spoke well and used sophisticated language, consistent with his family background and schooling. 1661 When the applicant first gave evidence in March 2023, he presented in a relatively calm manner, save and except during certain periods of cross- examination, when he became somewhat argumentative and defensive, particularly when he was cross-examined by Dunn-Lawless. He appeared to be alert and when giving any visible sign of tiredness, was offered (and accepted) an opportunity for a break, or for the session to end. 1662 The applicant’s affect was mostly flat. There were occasions when he displayed an ‘unusual’ look on his face (insofar as his facial response was not otherwise consistent with the prevailing circumstances). He did not present as overtly ‘maniacal’. 1663 The applicant’s presentation in February 2024 was quite different. At times, particularly on the first day giving evidence,1745 he appeared to be labouring under the effects of tiredness and/or medication. He informed the Court that he was on ‘a huge dose of tranquilisers’ which caused tremors and was making him very sleepy, such that he was finding it difficult to answer the questions posed of him.1746 1664 The Court subsequently received a copy of an email provided by Dr Nabi’s Personal Assistant to Mr Kerin, which confirmed that the applicant was having his medication at night rather than in the morning before court and that his drowsiness may have had less to do with that and more with the fact that Court started quite early for him. It was determined that the applicant would be given his medication even earlier, with a view to assisting with his drowsiness.1747 1665 The applicant gave evidence during cross-examination that he was taking the maximum dose of Clozapine (700 mg) and that this affected his memory, as it was quite sedating.1748 In addition, he was taking Tegretol, a mood stabiliser. When asked if this drug affected his ability to understand and to communicate he said, ‘Yes, of course it does’.1749 He explained that it slowed him down and made it hard to think, albeit he considered his long term memory to be quite good, despite his drug regime.1750 He denied a proposition that his mental health had impacted on the 1745 Monday 5 February 2024. 1746 T 1242.37-38; T 1245.1-4. See exchange between me and counsel for the applicant on this issue at T 1246.22-1248.1. 1747 Email sent 6 February 2024 at 1:04am. 1748 T 1334.18-1335.1. 1749 T 1335.33. 1750 T 1335.35-1336.7. -- 312 of 496 -- [2026] SADC 27 307 content of his memory and said, ‘my memory is fine’.1751 He also denied being mentally ill.1752 1666 During cross-examination, the applicant was routinely argumentative and demonstrably sarcastic, particularly when various propositions were put to him about aspects of his presentation, consistent with psychosis, that had been noted by Broadmoor staff from time to time. When faced with a line of questioning that he did not think appropriate or relevant, he resorted to engaging in non-sensical ‘rants’.1753 1667 Importantly, at various times during his evidence, the applicant himself denied the accuracy of various statements said to have been attributable to him, as recorded in hospital notes during his various psychiatric admissions, on the basis that he claimed he was mentally unwell when he purportedly said such things. Farmfield and Broadmoor Hospital records 1668 It is apparent from the Broadmoor Hospital records, and I find, that when the applicant gave evidence in March 2023, his mental health was such that he posed a threat to other patients and staff and was secluded from others. I accept the documented observations of Broadmoor Hospital staff that on 22 March 2023, while giving evidence, the applicant was agitated and shaking his legs repeatedly. In the early hours of the next morning and throughout the next day he was observed to demonstrate increasing psychotic symptoms, for example, laughing to himself, experiencing auditory hallucinations and holding his breath for lengthy periods. 1669 I acknowledge that the psychotic symptoms identified by Broadmoor staff during February to April 2023 were intermittent. At times, the applicant was calm, co-operative and polite. However, at other times he was described as ‘very psychotic’, with behaviours observed including banging and kicking doors, laughing to himself and holding conversations with others who were not there. 1670 Notwithstanding the applicant’s relatively calm demeanour when giving evidence, I am satisfied, both from the documented observations of Broadmoor Hospital staff and my own observations of the applicant, that at the time he gave evidence in March 2023, the applicant was very mentally unwell and likely experiencing intermittent episodes of psychosis at that time. 1671 The letter provided by Dr Nabi dated 15 May 2023, confirms that Broadmoor refused to allow the applicant to continue to give evidence at that time because his mental health posed too great a risk for him to be taken out of seclusion, for that purpose. This supports my finding above. 1672 The Broadmoor Hospital records confirm, and I find, that thereafter, during 2023, the applicant’s mental health was particularly poor during periods when he 1751 T 1372.31-38. 1752 T 1373.2-9. 1753 For example, see T 1364.13-34. -- 313 of 496 -- [2026] SADC 27 308 was non-compliant with his medication, thus necessitating intervention by staff. The fact that in November 2023, Dr Nabi considered the applicant was not mentally well enough to give evidence, albeit technically had the capacity to do so, is telling. I consider it likely and find that this opinion was expressed with the benefit of knowledge and hindsight gleaned from the experience of the applicant giving evidence in March 2023. 1673 By February 2024, there had been some improvement in the applicant’s condition. However, it is of note that Broadmoor staff continued to report observations of the applicant displaying psychotic symptoms during the period he gave evidence. 1674 I agree with the submissions made by the third and fourth respondents, that the applicant’s presentation at that time remained consistent with him having significant ongoing difficulties with his mental health. Indeed, in my view, his overall presentation was even poorer than at the time he gave evidence in March 2023. During cross-examination, he smiled and laughed inappropriately and expressed ongoing beliefs that the Stonemasons had influenced the course of his studies. He demonstrated poor insight as to his illness, for example, insofar as he maintained it was his medication that was making him mentally unwell. As stated earlier, at times when faced with questions on topics that troubled him, he embarked on meaningless rants. He was clearly very mentally unwell. Expert evidence on this issue 1675 As previously stated, in the absence of the applicant calling evidence from Dr Nabi (or any other treating psychiatrist or medical practitioner) on this issue, I have inferred that such evidence would not have assisted the applicant’s case. 1676 I accept the evidence of Prof McFarlane, supported by that of Prof Nielssen, that trauma can impact on a person’s memory. The applicant gave evidence of having experienced several very traumatic incidents, after the incident. These included his experience in China, when he assisted at an orphanage at a time when eight babies died in about one day but more importantly, the horrific attack on his parents. They included him having been physically assaulted in James Nash House and many other traumatic experiences at James Nash House, Yatala, Farmfield and Broadmoor. 1677 I accept the evidence of both Prof McFarlane and Prof Nielssen that if a person is psychotic when giving a history of events, psychosis can influence their memory and can change their memory. I also accept Prof Nielsen’s evidence that psychotic episodes can add information to a person’s firm memory. 1678 Both Prof McFarlane and Prof Nielssen confirmed that in their own assessments of the reliability of what the applicant was telling them, they had regard to whether the provided history was consistent, or otherwise inconsistent, with other information provided to them. This must necessarily include the information included in the various medical records provided to them, and the -- 314 of 496 -- [2026] SADC 27 309 histories as outlined by the other doctors who had provided reports relevant to the applicant. 1679 Dr Kutlaca, Prof McFarlane and Prof Nielssen all recorded obtaining histories from the applicant about important matters (such as the period during which he was hospitalised following the incident and following surgery with Prof David) which histories were demonstrably false. While this is important insofar as that material formed the basis upon which those experts expressed their opinions, it also likely demonstrates the impact of the applicant’s mental health issues on his overall reliability. Conclusion 1680 The applicant suffers from treatment resistant schizophrenia. This is a psychotic illness which involves perceptual disorders including delusions (that is, fixed beliefs in something false) and hallucinations (perceiving things which are not real). 1681 I accept that simply because the applicant suffers from this illness, does not of itself, mean he is incapable of giving reliable evidence and/or incapable of accurately recalling events. 1682 However, the applicant himself denied the truth of various comments said to have been made by him to hospital staff during his various psychiatric admissions, most notably on the issue of prior drug use, on the basis that he was mentally unwell at the time he purportedly made them. Mr Chattaway, similarly, gave evidence that when the applicant was unwell, he could effectively say anything, but that did not mean that what he was saying was true. 1683 The applicant remained detained, in a secure mental health facility, while giving his evidence. 1684 I am satisfied, having regard to all of the evidence, that at the time he gave his evidence in both March 2023 and February 2024, the applicant was extremely mentally unwell. This is apparent from the contemporaneous records received from the Broadmoor Hospital. It was also apparent from his presentation and the way in which he responded, at various times, during his evidence. 1685 Further, when giving evidence in February 2024, the applicant himself recognised the impact of his medication on his clarity of thought. 1686 Having regard to all of the evidence, I am satisfied that the applicant’s ability to accurately recount events from his past, including the circumstances of the incident, and precisely what symptoms were suffered by him in the aftermath of the incident, was compromised at the time he gave his evidence in March 2023 and February 2024, due to his ongoing treatment resistant schizophrenia, the effects of medication and multiple past traumas. -- 315 of 496 -- [2026] SADC 27 310 1687 As I said, that does not, of itself, mean that all of the applicant’s evidence was unreliable. However, as Prof McFarlane acknowledged, in considering the reliability of the applicant’s evidence and the weight I attribute to it, it is important to carefully assess that evidence in terms of where it fits (or does not fit) with other reliable evidence that I do accept. I have very carefully undertaken that task in my assessment of the applicant’s evidence. Expert evidence – applicant’s level of intoxication at time of incident 1688 Prof White expressed the opinion that the applicant’s likely blood alcohol concentration at the time of the incident was within a range of between 0.140 to 0.151%. That opinion was based on a number of underlying assumptions, namely:1754 • the incident occurred at 10:30pm on 5 December 2010. As outlined hereunder, I am satisfied the incident occurred between 10:30pm and 10:40 pm on 5 December 2010, consistent with this assumption; • at that time, the applicant weighed approximately 90 kg and was 188 cm tall. I accept Mrs Chattaway’s evidence that at the time of the incident the applicant weighed between 85 and 90 kilograms and was about 6 foot 2, consistent with this assumption;1755 • the applicant last consumed a substantial meal at about 6:00pm that evening. The applicant gave evidence he consumed a barbecue meal consisting of steak, sausage, salad and vegetable burgers, shortly after he arrived at the party.1756 Having regard to all of the evidence, I am satisfied as to the general accuracy and validity of this assumption; • the applicant was drinking beer between 6:00pm and about 10:30pm.1757 Although the applicant gave evidence he started drinking between 4:00pm and 5:00pm, having regard to all of the evidence, I am satisfied as to the validity and accuracy of this assumption; • the applicant did not consume any food or alcohol between the time of the incident and the time of the breath test. The applicant was receiving assistance from those at the party, ambulance personnel and RAH emergency staff during this period. I am satisfied as to the validity and accuracy of this assumption; 1754 Exhibit R35 at pp 1-3. 1755 T 99.10-15; T104.8-12. 1756 T 261.18-34. 1757 As per the applicant’s evidence at T 264.1-8. -- 316 of 496 -- [2026] SADC 27 311 • the applicant’s breath test administered at the RAH at 11:35pm on 5 December 2010 was 0.129%. I accept the validity and accuracy of this assumption;1758 • the applicant vomited between the time of the incident and the time of the breath test meaning post-incident alcohol absorption was negligible. 1759 This assumption accords with what is on the SA Ambulance Patient Report Form, that is, ‘Vomit large quantity’1760. I accept the validity and accuracy of that assumption; and • the average rate of elimination of alcohol from a person’s body is 0.015% per hour. I accept Prof White’s expertise to make that assumption, and the validity and accuracy of that assumption. 1689 I accept Prof White’s expertise and that opinion. 1690 I also accept Prof White’s opinion that it is likely that the applicant’s blood alcohol concentration at the time of the incident was 0.145%, being the equivalent of the applicant having consumed 13.6 standard drinks between 6:00pm and 10:30pm. I accept his opinion that the consumption of alcohol, likely caused impairments to his cognitive functioning, resulting in errors of judgment and poor decision making. It may have caused the applicant to be disinhibited and to engage in impulsive or risky behaviours. In addition, I accept Prof White’s evidence that the applicant was likely to have had some difficulty in perceiving his environment and therefore may have failed to perceive objects or events around him that would be obvious to a sober person. 1691 I also accept Prof White’s opinion that although the applicant’s memory of events may have been impacted by his alcohol consumption, it was unlikely that level of intoxication, of itself, would result in him having false memories (ie a memory of events which did not actually occur). Expert evidence – bottles or fists? 1692 The Court had the benefit of hearing the evidence of A/Prof Pennington and his views on the opinion expressed by Prof David. 1693 However, A/Prof Pennington’s opinion as to the likely cause of the applicant’s injuries was based on his analysis of the papers. He did not have the benefit of a clinical examination of the applicant at any time, nor did he have the benefit of obtaining a direct history from him. 1694 Some of the materials upon which A/Prof Pennington based his opinion were not in evidence, namely the police statement made by the applicant dated 16 February 2012 and various emails from SAPOL. A/Prof Pennington agreed that 1758 Exhibit R42 at p 278. 1759 See cross-examination on this topic at T 769.11-770.24 and re-examination at T 771.26-772.1. 1760 Exhibit P12 at p 1. -- 317 of 496 -- [2026] SADC 27 312 in expressing his opinion, he had relied on an assumption that the applicant saw Lloyd, standing next to him, with a champagne bottle in his hand, after he was struck. There was no such evidence given at trial. A/Prof Pennington also assumed that Prof David had initially expressed the opinion that the applicant had been hit in the face with a champagne bottle, albeit he stated that his opinion as to likely mechanism of the applicant’s injuries would be no different if he had not made that assumption. 1695 A/Prof Pennington is a Plastic Surgeon with his primary expertise in breast reconstruction, trauma and hand surgery. He has over 35 years’ experience in plastic surgery, including the treatment of facial fractures. 1696 Drawing on that experience, A/Prof Pennington stated that the type of facial fracture sustained by the applicant was most commonly encountered when the face (the nose and orbit) was struck by a solid object. He acknowledged that it was possible such an injury could result from a punch or punches, but suggested this was less likely, as, in his view, such punches would need to be delivered by a trained boxer or karate expert. 1697 A/Prof Pennington’s view that the injuries were more likely caused by the applicant being struck on the nose by a heavy bottle (and specifically either a full or half full bottle), rather than a fist or fists, was premised on his experience as to the frequency with which he had seen such injuries caused by contact with a solid object, as compared to fists. In other words, he had based that opinion on statistics or mathematical probabilities. The relevant evidence was given in cross- examination:1761 Q. Turning to your opinion, I accept you don't express it this way, but your opinion is ultimately biomechanical, isn't it, it's a description or an assumption about the forces that were applied to the area of the eye and nose. A. Yeah, combined with the experience of similar injuries and how they were caused, yes. Q. So, it's not an analysis of the force per se, it's your experience that injuries like these may be caused by the application of some external force, and then you've borne in mind some examples that you have seen. Is that the reasoning process. A. Yeah, but I would state it more strongly, that that kind of injury is uncommonly caused by fists and much more commonly caused by a hard object, that was my opinion. Q. So, it's a question of frequency. A. Yes. 1698 In other words, A/Prof Pennington’s opinion is not that the applicant’s injuries are inconsistent with the applicant being struck by fists. He accepted that 1761 T 61.3-20. -- 318 of 496 -- [2026] SADC 27 313 the injuries could have been caused by fists, albeit more commonly, such injuries were caused by a hard object. 1699 The relevant standard of proof that I must apply in this matter is satisfaction on the balance of probabilities. This does not equate with mere satisfaction as to the balance of probabilities. The Court is not to take an entirely probabilistic approach when making findings of the facts in issue. It must look at all of the evidence to determine whether it is actually persuaded of the fact in issue.1762 1700 The applicant gave evidence at trial that he was struck at least five times, including over the back of his head. He denied that any of those strikes were from fists – they were all from bottles. He said that he had tried to put his arms up to block the blows, which had damaged his arms. 1701 In giving his opinion as to the likely mechanism of the injury, A/Prof Pennington assumed that the applicant had deflected some of the blows by holding his arms in front of his face to protect himself. He therefore disagreed with the opinion expressed by Prof David that he would have expected the applicant to have suffered more severe injuries if he had been struck by a bottle even four or five times. 1702 However, the SA Ambulance Patient Report Form makes no reference to the applicant having suffered any injuries to his arms, consistent with him using his arms to shield his face from several blows from a bottle, or any injury to the back of his head. Similarly, there is no reference in any of the RAH materials to the applicant either presenting with, or complaining about, or exhibiting any injuries consistent with him having been struck on the arms by any object and/or struck over the back of the head with any object. 1703 I am therefore unable to accept the applicant’s evidence that he used his arms to shield himself from multiple blows by a bottle. It follows that the factual foundation for the assumption relied upon by A/Prof Pennington as outlined at paragraph 798 herein is not made out. 1704 As previously stated, Prof David was not subjected to cross-examination, nor did the Court have the benefit of any evidence from him as to his views on the evidence given by A/Prof Pennington. 1705 However, Prof David was the treating surgeon who operated on the applicant. His area of speciality is cranio-facial surgery and he is renowned as one of the leading experts in that specific surgical field. He had the considerable benefit of carefully examining the applicant prior to surgery, seeing first-hand the precise nature of the injuries suffered by the applicant and determining the appropriate surgical intervention and care he required for those injuries. He also had the benefit of reviewing the applicant after surgery. 1762 SGIC v Laube (1984) 37 SASR 31 at [33]. -- 319 of 496 -- [2026] SADC 27 314 1706 As previously stated, I am satisfied that the statement made by Prof David in his first letter to Mr Pipinias as outlined at paragraph 773 herein, was him simply recounting the history that had been provided to him by the applicant, rather than an expression of an opinion held by Prof David that the applicant had, in fact, been hit in the face with a champagne bottle, and then hit again by a big beer bottle. 1707 I disagree with the applicant’s submission that Prof David changed his opinion as to the likely cause of the applicant’s injury, when he subsequently stated that the injuries were equally consistent with having been caused by the application of significant blunt trauma by clenched fists. This is abundantly clear from Prof David’s statement.1763 1708 I accept Prof David’s opinion that the injuries he observed to the applicant’s face were consistent with the applicant being struck at least twice in the face, with one blow to the right side of his face and one blow to the left. I accept his opinion that the injuries could not have been caused by only one blow. 1709 I accept Prof David’s opinion that had the applicant been hit no more than four of five times about the face with a bottle, he would have expected him to suffer significantly more severe injuries. 1710 I prefer and accept Prof David’s opinion, namely, that the facial injuries sustained by the applicant are equally consistent with the applicant having been hit in the face twice with a bottle and with the applicant having been the victim of significant blunt trauma caused by clenched fists. It follows that I do not accept A/Prof Pennington’s opinion that it is more likely the applicant’s injuries were caused by being hit about the face with a heavy bottle, rather than with fists, that opinion being based on statistical probabilities. Mr and Mrs Chattaway General observations 1711 Mrs Chattaway was the only witness called by the applicant, other than the applicant himself, who gave evidence relevant to both liability and causation. I have assessed the whole of her evidence, having regard to all of the evidence. Mr Chattaway’s evidence was essentially confined to matters relating to causation. 1712 I have outlined in some detail the evidence given by both Mr and Mrs Chattaway as to their recollection of the applicant’s behaviour and development as a child. Numerous aspects of that evidence were inconsistent with the documentary evidence which demonstrated that contrary to their evidence, the applicant had struggled for many years, both from a behavioural and academic perspective, in the years prior to the incident. 1763 Exhibit R22 at [5]-[6]. -- 320 of 496 -- [2026] SADC 27 315 1713 I do not doubt that both Mr and Mrs Chattaway genuinely believe that the incident was the catalyst for the change in their son’s physical and mental wellbeing observed by them following his return from China. 1714 However, neither were prepared to acknowledge the extent of their son’s behavioural issues during his school years. Both focussed almost exclusively on the applicant’s successful completion of Year 12, and, for example, the fact he was never expelled or suspended, to lend support to their evidence that there were no real problems of note with any aspect of his behaviour or personality prior to the incident. That is understandable as they are both loving parents, searching for an answer or reason as to why their son now suffers this terrible mental illness and why he did what he did to them in October 2014. I have considerable sympathy for both Mr and Mrs Chattaway (and the applicant). 1715 However, Mr and Mrs Chattaway’s inability to acknowledge those difficulties, notwithstanding documented evidence to the contrary, undermined their evidence. It demonstrated a lack of objectivity (again, understandable as this was their son) and impacted on their overall reliability and credibility as witnesses. 1716 I have therefore approached their evidence with a degree of caution. Insofar as there is any contention as to aspects of the evidence given by them, I have ultimately concluded that I am unable to accept the evidence given by either Mr or Mrs Chattaway unless it is otherwise supported by documentary evidence or other reliable evidence that I do accept. Analysis – Mrs Chattaway’s evidence - liability 1717 Mrs Chattaway gave very brief evidence of her observations of the party upon her arrival, after the incident. Relevantly, she estimated there were about 30 people in attendance at that time. While it is possible that some partygoers had left in the immediate aftermath of the incident (including, of course, Lloyd, Dunn- Lawless and Ms McCallum), her observations as to the number of partygoers at that time is consistent with what Ms Dansie told the operator during the triple zero call. As such, I consider it likely that this is an accurate estimate. 1718 Mrs Chattaway gave evidence that upon her arrival at the premises, the young guests were spirited and drinking what she described was cheap champagne or beer. I am satisfied that when Mrs Chattaway arrived, her focus was primarily, if not solely, on the health and wellbeing of her son. There is no dispute that after the applicant was discharged from hospital, Mrs Chattaway went to the premises with the applicant for the purposes of finding bottles which may have been used as weapons against the applicant. The effect of Mrs Chattaway’s evidence was that she was looking specifically for champagne and/or long necked beer bottles. 1719 I am satisfied that Mrs Chattaway’s memory of having seen the guests drinking cheap champagne and beer is a reconstruction based on what she came to learn was the applicant’s version of how he had been injured, that is, by being struck by champagne and beer bottles. My finding in that respect is reinforced by -- 321 of 496 -- [2026] SADC 27 316 the evidence Mrs Chattaway subsequently gave when asked how many young people were drinking, to which she responded, ‘they were all drinking but I don’t know what they were drinking’.1764 1720 Mrs Chattaway was adamant that when she attended at the premises with the applicant on 7 December 2010, after the applicant was discharged from hospital, Owen was still cleaning up bottles from the party. I am unable to accept that evidence. This was two days after the party and at a time when one would, in the ordinary course, expect that any empty bottles had already been cleared. Owen, Ms Dansie and Mr Stankiewicz all gave evidence, which I accept, that the ‘clean up’ occurred on the night of the party, with empty bottles being put in a recycling bin for the scouts to collect. Ms Dansie provided an explanation for this, namely that they had two dogs who were with neighbours for the duration of the party but were to be returned home. The clean-up needed to occur before the dogs were returned. I accept the evidence of Owen, Ms Dansie and Mr Stankiewicz that the bottles had all been cleared up from the backyard and were already in recycling bins, when Mrs Chattaway and the applicant attended at the premises on 7 December 2010. 1721 There was a dispute between the evidence given by Mrs Chattaway on the one hand and Ms Dansie and Mr Stankiewicz as to the circumstances in which an ambulance was called after the incident. Although there was some emphasis placed on this evidence, I consider its relevance was only as to credit, as there was no dispute an ambulance was called to the premises by Ms Dansie. 1722 After carefully considering all of the evidence, I am unable to accept the evidence Mrs Chattaway gave in cross-examination wherein she denied that she had initially proposed driving the applicant to hospital but had ultimately agreed with Ms Dansie that an ambulance should be called. 1723 I consider there is simply no reason for Ms Dansie and Mr Stankiewicz to both lie about, or both have a false memory now, of the circumstances in which the ambulance was called. It was submitted this was a narrative made up by the third and fourth respondents who were themselves drunk, hosting an unruly and unsupervised party, and otherwise concerned about alerting the emergency services to the fact of the incident. I reject that submission. There was no evidence whatsoever to support the applicant’s evidence that the hosts were drunk, or the party was unruly. There was reliable, credible evidence to the contrary, including that of Mr Heames and Mr Eckert. I will return to that evidence, and the issue of supervision, later. 1724 I consider there was simply no purpose to be served by the third and fourth respondents lying about the circumstances in which the ambulance was called, given that they did, in fact, call an ambulance, shortly after Mrs Chattaway arrived 1764 T 81.9-10. -- 322 of 496 -- [2026] SADC 27 317 at the premises. In my view, in all of the circumstances, whose decision it ultimately was to make that call was irrelevant. 1725 Further, it makes practical sense for Ms Dansie to seek Mrs Chattaway’s approval prior to calling an ambulance, once she discovered the applicant was still aged 17. It was also prudent for Mrs Chattaway to want to see her son before making that decision. The Chattaways lived a very short distance from the premises. Mrs Chattaway said it was only a five-minute drive away. There was no immediate concern that a short delay would impact on the applicant’s wellbeing. Although he was in pain and bleeding, he was otherwise observed to be conscious and responding to those who were attending to him.1765 Ambulance call-out fees are high. Ms Dansie would have had no idea of knowing whether the Chattaways had ambulance cover. It makes perfect sense for Mrs Chattaway’s approval to be sought, and for there to have been some consideration by her of the merits of this course of action, prior to an ambulance being called. Analysis – Mr and Mrs Chattaway’s evidence - causation 1726 There was evidence tendered at trial which demonstrated that the applicant had struggled for many years, both from a behavioural and academic perspective, in the years prior to the incident. Both Mr and Mrs Chattaway were extremely reluctant to acknowledge the extent of these difficulties. 1727 An example of this is Mrs Chattaway’s evidence about the reason why the applicant was seen by Malcolm Robinson, which she attributed to the fact that her son was being bullied. 1728 I am satisfied that the applicant was bullied by others when he first started at St Peter’s Preparatory School. However, it is clear from Mr Robinson’s notes, and I find, that the reason the school suggested the applicant be seen by Mr Robinson was to address how the applicant was reacting to being bullied, that is, by responding aggressively with violence. Mrs Chattaway was most reluctant to acknowledge this.1766 She gave evidence that she could not recall any concerns being raised about the applicant’s aggressive behaviour while he was in the junior school.1767 1729 Another example was the evidence given by Mr Chattaway to explain the many less than positive comments made by teachers in the applicant’s school reports. He sought to attribute those negative comments to the fact that Mr Robinson’s approach had ‘ruffled the feathers’ of the teachers at the school, which ‘sort of echoed in the teacher’s reports a bit’.1768 There was simply no basis to this assertion, which was, in my view, a misguided attempt to cast doubt on the accuracy of the contents of the school reports. 1765 See discussions and findings below. 1766 T 919.24-38. 1767 T 1060.1. 1768 T 988.25-29. -- 323 of 496 -- [2026] SADC 27 318 1730 The evidence given by Mr Chattaway that the reason the applicant did not study French when in the Senior School at St Peter’s, after having been very good at French as a child, was another similar example. He said the applicant lost the opportunity to study French at St Peter’s as the French was at a different level and ‘when you’ve learned language at a certain level and then you try and step down a level it’s not easy to do’.1769 1731 The only possible inference from this evidence was that the applicant was performing at too high a level in French to continue it at the lower level at St Peter’s. In fact, the applicant lost the opportunity to study French at St Peter’s because he was in a special needs group. When this was put to Mr Chattaway, he agreed. However, the way he initially framed his evidence was indicative of his evidence overall, that is, it sought to overstate the applicant’s achievements before the incident. 1732 Many of the applicant’s school reports were in evidence. Although some of those reports included positive comments, it is readily apparent from an overall review of those reports, particularly from Years 8 to 11 (2006 to 2009), and I find, that the applicant was not achieving anywhere near to his full potential, due to behavioural issues. Those issues included poor organisation skills, an inability to focus and to concentrate, poor time management and a propensity to be disruptive in class. 1733 Notwithstanding clear documented evidence to the contrary, Mr Chattaway maintained that when properly analysed, the reports were ‘80% positive’ and denied there was any complaint of concentration problems by the time the applicant was in Year 10.1770 That evidence is simply at odds with what is documented in the school reports.1771 The positive comments were far outweighed by the negative. The reports paint a clear picture that the applicant was struggling, particularly with concentration issues, but also with behavioural issues, which meant he was not achieving to his full potential. 1734 While it is certainly to the applicant’s credit that he successfully completed Year 12 notwithstanding these challenges, both Mr and Mrs Chattaway (and the applicant) exaggerated this accomplishment. The documented evidence establishes, and I find, that the applicant achieved an ATAR of 77.4, not 82 to 84 as asserted by Mr Chattaway, nor ‘around 83’ as asserted by Mrs Chattaway. He was not a ‘lower A student’ as claimed by Mr Chattaway. He in fact received one A, two Bs and two Cs in his five Year 12 subjects. 1769 T 1027.5-6. 1770 T 1052.18-19. 1771 See Year 10 reports at Exhibit R42 at pp 34-39, wherein several teachers commented on the applicant’s inability to maintain his focus, failure to concentrate and the ease by which he was distracted. -- 324 of 496 -- [2026] SADC 27 319 1735 Although the applicant did achieve bonus marks for undertaking certain subjects, this did not change his ATAR. The bonus marks were only relevant to his overall university entrance score. 1736 The fact that the applicant was able to pass Year 12 and achieve an ATAR of 77.4 is commendable, given the many difficulties he encountered during his school years. However, his final Year 12 results do not otherwise detract from the fact that he did experience those difficulties. 1737 The very fact that the applicant was referred to Ms Petersen in 2005, Dr Lamb in 2006 and Dr Hill in 2010 is indicative of there being concerns about the various learning difficulties the applicant was experiencing. Mr and Mrs Chattaway’s inability to accept the extent of those concerns reflected their overall inability to acknowledge that their son was, in fact, struggling in certain aspects of his life, before the incident. 1738 I am satisfied from the various school records and find, that one of the school’s concerns regarding the applicant’s behaviour related to his propensity for aggression. This was apparent from as early as September 2002, when the school suggested the referral to Mr Robinson. However, thereafter, there were other documented reports of the applicant’s aggressive behaviour. By way of example, in Semester 2 of Year 8 (2006) the Mentor reported, ‘...[h]is repeated, spontaneously aggressive reaction to other boys is a matter of concern’.1772 1739 In a letter from Mr Hately, Head of Senior School, to Mr and Mrs Chattaway after the incident in the August 2007 AFL game against Blackfriars, several examples of the applicant’s aggressive or inappropriate behaviour were listed. These included his suspension from rugby for racially abusing a team-mate, two detentions received for fighting with another student and a detention received for wilfully damaging school property. Mr Hately noted that several staff had expressed their concerns about his ‘overly aggressive and physical behaviour at recess and lunch times’.1773 1740 The applicant acknowledged getting into physical altercations at school. I am satisfied from the contents of the school reports and records that the applicant’s aggressive behaviour was of sufficient concern to the teachers to justify it being referenced and reported upon. It was therefore more than just the rough and tumble that one might otherwise expect from an adolescent boy. 1741 Neither Mr nor Mrs Chattaway claimed to have any recollection of the school raising with them concerns over the applicant’s overly aggressive behaviour.1774 1742 Again, while that lack of recall may, in part, reflect the passage of time and/or the fact that both Mr and Mrs Chattaway have experienced the trauma and burden 1772 Exhibit R42 at p 26. 1773 Ibid at p 96. 1774 T 945.21-948.21; T 1060.30-33. -- 325 of 496 -- [2026] SADC 27 320 of caring for and supporting their son through his debilitating illness, both parents’ refusal to acknowledge the nature and extent of these issues reflected poorly on their overall reliability and credibility. 1743 Both Mr and Mrs Chattaway were adamant in their denials relating to any potential use of illicit drugs by the applicant prior to the incident. However, Mrs Chattaway acknowledged that she was not introduced on a daily basis to what the applicant was doing. Neither Mr nor Mrs Chattaway were aware that the applicant had a girlfriend at any time during his school years, contrary to the applicant’s evidence that he had two such girlfriends. 1744 If the applicant was consuming cannabis between the ages of 16 and 18, as he reportedly told Dr Symon, it is highly unlikely this is something he would have done overtly, in front of his parents. If he was smoking cannabis at that time, it is most likely that this was something he did in private, and/or when socialising but in any event at a time when he was not in his parents’ company. 1745 As such, the fact that neither parent either saw him using drugs or knew he was using drugs is of little consequence. What was important was that both parents were categorical in their denial of any proposition to the effect that the applicant had used illicit drugs at any time. This was notwithstanding the various comments, apparently attributed to the applicant, to this effect, in the RAH records and the references in those notes to there being a strong smell of marijuana in his room. 1746 Mr Chattaway was insistent that this aspect of the applicant’s history to Dr Symon was an example of his psychosis and was not the truth. He explained that cannabis use was simply inconsistent with the applicant’s focus on physical fitness at school and the illegality of that drug in China. As to the latter, neither Mr nor Mrs Chattaway have any personal knowledge of what the applicant was doing in China. As to the former, the applicant’s rowing commitments ceased after the Head of the River in April 2012. Further, the applicant ceased many of his sporting commitments during Years 10 and 11 because of his knee injury. 1747 Again, the fact that neither Mr nor Mrs Chattaway were prepared to accept, even as a possibility, that the applicant had used illicit drugs, was an example of their inability to contemplate that there may be another possible explanation for the onset of their son’s schizophrenia, other than the incident. 1748 Both Mr and Mrs Chattaway gave evidence of the effect of the incident on the applicant in the immediate period after the incident and before he left for China. I am satisfied, consistent with the evidence given by them, that neither Mr nor Mrs Chattaway had any significant concerns about the applicant’s ability to cope in China, notwithstanding he was being sent there alone, to study, isolated from family and close friends, within a few months of the incident. In this respect, Mrs Chattaway gave evidence that she had no concerns over and above that of any -- 326 of 496 -- [2026] SADC 27 321 other parent sending their child away for a gap year.1775 Mr Chattaway said he had no concerns.1776 1749 I am further satisfied that planning for the applicant to go to China was underway as early as 5 January 2011, when the applicant received vaccinations for the trip. This was exactly one month after the incident. Two days later, the medical clearance was sought from Dr Lamb. I am satisfied that Dr Lamb was not even informed about the incident. This supports a finding that at that time, the incident was not considered by the applicant (or his family) as being a relevant consideration in terms of the applicant’s medical fitness to undertake that trip. 1750 I do not doubt that immediately after the incident the applicant was reluctant to socialise, when his face was still bruised, as described by Mr and Mrs Chattaway. He missed the trip with the Exploration Society to New Zealand and he must have spent some time physically recovering from his injuries, such that he was unable to go to the beach or parties around that Christmas period. 1751 However, I reject Mr Chattaway’s evidence that the applicant did not see his friends at all, and rarely left the house at all, before leaving for China. This evidence is simply inconsistent with the evidence Mr and Mrs Chattaway gave that they felt comfortable that the applicant would cope in China, both from a social and academic perspective. 1752 If the applicant was, as Mr Chattaway claimed, very reluctant to leave the house or fearful of encountering the assailants in Adelaide, or unable to start his university studies because of the incident,1777 it is incongruent that the applicant would be sent alone, to China, to study, where he had no support from close friends or family. If the intention in sending him to China was, in effect, to force the applicant to rebound from the trauma of the incident, one may presume there were other less extreme options, such as sending him interstate or to the UK to holiday and spend time away both from Adelaide and study, with the support of extended family. 1753 Insofar as Mr and Mrs Chattaway’s evidence sought to demonstrate significant changes in the applicant’s behaviour before he left for China, I reject that evidence, it being inconsistent with a decision being made by early January 2011 to send him to China to study. 1754 Mrs Chattaway recalled that the trip to China was proposed by her husband. Mr Chattaway denied it was his idea and said it was proposed by the applicant. By his evidence, Mr Chattaway implied that they had discussed the proposed trip with various medical staff, who had endorsed the decision.1778 However, there was no evidence in any of the medical records from the RAH, or the Arkaba Medical 1775 T 973.34-35. 1776 T 997.11-12. 1777 Noting that the applicant did not give evidence to this same effect. 1778 T 1029.22-29. -- 327 of 496 -- [2026] SADC 27 322 Centre, to suggest that their expert views were sought as to the appropriateness of the applicant’s proposed trip to China. I reject Mr Chattaway’s evidence insofar as it was to that effect. 1755 I also reject Mr Chattaway’s evidence, insofar as he described being unable to work, at all, after the incident, because of his role as a full-time carer for his son. It is quite clear from the evidence and find, that a project in which Mr Chattaway was involved in, in fact fell through in June 2010, before the incident, notwithstanding he initially attempted to link the cessation of his involvement in that project to the incident. I reject Mr Chattaway’s evidence insofar as it was intended to convey any impression that he was a full-time carer for the applicant during the period after the incident and the applicant’s departure for China. However, I do not doubt and find that during the period from around mid-2012 until October 2014, Mr and Mrs Chattaway were heavily involved in their son’s care and that thereafter, they have devoted significant time to visiting their son and attending to matters relating to his care. 1756 There were also inconsistencies in the evidence given by Mr and Mrs Chattaway about their understanding of the applicant’s ability to cope with his studies in China. Mrs Chattaway gave evidence that it was her impression that the applicant found the course more difficult than he expected. Mr Chattaway said the applicant described the course as ‘ridiculously easy’. However, both agreed they had difficulty contacting the applicant while he was in China and it was very clear that neither Mr nor Mrs Chattaway knew precisely what the applicant was doing while he was there. As such, the evidence they both gave about the applicant’s time in China was of limited assistance (and mostly hearsay). 1757 I accept Mr and Mrs Chattaway’s evidence that they both noticed considerable changes in the applicant’s behaviour after he returned from China. However, I consider it likely and find that neither Mr nor Mrs Chattaway were able to precisely recall when some of those observations were made, or specific treatment sought, consistent with the passage of time and the considerable trauma they have experienced, since that time. 1758 By way of example, it was Mrs Chattaway’s recollection that by the end of February 2012, the applicant’s behaviour was such that they had taken him to see a GP for a referral to a psychiatrist. Mr Chattaway thought that steps to seek psychiatric review had started only a week or two after the applicant’s return from China on 26 December 2011. In fact, the medical records demonstrate, and I find, that it was not until 16 April 2012 that the applicant consulted a GP for the purposes of seeking psychiatric review. Relevantly, the notes made by Dr Angas who saw the applicant at the Arkaba Medical Centre on 17 February 2012, contain no reference to any mental health concerns. Dechlan Heames and Nicholas Eckert 1759 In addition to the applicant, the only witnesses called by the applicant to give evidence as to the party circumstances prior to the incident, were Mr Eckert and -- 328 of 496 -- [2026] SADC 27 323 Mr Heames. Both Mr Eckert and Mr Heames had attended St Peter’s with the applicant. They were not part of the ‘Scotch’ group and insofar as they had any allegiance with anyone at the party, I am satisfied such allegiance was with the applicant. 1760 Relevantly, neither witness saw the incident, nor anything which may have precipitated the incident. 1761 Both were patently honest witnesses. It was clear from the evidence given by them both, that they had difficulty in distinguishing a particular memory of this party from other similar parties they had attended in their final year of school. This is important, as it supports a finding that there was nothing out of the ordinary or memorable about this party, other than the incident itself. 1762 Notwithstanding the limitations on their memories by the passage of time, I am satisfied as to the truthfulness of the evidence given by both Mr Heames and Mr Eckert. Both were very careful to acknowledge the limitations of their memory and to only give evidence on matters they did, in fact, remember. As such, I am satisfied the evidence they did give, was generally reliable. 1763 Importantly, Mr Heames gave evidence that he had not observed nor become aware of any conflict, either within or outside of his group, prior to the applicant being injured. He said he was shocked to learn of the incident as there was no indication otherwise that anything was wrong or untoward. I accept that evidence. 1764 He did, however, have some recollection of having overheard conversations that there were people who had come to the party uninvited. He could not recall who he heard saying this and gave no other evidence about any such conversations. 1765 This was important evidence, as the applicant was adamant that he and Mr Heames had been specifically selected by Owen, due to their size, to go with Owen when he spoke to Lloyd and Dunn-Lawless about their attendance at the party. Further, the applicant maintained that during that discussion with Lloyd and Dunn-Lawless, they had offered to fight both him and Mr Heames, had threatened them and said something about them being ‘pussies’. 1766 Given the events which ultimately transpired, it is most unlikely that Mr Heames would now have no recollection of being privy to such threats and comments made by Lloyd and/or Dunn-Lawless, if they had in fact been made. Those earlier threats would have served to give some context to the incident which ultimately occurred. 1767 Mr Eckert also had no recollection of observing any conflict at any time, nor of anyone behaving in an overly intoxicated manner. He said people were getting along fine. Mr Eckert had attended St Peters with both the applicant and Mr Heames. If the threats as described by the applicant had been made, one may expect them to have been a topic of conversation thereafter, at least within that -- 329 of 496 -- [2026] SADC 27 324 circle of Saints boys and, again, something that may have been remembered insofar as it provided some explanation for the subsequent incident. 1768 Neither Mr Heames nor Mr Eckert gave any evidence to corroborate the applicant’s evidence that the partygoers (and the hosts) were visibly affected by alcohol. Specifically, neither gave any evidence of having seen girls go to the bathroom to vomit or of observing anyone vomiting in the backyard. Indeed, Mr Heames gave evidence that the party was ‘a pretty tame affair’ compared to other such parties he had attended. 1769 Importantly, Mr Heames gave evidence that there was nothing to indicate that anything was wrong before the incident and similarly, Mr Eckert gave evidence that there was nothing unusual or dissimilar about this party, compared to others he had attended, but for the incident. 1770 Both Mr Heames and Mr Eckert only became aware of the incident when they saw the applicant, shortly after it had occurred. Mr Heames said he saw the applicant in the grassed area, adjacent to the pool, ‘walking’ or ‘staggering’ towards the undercover pergola area, with blood coming from his nose. The applicant was then assisted to a chair. This evidence is at odds with the applicant’s evidence that he had crawled through the garage, bleeding and drifting in and out of consciousness, as no one came to his aid, until Mr Heames had helped him onto a chair. 1771 I accept the evidence that both Mr Heames and Mr Eckert gave, in general, as to their overall memory of the party size, its atmosphere and the fact that they genuinely now have no recollection of anything untoward about the party prior to the incident. I also accept the evidence they both gave as to their first observations of the applicant immediately after the incident. Had either of them seen the applicant crawling on the ground towards the garage, I am satisfied this is something that at least one of them would have remembered. Tim and Keryn Allan 1772 Both Mr and Mrs Allan presented as very honest, genuine witnesses. I have no reason to believe they were doing other than their very best to recall the events of the party. Mr Allan, in particular, made several concessions concerning his observations of partygoers (generally) and of the applicant (after the incident) which demonstrated his honesty. 1773 Both Mr and Mrs Allan gave only brief evidence, limited to what they could actually recall of the party. As such, I am also satisfied that in most respects, the evidence they gave was reliable. 1774 Mr Allan was not cross-examined. Mrs Allan was cross-examined only on a discrete topic, namely whether she was aware, having regard to her experience as a teacher, of the percentage of Year 12 students who would not have yet turned 18 by the end of Year 12. She was unable to answer that question. -- 330 of 496 -- [2026] SADC 27 325 1775 Mr Allan had a clear recollection of arriving at a time when it was still light and there were only about five to 10 young people in attendance, outside, under the pool shelter. I accept that evidence. I also accept his evidence that the numbers had grown to around 30 or 35 people (possibly 40) when he was assisting Mr Stankiewicz at the barbecue. 1776 Mr Allan thought he and his wife had arrived at around 4:30pm to 5:00pm. Again, I accept that evidence, it being relatively consistent with the party’s scheduled starting time of 4:00pm. 1777 I accept Mr Allan’s evidence that during the evening, he spent time outside with Mr Stankiewicz while he was cooking the barbecue. I also accept his evidence, consistent with that of Mr Stankiewicz, that they had stopped cooking at the barbecue by around dark or sunset, and that thereafter, he spent most of his time inside, in the kitchen/living area, apart from occasions when he and Mr Stankiewicz went outside to pick up empty bottles and put them in a recycling box. He was not ‘supervising’ the guests’ behaviour as such and never suggested that he was. Rather, he was there to simply provide company for the hosts and help, of whatever type was needed. 1778 I accept Mr Allan’s evidence that he may have drunk one or two glasses of wine throughout the evening but no more as he was driving. He gave evidence that the other adults consumed alcohol in similar quantities to him. That evidence was not challenged. It was never suggested to Mr Allan that either he or any of the other adults were drunk, as claimed by the applicant. 1779 He acknowledged that most of the young people appeared slightly inebriated in the sense that their behaviour was overly boisterous. However, he did not see or hear anyone vomiting in the two toilets - one immediately adjacent to the kitchen and one just down the hallway from the living area, nor did he see vomiting outside. He neither saw nor heard anything about any behaviour of concern. I accept that evidence, it being generally consistent with the evidence given by all other witnesses, except the applicant. 1780 I also accept Mr Allan’s evidence that he had basic casualty care training and administered first aid to the applicant immediately after the incident. He described the applicant sitting on a chair at G6, that is, near the pergola, not under the carport. I accept his evidence that he was concerned for the applicant to not lean back and choke on his blood and that the applicant was able to respond physically to what he told him. I also accept Mr Allan’s evidence that he remained with the applicant, caring for him, until Mrs Chattaway’s arrival at the premises, during which period the applicant was groaning and in obvious pain. 1781 Mrs Allan spent most of the evening inside the house in the kitchen/lounge area. Her observations were relatively limited, consistent with this. However, I accept her evidence that throughout the evening, from her vantage point inside, she did not notice any guest vomiting, nor any aggressive or abusive behaviour by -- 331 of 496 -- [2026] SADC 27 326 anyone, such evidence being consistent with every other witness, save for the applicant. 1782 I further accept Mrs Allan’s evidence that she may have had one or two glasses of white wine during the party, but not more than that, as she was only a moderate drinker. This evidence was not challenged. It was never suggested to Mrs Allan that she or any of the other adults in attendance were drunk. Eleanor Stankiewicz (Eleanor) and Marcel Blanch-De Wilt (Marcel) 1783 Both Eleanor and Marcel were only at the party for a short time and had left well prior to the incident. 1784 They both had a very limited recollection of the details of the party, as they had both attended other similar parties (or gatherings) at the premises at or around that time. That is, of itself, of some assistance to the Court insofar as it demonstrates that there was nothing different about the party, at least when they were there, which made it particularly memorable from other such similar occasions. 1785 There was nothing particularly controversial about the evidence of either witness, much of which related to the third and fourth respondent’s ‘usual practice’ when holding similar parties. 1786 Eleanor gave evidence, consistent with both the documentary evidence and other oral evidence, as to her recollection of the lighting in the backyard of the premises. She described there being fixed lights under both the pergola and the pool shelter and lights in the pool itself. The lights would be on inside the house in the kitchen, living and dining area (being consistent with the fact that Ms Dansie and Mrs Allan needing the lights on in the kitchen to organise food, and to enable guests to locate the two bathrooms inside). The lights inside the house also shed light into the backyard. Although it was dark in the back of the yard, it was not so dark that you could not see people. This evidence was not challenged and was consistent with the evidence of both Dunn-Lawless and Ms McCallum. I accept this evidence. 1787 Eleanor also gave evidence as to the line of sight from the kitchen window, into the backyard. She said that you could see almost the entire backyard from the kitchen window, except for a grassed area behind the back wall of the master bedroom, near the orange tree (located on the southern (side) fence of the property). That evidence is generally consistent with what can be discerned from consideration of the photographs of the premises (Exhibit P2) and the grid. I accept that evidence. 1788 An aspect of Eleanor’s evidence which was important, was her evidence that her father did not drink much at any of the parties held at the house and that she thought this was because he wanted to be able to drive guests home if necessary. She said her parents were never drunk at any gathering she had at the house. This -- 332 of 496 -- [2026] SADC 27 327 evidence is entirely plausible. It is also consistent with the evidence given by Ms Dansie, Mr Stankiewicz and the unchallenged evidence of Mr Allan. I accept this evidence. Ms Dansie 1789 Counsel for the applicant was scathing in his submissions as to the evidence given by Ms Dansie (and Mr Stankiewicz), whom he described as ‘pompous, arrogant and self-serving’.1779 He described Ms Dansie as giving her evidence in a ‘highly defensive manner’.1780 I disagree with that as a general proposition. 1790 The cross-examination of Ms Dansie was conducted in what can best be described as a condescending and aggressive manner. It commenced with a series of questions about the movements of Eleanor, Marcel and Alexandra Donovan, during the party. Having regard to all of the evidence and the facts in issue, these were clearly peripheral matters. 1791 I accept that Ms Dansie was defensive when it was suggested to her by Senior Counsel for the applicant that she really had no memory of the party, because of her inability to answer specific questions about ancillary topics. Those topics included such things as precisely what types of containers were put out for drinks to be kept in, where those containers were positioned and what she did, specifically, in terms of setting up for and preparing the party. 1792 As the party occurred more than 12 years prior to Ms Dansie giving her evidence and was only one of several parties held at or about that time at the premises, it is completely unrealistic for Ms Dansie to have retained an accurate memory of these types of peripheral details. 1793 What was important about this party was that it was Owen’s 18th birthday and the applicant got injured. Where the drinks were kept and how, or how many tables were setup and where, is not something one would ordinarily expect Ms Dansie to remember. Similarly, one would not expect her to remember the precise time her daughter, Eleanor, and her then boyfriend, Marcel, left the party. 1794 Put another way, if someone who regularly hosted Christmas lunch for their family was asked to recall what eskies or containers were put out for drinks during Christmas lunch 12 years prior, it is highly unlikely that person would be able to accurately answer that question. It is likely that the answer they gave would be based on what usually happened at Christmas lunch, not what, in fact, did happen at that particular lunch. 1795 Insofar as Ms Dansie was defensive in response to certain questions asked of her in cross-examination, her response was, in my view, an ordinary and expected response in the circumstances, having regard to the nature of the questions being 1779 FDN 327 at [118] and [122]. 1780 Ibid at [122]. -- 333 of 496 -- [2026] SADC 27 328 asked and the tone in which they were asked, and not something which caused me to otherwise doubt her credibility and/or reliability. 1796 There were specific criticisms levelled against Ms Dansie by the applicant, which, it was submitted, should cause the Court to ‘exercise care’ before acting on her evidence. 1797 The first such criticism related to the fact that Ms Dansie did have knowledge of the fact that at least one young person who had attended the party, had done so uninvited. This was said to be consistent with her husband’s evidence, but at odds with Owen’s evidence. Further, it was submitted that notwithstanding Ms Dansie had been clear in her evidence that she only wanted people known to Owen and Kelly to attend, she allowed this uninvited person (Lloyd) to stay, simply on Kelly’s verbal reassurance. 1798 I have had difficulty following this submission, which, in part, misstates the evidence. Owen was clear in his evidence that he went inside at some stage and mentioned to his mother about the conversation (with Lloyd), and the fact he had buried the hatchet with someone whom he had not previously gotten along with. What Owen did not agree with was that he had specifically used Lloyd’s name in the conversation with his mother and/or that he had told his mother both that he had not invited Lloyd and that he did not want him there. However, Owen’s response to this question included the fact that a person with whom he had not got along was there, that they had made amends and that Kelly had invited this person. This is largely consistent with Ms Dansie’s recollection of that conversation. 1799 Ms Dansie recalled this discussion as relating to a couple of blokes, rather than simply one. She may be mistaken in that recollection, having regard to the events which subsequently unfolded at the party. However, it is clear that it was her understanding, from this conversation, that the people in question had been invited by Kelly and although Owen had not previously gotten along with them, after his chat with them, he was happy for them to stay. 1800 Insofar as there is some suggestion that their evidence is inherently inconsistent on this topic, I reject that submission. It was clear to me that they were both describing the same conversation. It is unrealistic to expect either witness to now recall the precise words that were used during that conversation – rather, what they both recalled was the gist or meaning of what was said. 1801 Further, there is nothing inconsistent with this aspect of Ms Dansie’s evidence and her evidence that she required the invitation list to the party to be closed and that only persons known to either Owen or Kelly attend. Ms Dansie was reassured that Kelly (and Owen) knew this ‘uninvited’ person or persons and it is implicit from what Owen said to her about this, that he was happy for them to stay. -- 334 of 496 -- [2026] SADC 27 329 1802 I accept the evidence given by Ms Dansie as to the fact she did have such a discussion with Owen and that it occurred inside, not outside. This is consistent with Owen’s evidence and that of Mr Stankiewicz. It also fits with Ms Dansie’s evidence, which in my view unfolded naturally, that sometime after the incident but before speaking to the operator on the triple zero call, Owen told Ms Dansie that the other guests involved in the incident were those who were the subject of his earlier conversation with her. 1803 The second aspect of Ms Dansie’s evidence highlighted by counsel for the applicant was Ms Dansie’s evidence about the circumstances in which the ambulance was called. I refer to my previous observations and findings at paragraphs 1723-1724 herein. I reject the proposition that Ms Dansie was concerned not to attract the attention of the authorities to the fact of the incident. 1804 It was submitted that Ms Dansie’s demeanour as demonstrated in the recorded triple zero call somehow supported this proposition, whereas Mrs Chattaway could be heard, on that call, as ‘apparently calm’. 1805 I have carefully listened to that call.1781 Throughout that call, the operator, in fact, praised Ms Dansie for doing a fantastic job, for staying so calm and for keeping everyone under control. I disagree with the proposition that Ms Dansie’s demeanour and/or the language she used during that call was consistent with her being drunk. To the contrary, Ms Dansie was clear headed, calm and organised. She was carefully following the instructions of the operator and conveying them to others. At one stage she intervened to correct Mrs Chattaway, who rather than sit the applicant forward, as had been instructed, and verbalised by Ms Dansie, had told the applicant to put his head back. Ms Dansie was completely coherent, focussed and in control of the situation. 1806 I accept Ms Dansie’s explanation as to why she told those in the vicinity of the applicant who were not needed to ‘piss off’. That is, that this was language she had been known to use when sober. Further, given the situation, it was likely that her using those words and in the forthright manner she said them, was likely to be much more effective in achieving the desired response, than simply saying, in a normal voice, ‘please move away’. 1807 I accept Ms Dansie’s evidence that although she may have had a glass of champagne when toasting Owen’s birthday and one or two glasses of white wine, during the party, she was not drunk. 1808 The applicant also identified other aspects of Ms Dansie’s evidence which it was submitted should cause the Court concern. These were said to relate to her evidence ‘aligning’ with that of her husband as to the fact that they did not check the guests attending, or the alcohol being brought into the premises and that she had no knowledge of the presence of underage drinkers at the party. 1781 Exhibit P15, the transcript of which is MFIP34. -- 335 of 496 -- [2026] SADC 27 330 1809 The fact that Ms Dansie and Mr Stankiewicz did not specifically man the gate to ensure that only invited guests entered or check what each guest brought with them, were factors relied upon by the applicant to support an argument that the third and fourth respondents had breached a duty of care they owed to the applicant. Their frank concession that they did not conduct any such checks is consistent with their evidence being truthful and accurate, rather than the contrary. 1810 As to the age of the guests, during her evidence-in-chief, Ms Dansie said she had ‘made an assumption’ that all of the guests would have been over 18, as Owen’s birthday was at the end of the school year.1782 In cross-examination, she gave evidence that she ‘believed’ all of the young guests at the party were adults and that she ‘understood’ that all of the people who were going to be invited were over 18.1783 Mr Stankiewicz gave similar evidence, namely that he was surprised when he heard the applicant was only 17 as ‘we thought everyone was 18’.1784 He later agreed with a proposition that he believed all of the guests were over 18, notwithstanding this was not stipulated by them to Owen in terms of the guest list, but simply because of it being the end of the school year.1785 1811 Ms Dansie and Mr Stankiewicz are the parents of two children, both of whom had finished school and likely attended multiple birthday parties for their school friends over the years. It is therefore difficult to accept that they could not have known or at least assumed that there was a very real prospect, that some students in Owen’s year level would not have turned 18 until after the party, it being held in early December. Both Ms Dansie and Mr Stankiewicz were clear that they had not told Owen that only those who were 18 or over were to be invited. In the absence of such a condition being imposed on the guest list, any assumption that all guests were over 18, was unrealistic. If they held such an assumption or belief, it was clearly in error. 1812 Rather, I consider it likely that they believed most of the guests had turned 18. As the party was being held after the annual Schoolies weekend, I also consider it likely they assumed that even if some guests were under 18, those guests would have previously attended events where alcohol was consumed and readily available for consumption. 1813 On balance I am unable to accept the evidence of Ms Dansie and Mr Stankiewicz that they either assumed or believed that all of the guests had already turned 18. However, even if they did hold such an assumption, it did not ‘assist’ their case, in the absence of them demonstrating they had taken steps to ensure that assumption or belief was correct. 1814 I can accept some of the evidence given by a witness but reject other evidence given by them. I have, however, carefully considered the other evidence given by 1782 T 586.26-29. 1783 T 620.7-11. 1784 T 522.36-37. 1785 T 543.30-544.7. -- 336 of 496 -- [2026] SADC 27 331 Ms Dansie (and Mr Stankiewicz), given this finding, when determining whether their evidence on other topics is both reliable and credible. 1815 There are some other aspects of Ms Dansie’s evidence that I am unable to accept, insofar as her recollection differs from that of several of the other witnesses. The first is Ms Dansie’s evidence that there were ice filled ‘clam shell’ shaped paddle pools at the party for the purposes of keeping only soft drinks and water cold. Ms Dansie conceded she was unsure if clam shells or eskies were used. I consider her answer in that respect reflects her inability to differentiate what actually occurred at this party from what had occurred at other similar parties held at the premises. None of the other witnesses referred to clam shell shaped containers. 1816 Ms Dansie gave evidence that she did not expect the ice containers to be used by the guests to store the alcohol they brought with them. However, she readily conceded that she expected the young guests to bring alcohol to the party. My overall impression of Ms Dansie was that she was a very literal witness. I consider it likely that her evidence on this topic simply reflected the fact that she did not now know where she had expected the guests to store the drinks they had brought with them to the party, and/or that she had no recollection of other empty containers with ice being supplied by them, for such purposes. 1817 The second related to Ms Dansie’s evidence that the lighting at the party included a floodlight located on the corner of the shed at G3 on the grid. 1818 During examination-in-chief, when being asked questions about the photographs depicting the premises, Mr Stankiewicz was asked, ‘What was the lighting out the back?’. In response, he described the lights under the pool shelter, the lights in the pool, and two fixed floodlights attached to the pergola (one on the corner of the house which faced out, northwest, across the backyard). He then added, ‘Occasionally a light at the back garage’.1786 1819 Mr Stankiewicz was not asked during examination-in-chief, precisely what lights were on, in the backyard, during the party. However, during cross- examination, when asked whether there was any direct lighting on the areas in G3/4 and H3/4 on the grid, he said, ‘only the spill from the flood, it is not a spotlight, it just splashes white’.1787 I am satisfied from the way this evidence unfolded, that when Mr Stankiewicz referred to the ‘flood’, he meant the floodlight located on the corner of the house (at about G5) not any light affixed to the back garage. 1820 None of the other witnesses who gave evidence about the lighting at the party recalled a light on the shed/back garage. One would expect them to remember such a light, as they would have been looking into it, if facing away from the house and towards the back of the property. As such, I consider it likely that although there 1786 T 512.24-31. 1787 T 527.3-4. -- 337 of 496 -- [2026] SADC 27 332 was, at some stage, a light situated on the shed (or garage) located at about G3 on the grid, that light was not on during the party. 1821 Again, I consider it likely that Ms Dansie’s response to this question was reflected her recollection of that light being on at various parties held at the premises and her inability to differentiate in her memory the precise lighting in fact used during the party. Although the lighting was something relevant to the issues in dispute, it is not something one would ordinarily recall, with precision, from an event so long ago, it not being something which is otherwise memorable. 1822 Much of the evidence given by Ms Dansie related to topics which were either not seriously in dispute or were consistent with the evidence of every other witness on that topic (except the applicant) or were not otherwise important in my overall findings as to liability (see below). 1823 However, there were important aspects of Ms Dansie’s evidence that I do accept, as such evidence was consistent with what is contained in other objective and/or reliable evidence. 1824 Ms Dansie gave evidence that she was told by someone at the party, who she did not otherwise know, that Chattaway (the applicant) had been ‘punched’ and that she did not hear any mention of a weapon or weapons being used. Mr Allan gave evidence that he first heard about the incident when a young lady came inside and said that someone had been ‘hit’. Mr Stankiewicz said a couple of girls came inside and said that someone had ‘hit Chattaway’. All of this evidence is hearsay and really only relevant to credit. 1825 What is important, is that Ms Dansie told the triple zero operator that the applicant had been ‘punched’ in the face and that no weapons were involved or mentioned. This was only minutes after the incident had occurred. While Ms Dansie was adamant she was told someone had ‘punched’, rather than ‘hit’, the applicant, and that she had not merely assumed this from seeing his face, in my view, that does not really matter. What matters is that Ms Dansie told the triple zero operator that she had not heard any mention of a weapon being used. In other words, she was certainly not told by anyone at any time prior to speaking with the triple zero operator that a bottle or bottles had been used. I accept her evidence to that same effect, it being consistent with this. 1826 I accept Ms Dansie’s evidence that the applicant was in his bathers at the time of the incident, being consistent with what can be heard during the tripe zero call in terms of the concern to keep the applicant warm. 1827 Ms Dansie gave evidence that when she first observed the applicant after the incident, he was on a folding chair near the french doors under a light and that he was conscious and reacting. She thought he was also able to speak. This is consistent with the evidence of Mr Allan, who attended to the applicant at that time. The latter is also consistent with what Ms Dansie told the triple zero operator, -- 338 of 496 -- [2026] SADC 27 333 namely that the applicant was conscious, speaking and moaning. I accept this evidence. 1828 I accept Ms Dansie’s evidence that she did not observe anyone at the party who was drunk or aggressive. This is consistent with what she told the triple zero operator namely that the party had been quite calm (except for the incident) and consistent with the observations of all of the other witnesses (save and except the applicant). Although I am satisfied that the applicant was drunk (see findings and discussion below), Ms Dansie said she had no recollection of having seen the applicant at the party before the incident, being otherwise consistent with her other evidence. 1829 I accept Ms Dansie’s evidence that she spent much of the time at the party inside, and that she did not notice anyone vomiting in the toilets, it being consistent with all of the other evidence (save for that of the applicant). 1830 Ms Dansie gave evidence-in-chief that she was told by someone, who she could not now recall, that the incident had occurred behind the lemon tree and that the applicant had tried to punch somebody who had punched him back. In cross- examination, she said she had been told the applicant had taken a swing at someone, that he had been punched back, with that punch being more successful in connecting. It was suggested that Ms Dansie had tailored this evidence to fit with Dunn-Lawless’ version of events. 1831 Ms Dansie denied this. She explained that she specifically remembered this as it was an unusual situation and to her mind, if it had been ‘a punch and a self- defence’, that would mean the incident had ended. 1832 Strictly speaking, Ms Dansie’s evidence of what she heard of the mechanics of the incident was consistent with Ms McCallum’s evidence, rather than that of Dunn-Lawless, who described being successfully hit by the applicant before he had then punched him. Ms McCallum gave evidence upon a subpoena issued by the solicitors representing the third and fourth respondents. Ms McCallum had previously provided a statement to Dunn-Lawless’ solicitors. She gave her evidence before Ms Dansie. 1833 I accept Ms Dansie’s evidence that she did not instruct her solicitors to issue that subpoena, nor was she was aware of the subpoena being issued. The instructions may well have come from someone else, that is, either an insurer acting on her and her husband’s behalf, or Mr Stankiewicz, and Ms Dansie not otherwise being aware of this having occurred. 1834 Whatever Ms Dansie recalls hearing someone say to her, is hearsay. It was never suggested to Ms Dansie that she had given this evidence to fit with what Ms McCallum had told the Court or that she had read a statement from Ms McCallum containing this version of events. -- 339 of 496 -- [2026] SADC 27 334 1835 It is certainly possible that Ms Dansie is now mistaken in her recollection of being told this, given what she has subsequently heard from others as to what they say occurred. However, I reject any suggestion that Ms Dansie was lying when she gave this evidence or that she had deliberately tailored her evidence, to fit with that of the second respondent. Mr Tony Stankiewicz 1836 I have previously referred to the evidence given by both Ms Dansie and Mr Stankiewicz as to their assumption or belief that all of the guests were over 18. Although I do not accept that evidence, it was not otherwise self-serving, in circumstances where it was never Mr Stankiewicz’s evidence that they had insisted that only guests over 18 attend and/or that they had then taken steps to ensure that each guest was checked, in terms of their ‘ID’ to ensure they were over 18. This evidence did not, of itself, assist any aspect of the third and fourth respondent’s case. 1837 My overall impression of Mr Stankiewicz was that he was a very measured witness, and neither pompous nor arrogant as submitted by the applicant. 1838 Much of his evidence was given in a very straightforward manner, without over-stating the role he played during preparations for the party or during the party. He readily acknowledged that he was not singling out any of the guests in terms of making observations as to their level of sobriety, nor had he conducted any checks on guests as they entered to see if they had been invited, how much alcohol they had with them or if they were intoxicated. 1839 The applicant’s submissions misstate Mr Stankiewicz’s evidence as to his requirements of the guest list. Mr Stankiewicz did not give evidence that it was a requirement that the guests be ‘of a good reputation that I would find acceptable ...’1788 In fact, the evidence given by Mr Stankiewicz was in the following terms:1789 Q. And it wasn't simply that the guest list would be limited to persons that he knew, it was also your requirement that he limit the guest list to people that you and he approved of. A. Yes, he would have to approve of it and if he approved and they had come from his schools, who both had a good reputation that I would find them acceptable because I did not personally know them and he is an adult at 18, so I was treating him as an adult and responsible. 1840 This evidence is entirely plausible and I accept it. Mr Stankiewicz did not know many of Owen’s (or Kelly’s) friends. It was clear from his evidence that he trusted them, as young adults, to be discerning in who they invited to the party. Like any parent hosting an 18th birthday party at the family home, Mr Stankiewicz 1788 FDN 327 at [120]. 1789 T 537.1-9. -- 340 of 496 -- [2026] SADC 27 335 was concerned to keep the numbers to manageable limits. He gave evidence that he recalled Owen telling him that he would limit the numbers to 30 or 40 attendees, albeit more than that would be invited, as not everyone was expected to come. Although various estimates as to ‘maximum’ numbers differed, having regard to all the evidence it is likely that the numbers at the party, from time to time, ultimately reflected the upper range of that estimate. 1841 Mr Stankiewicz’s evidence was also criticised on the basis that he recalled the party had ended upon the applicant being injured. However, the evidence Mr Stankiewicz in fact gave was that they decided to close the party down after the applicant had left in the ambulance and other guests had drifted off. He said, ‘the whole party atmosphere was wiped by that point’.1790 I accept that evidence, it being a general statement, which was not otherwise inconsistent with the other evidence on this topic. 1842 I accept the evidence given by Mr Stankiewicz as to the effect of the lighting in the darker areas of the backyard during the party. That is, that if you were at the back of the property in the far west or southwest, you would be in the shadow of the lighting and although you would not be able to read a fine print book there, you would be able to see that there were people in that area. In other words, it was not pitch black, but it was dark. This is consistent with the evidence given by Eleanor and Dunn-Lawless and consistent with the size of the backyard having regard to the lighting in use (see findings below). It is also very similar to the evidence given by Mr Heames. 1843 Mr Stankiewicz gave unchallenged evidence that before the party started, he positioned a small table on the lawn near the pool fence at about G5/6 on the grid. I accept his evidence that this was a square fold up table with director’s chairs around it, about the size of a card table. This was consistent with the evidence given by Ms Dansie. There was ultimately no dispute that there was a table positioned in or about that location and that Lloyd and Dunn-Lawless were sitting at that table shortly prior to the incident. 1844 That evidence differed from that given by Dunn-Lawless – who was quite certain the table was rectangular. I consider Dunn-Lawless is mistaken in that respect. Mr Stankiewicz gave evidence that there were two wooden benches that could seat up to three people that were kept under the pergola. Ms Dansie gave similar evidence. I accept that unchallenged evidence, there being nothing controversial about it. Dunn-Lawless recalled sitting on such a bench at that table. I consider it likely that Dunn-Lawless is mistaken in his memory of the table itself being rectangular because of the fact that those benches were being used as seats around that table, giving the feeling or impression that the sides of the table were not the same length. 1790 T 524.2. -- 341 of 496 -- [2026] SADC 27 336 1845 I accept the evidence of Mr Stankiewicz, it being consistent with the evidence of every other witness, that he had not observed any signs of excessive consumption of alcohol and there was nothing about the behaviour of the guests, that he had noticed, which was untoward. I also accept Mr Stankiewicz’s evidence that he drank very little alcohol at the party. He was not challenged on that evidence, nor was it ever suggested to him that the adults at the party had been drunk. There is simply no reliable evidence to the contrary.1791 1846 Mr Stankiewicz gave quite vivid evidence of his recollection of being at the sink, washing dishes, when a couple of girls came in and said someone had ‘hit’ the applicant. I accept that evidence. He was not questioned as to whether he heard any mention of a weapon (or specifically bottles) being used. 1847 My overall assessment of Mr Stankiewicz was that his evidence was, in almost all relevant aspects, both honest and reliable. Owen Stankiewicz 1848 As previously stated, there were a number of inconsistencies in the evidence given by Owen compared with what he had told police in an earlier statement provided on 11 January 2011. 1849 I accept the evidence of Mr Pipianis as to the circumstances in which that statement was obtained and in particular, his evidence as to the usual practice that he adopted when taking such statements. That is, that the statement was to be written using the witness’ words and in circumstances where the witness was informed of the importance of telling the whole truth. He would have informed Owen of the ability to correct errors or to add or delete information and the fact that he may be required to come to court to give evidence. 1850 I am satisfied that they are the circumstances in which Owen’s police statement was made. 1851 Owen explained that when he gave the police statement, he felt guilty because the incident had happened at his party. He explained that he had had over a hundred conversations with others about what had happened at the party and what he told police was what he had come to learn had occurred from his discussions with the applicant, the applicant’s family and friends. That is, that he had told the police what he thought had happened from what he had learned from these conversations, rather than what he actually saw happen. 1852 Owen explained that he was 18 at the time and had never previously been in such a situation. He thought that his statement would be one of many and not of significance. 1791 See my discussion of the applicant’s evidence on this topic below. -- 342 of 496 -- [2026] SADC 27 337 1853 When Owen’s evidence and his statement are both carefully considered, the inconsistencies relate to only one real topic of significance, namely his observations immediately before and after the incident. I will return to those observations hereunder. 1854 Much was made by the applicant as to Owen’s version of his conversation with Lloyd and Dunn-Lawless after first seeing them having arrived at the party, as to his belief, uninvited. 1855 In his statement, Owen said:1792 At about 800 pm I saw two guys that I know from school. One was Patrick Dunn-Lawless and the other was Jack Lloyd. We had a big table with an umbrella on our lawn and I saw that they were sitting around the table smoking and drinking. I knew that neither of these guys had been invited and I didn’t want them there. I got a couple of my friends, Nick Chattaway and Dechlan Heames, and approached them. I said to them both “you are not invited can you please leave”. 1856 When Owen was cross-examined, a proposition was put to him that the language that he had used suggested he had deliberately taken the applicant and Mr Heames with him, for this discussion, by way of ‘back up’. The inference from this line of questioning was that the subsequent conversation was a hostile confrontation, rather than a calm or benign conversation. Both the applicant and Mr Heames were taller/larger guys and therefore could provide him with physical support, if necessary, to evict Lloyd and Dunn-Lawless from the party. 1857 In cross-examination, Owen maintained he did not specifically seek out the applicant and Mr Heames to go with him for this discussion, rather they had simply been with him at the time and therefore accompanied him. 1858 I agree that the way Owen’s police statement is worded suggests that he did deliberately take both Mr Heames and the applicant with him for this discussion (‘I got a couple of my friends ... and approached them’), 1793 notwithstanding Owen’s evidence to the contrary. This is consistent with Owen being of the belief that neither Lloyd nor Dunn-Lawless had been invited, him not wanting them there and the evidence that Owen’s parents only wanted guests known and approved of by Owen to be in attendance. However, it does not otherwise support the applicant’s evidence that the subsequent discussion was hostile and/or threatening. 1859 However, Owen’s intention in speaking to Lloyd and Dunn-Lawless was to ask them to leave the party as they had not been invited. There is nothing in either Owen’s statement or his evidence to suggest that he approached the discussion thinking he would have to physically remove them from the party. One can readily envisage Owen simply wanting some friends to be with him for moral support 1792 Exhibit P9 at [4]. 1793 Exhibit P9 at [4]. -- 343 of 496 -- [2026] SADC 27 338 during what would have otherwise been a difficult conversation for a teenager to have with other peers in a social setting. 1860 Further, what Owen said both in his statement and in evidence was that the subsequent conversation proceeded in an orderly and civil manner, with no suggestion of any threats or intimidating behaviour, and ended amicably, with an agreement that both Lloyd and Dunn-Lawless could stay as Kelly’s guests. The fact Mr Heames could not even recall being a proper part of this conversation is consistent with Owen’s recollection as to the nature of that conversation.1794 1861 While the differences in what Owen said about this in his statement and evidence may be relevant to the credibility and liability of Owen as a witness, the nature of the difference is not such as to assist the Court in terms of its determination of any of the real issues in dispute. Even if Owen took the applicant and Mr Heames with him as ‘back up’, the conversation was ultimately a cordial and peaceful one. 1862 Another aspect of Owen’s statement emphasised by the applicant was his recollection of what had occurred after the party, when he had a conversation with Lloyd and Dunn-Lawless out on the street. In his police statement, Owen had attributed Lloyd and Dunn-Lawless saying to him: Sorry for ruining your party. 1863 He had also told the police that when he had asked them why they had hit the applicant, Lloyd had responded: I was out taking a piss and Chattaway and I were talking. Then out of the blue he swung a fist at me. I dodged it. 1864 Dunn-Lawless was quoted as saying: I just ran over to help him out. 1865 In his evidence, Owen said he remembered speaking to Lloyd and Dunn- Lawless out in the street after the police had left. He said that they had not admitted anything that they had or had not done but had apologised that the evening was ruined. He said:1795 I think they said at the time that they had gotten in an altercation with Nick, but they didn’t go into any specifics as to what happened. 1866 When questioned as to the differences in his evidence and what was in his statement, Owen said that although he now had a good memory of the 1794 See further discussion and findings below. 1795 T 676.36-38. -- 344 of 496 -- [2026] SADC 27 339 conversation, he could not remember the specifics of what was said.1796 He thought that what he had told the police was a summary of the conversation. 1867 There was no dispute that there was a conversation between Owen and Dunn- Lawless and Lloyd, outside on the street, sometime after the party. 1868 There were in fact very minimal differences in the evidence that Owen gave as to that conversation and what he had told the police in his statement. Insofar as there were differences, they can simply be explained by the passage of time. 1869 It may well be the case that what Owen told the police was a summary of his recollection of the words used during that conversation. However, one must also remember that this was a conversation that occurred after Owen’s 18th birthday party. Owen had been consuming alcohol. I consider it most unlikely that he had a word-for-word recollection of the conversation when he spoke to the police on 11 January, about a month later. 1870 I consider it likely that what Owen told the police was simply his recollection of the gist of what had been said by Lloyd and Dunn-Lawless during that conversation. That is, that the applicant had started a fight with Lloyd out of the blue, and Dunn-Lawless had gone to Lloyd’s aid. 1871 I pause to note that the applicant submitted that Owen gave evidence at trial that during the conversation with Lloyd and Dunn-Lawless on the street, they denied having struck the applicant with a bottle.1797 This is inaccurate. At no stage did Owen give that evidence. 1872 The only aspect of significance where Owen’s evidence differed from what he said in his statement, was his observations, both immediately prior to and after the incident. The applicant submitted that the Court should adopt and accept what Owen said in his statement to the police as being evidence of the truth of what had in fact occurred. Further, it was submitted that what Owen had told the police, in terms of those observations, supported the applicant’s account of how he was injured. 1873 I have carefully considered Owen’s statement and the submissions made by the applicant. 1874 A primary submission was that the statement contradicted the evidence of Dunn-Lawless and Ms McCallum because it confirmed that the altercation occurred around the corner by the lemon tree and not at the table on the lawn where Dunn-Lawless and Lloyd had been sitting. Similarly, it made no mention of the applicant lifting up Lloyd in any type of bear hug, nor of any verbal altercation between the applicant and the first respondent. 1796 T 750.8-12. 1797 FDN 327 at [48]. -- 345 of 496 -- [2026] SADC 27 340 1875 It was submitted that if an altercation did occur in the way described by Dunn-Lawless and Ms McCallum, it would ‘have taken place directly in front of Owen Stankiewicz’.1798 It was submitted that this was apparent ‘from the fact that he directly observed [Dunn-Lawless] get up from the table and run to an area out of sight’.1799 It was submitted that had the altercation taken place at the table, ‘from his position’, Owen would have easily been able to see what occurred. 1876 The difficulty with each of these submissions is that there is nothing in Owen’s police statement stipulating where he was standing or positioned when he made the observations that he claimed to have made. As such, there is simply no foundation for a submission that an altercation of the type described by Dunn- Lawless and Ms McCallum would have taken place directly in front of him and that from his position he would have been easily able to see it. 1877 Another problem with this submission is that nowhere in the police statement did Owen describe Dunn-Lawless running to an area out of sight. Rather, what he said was that about five or 10 seconds after Lloyd and the applicant went around the corner, he saw Dunn-Lawless run from near the table to where the applicant and Lloyd had gone. 1878 In his statement, Owen said that about two minutes later, he saw Lloyd and Dunn-Lawless heading to the gate, apparently leaving in a hurry. 1879 Importantly, the police statement makes it clear that Owen did not see the incident occur. 1880 Another issue with the applicant’s submissions is that what Owen described in his statement does not in fact accord with the applicant’s version of events. 1881 The applicant gave evidence that after he was pushed by both Lloyd and Dunn-Lawless when he was urinating, they both walked back to the table to get the bottles which they then used as weapons against him. There is nothing in Owen’s statement about having observed any of this occur. 1882 Further, the applicant was quite clear in his evidence that he was first struck when he was in the area of H3 on the grid and that the incident had moved into grid reference H4. I agree with the submission made by Dunn-Lawless that the effect of the applicant’s evidence was that the incident happened near the table in a fairly central location on the back lawn. In other words, it was not ‘around the corner near the lemon tree’ as could possibly be inferred from Owen’s statement (noting of course that he did not witness it). Further, the applicant’s evidence was that he was urinating at H2 on the grid (that is, at the back, western fence) not near lemon tree, located on the side/southern fence at around I3. 1798 FDN 327 at [61]. 1799 Ibid. -- 346 of 496 -- [2026] SADC 27 341 1883 The applicant’s solicitors emphasised the fact that in his police statement, Owen had described seeing Dunn-Lawless get up from the table about five to 10 seconds after having seen Lloyd and the applicant go around the corner and then run from the table in their direction. It was submitted that this was simply inconsistent with the version of events as outlined by both Dunn-Lawless and Ms McCallum and therefore supported the applicant’s version of how the incident occurred. 1884 I agree with the first component of that submission but not the latter. What the applicant in fact described was urinating at the back fence and being pushed in the back by both Lloyd and Dunn-Lawless while he was urinating. He said:1800 They were at the table. As I started to urinate they came up behind me, pushed me into the fence. They went back to the table to get the bottles. 1885 In my view, this does not fit with Owen’s claimed observations as outlined in his statement. What can be inferred from that statement is that there was something that occurred between Lloyd and the applicant, around the corner near the lemon tree, which Dunn-Lawless had seen and then reacted to. This does not fit with the applicant’s evidence as to what occurred. 1886 Further, the applicant’s evidence was that the incident lasted for around five to eight minutes. This is inconsistent with what Owen told the police, namely that it was only two minutes after seeing Dunn-Lawless run in the direction where Lloyd and the applicant had gone, that he then saw Lloyd and Dunn-Lawless head towards the gate. 1887 Owen was cross-examined at length as to whether what he had told the police in fact represented the truth. He maintained that he was trying to provide a positive story for the applicant because as his friend, he wanted the applicant to have justice. He said he could not now remember having made the observations as described in the police statement and that if he had in fact seen those things, he would remember them as they were significant. After being cross-examined for some time about this, when it was suggested to him that it was more likely than not that what he had told the police in fact had happened, he said, ‘I genuinely don’t know.’1801 1888 It was submitted that the changes in Owen’s evidence from his statement were a fabrication for his own or his parents’ interests. 1889 The differences in Owen’s evidence and his statement, did not relate materially to any aspect of the case as alleged by the applicant against his parents. 1890 For example, there is nothing in Owen’s statement which suggests that anything untoward occurred at the party before the incident, or that anyone at the 1800 T 229.33-35. 1801 T 734.10. -- 347 of 496 -- [2026] SADC 27 342 party was behaving either drunkenly or aggressively before the incident. There is nothing in the statement which supports the applicant’s claim that the third and fourth respondents were supplying alcohol for the consumption of the young guests and/or that his parents had relinquished any supervisory role by spending the party inside getting drunk. There is nothing in Owen’s statement, but not in his evidence, which supports a factual finding that the incident was, or ought to have been, reasonably foreseeable to the third and fourth respondents. 1891 I disagree with the submission made by the applicants that by the time of trial, Owen ‘had every reason to lie about the circumstances and to distance himself from his previous version of events as it could harm his parents’ ability to defend the matter.’1802 Upon a careful analysis of Owen’s statement, there is nothing in that statement which could be construed as harming his parents as such. 1892 The applicant submitted that what was outlined in Owen’s statement ought be given preference to his evidence, in circumstances where the statement was provided shortly after the incident, when he knew he was required to tell the truth and had sworn that what he had said to be the truth. It was submitted that his explanations as to the differences in his evidence and statement were poor, self- serving and inconsistent. 1893 The applicant relied upon the decision in Nominal Defendant v Owens,1803 to support that submission. In that case, a wholly independent witness had come across an accident scene and provided a statement on that day as to what he had observed and expanded upon that statement the next day. He gave different evidence at trial. 1894 There was no objection to the tender of the statements pursuant to s 26D(1) of the Evidence Ordinance, pursuant to which the statement was admissible as evidence of the facts contained therein. Relevantly, Muirhead J noted that there was no real contest as to the accuracy of that written statement. Muirhead J stated:1804 The weight to be placed upon the documentary evidence was a matter for the trial judge, but he appears to have ignored it. Having perused the statements it seems to me that they should have been given weight. The fact that his Honour may not have regarded the man he saw five years later as a reliable witness, could hardly go to the issue of accuracy years previously when, as a member of the RAAF and in the course of his duty, he attended the scene and made entirely factual reports, one, the same day, the other a little more expansive the following day...[he] was not a witness claiming no knowledge of events through reflection of time, nor did he show any enthusiasm to refresh his memory. After referring to the statements his oral evidence remained unsatisfactory. 1895 The document having been admitted by consent, pursuant to this section, Muirhead J determined that the statement was admissible in support of a fact in 1802 FDN 327 at [57]. 1803 (1978) 22 ALR 128. 1804 Ibid at p 139. -- 348 of 496 -- [2026] SADC 27 343 issue and did have evidentiary weight. The trial judge appeared to have approached the matter on the basis the statements were in evidence merely by way of a prior inconsistent statement, rather than as evidence in proof of the facts alleged therein. The trial judge erred in attributing no evidentiary weight to the document. 1896 Owen’s statement was tendered pursuant to s 34C of the Evidence Act as evidence to prove a fact in issue. The statement therefore has evidentiary weight. The issue is what weight I attribute to it. 1897 In Nominal Defendant v Owens,1805 the statements were made contemporaneously, on the day of the relevant event and expanded upon the next day. In those circumstances, the Full Court of the Federal Court had held there was no reason to doubt the accuracy of those statements, provided by a party who had no interest in the matter. 1898 In this case, Owen did dispute the accuracy of his police statement. He was not an independent person at the time he gave his statement, insofar as he acknowledged he was a friend of the applicant, felt guilty for what had happened and wanted to help him. He is not an independent witness now, as his parents are the third and fourth respondents. 1899 Perhaps most importantly, the statement contains what I am satisfied is a clear error of fact, insofar as Owen told the police that in the aftermath of the incident, the applicant had blood ‘all over the front of his shirt’.1806 1900 The applicant gave evidence that the incident occurred after he had got out of the pool and went to urinate by the fence. Several other witnesses described him being in his bathers. During the triple zero call, reference is made to the applicant being cold as he was in his bathers. The operator suggested putting something around his shoulders such as a dry towel. 1901 Having regard to all of the evidence, I am satisfied that the applicant was not wearing a shirt at the time of the incident and that at the very least, this aspect of Owen’s police statement is inaccurate. Further, Owen’s claimed observations do not sit well with the evidence given by either the applicant, Dunn-Lawless or Ms McCallum, who were the only witnesses who gave evidence as to their observations of the actual incident. 1902 The very fact that Owen was prepared to tell the police a version of events as being the truth, if he had not actually observed those events, gives cause for concern as to both his overall credibility and reliability as a witness. 1903 Put another way, if Owen was prepared to tailor what he told the police in 2011 to assist his friend, why should the Court have any confidence that he is not doing similarly in terms of tailoring his evidence now to support a case brought as 1805 Ibid. 1806 Exhibit P9 at [11]. -- 349 of 496 -- [2026] SADC 27 344 against his parents as a respondent? Of course, this must work both ways. If Owen is now prepared to tailor his evidence to help his parents, why would he not have done similarly to help out his friend in 2011? 1904 There were other aspects of Owen’s evidence which concerned me. He said that he saw the applicant drinking both beer and spirits during the party and that he had been drinking since they had started setting up at 2:00pm. He said, ‘I hadn’t seen him stop drinking all night’.1807 1905 In his police statement, Owen had been asked about the applicant’s behaviour and consumption of alcohol during the party and explained this in the following terms:1808 He certainly wasn’t drinking that much at the party. He was pretty coherent at all times that night and seemed happy the entire night. 1906 When cross-examined as to that apparent inconsistency, Owen explained that in fact, he had not been watching how much the applicant had been drinking and that he had not been acting drunk at the party, in the way that he had seen him act in the past. He said he did, however, have a drink in his hand every time he had been with him. He went on to say, ‘I have seen a lot of instances where Chattaway was drunk and incoherent and he wasn’t that at this party’.1809 1907 On a similar note, when describing the applicant to the police, he described having known the applicant for about a year and that they were really good friends. He said, ‘I’ve never seen him be violent or aggressive’.1810 1908 In his evidence, Owen described having seen the applicant ‘body check people’ as he walked past them to see if he could get a reaction out of them.1811 When cross-examined as to the potential inconsistency between that evidence and his denial to police of ever having observed the applicant behave aggressively, he said:1812 I suppose in the context of talking to police about assault, I didn’t think that something that a lot of my friends have engaged in, which is, you know, rough housing, would be in the same category. 1909 Although that explanation on its face may hold, my impression of the evidence given by Owen in terms of the applicant ‘body checking people’, was intended to paint the applicant as someone who did routinely act physically (and therefore aggressively) towards others. 1807 T 656.5-6. 1808 Exhibit P9 at [14]. 1809 T 757.13-15. 1810 Exhibit P9 at [14]. 1811 T 693.30-34, being observations made at times other than during the party. 1812 T 754.36-755.1. -- 350 of 496 -- [2026] SADC 27 345 1910 In his evidence, Owen described the applicant as being ‘erratic’, someone who was ‘a little bit on the spectrum or antisocial’ and a bigger guy who certainly liked to rough house people. He talked about having seen the applicant smoking marijuana and crushing up and snorting Ritalin. 1911 He described the applicant as someone who was either on a high or very low and depressed. In cross-examination, he gave the following evidence:1813 Q. Would you categorise his behaviour as being particularly predictable when he was in that [depressive] state. A. The issue I have with predicting Nick's behaviour when I knew him and got closer to him over those four, three months that we were closer friends at the end of year 12 was that the majority of the time that we were seeing each other was at parties, so he was either under the influence of drugs or alcohol. 1912 There was a dispute at trial as to whether the applicant had in fact consumed cannabis during the period prior to the incident. It may well be the case that as one of the applicant’s friends, Owen did see the applicant consume cannabis from time to time. It may also be the case that his description of the applicant as someone who had changeable moods was accurate. My concern was how this evidence unfolded and was elicited. There was no need for Owen to refer to his observations of the applicant being under the influence of drugs or alcohol in response to the specific question asked. The evidence seemed very obviously pointed at portraying the applicant in a negative light. 1913 Other evidence by Owen which falls into the same category is his recollection of the circumstances in which his mother had called the applicant’s mother after the incident. There was simply no need for Owen to add the comment that:1814 It didn’t sound it was an irregular occurrence that she would have to come and pick him up from a party. 1914 Again, there was simply no need for such a comment to be made, the only purpose of which was to denigrate the applicant. 1915 I note the submission made by the applicant that if in fact Owen’s statement had been tailored to reflect the story that had been accepted as the truth by the applicant’s circle of friends, it is unusual that no reference was made as to any bottles being used as weapons during the assault. 1916 While the statement does not specifically refer to bottles, in Owen’s description of his observations of Dunn-Lawless before the incident, he stated, ‘I couldn’t see if he had anything in his hands, but he may well have.’1815 The addition of this ‘proviso’ appears to be designed to leave open the possibility that Dunn-Lawless was carrying something (for example, a bottle) being in line with 1813 T 695.18-25. 1814 T 656.15-17. 1815 Exhibit P9 at [9]. -- 351 of 496 -- [2026] SADC 27 346 the narrative Owen had heard. The way this is worded is consistent with Owen wanting to frame his statement in a way which lent some support to his friend. 1917 I accept that Owen’s statement is likely to be more accurate than his evidence given some 12 years later, particularly given how uncertain Owen was as to what was now his memory of what had occurred. 1918 However, as outlined above, what is contained in that statement does not provide real assistance to the Court in resolving the facts in issue. 1919 As outlined above, if Owen took the applicant and Mr Heames with him to ‘confront’ Lloyd and Dunn-Lawless about being at the party, this is ultimately irrelevant as on all of the evidence, save for that of the applicant, the conversation that was then had, proceeded uneventfully. On all of the evidence, including the applicant’s evidence, it ended well. 1920 On all of the evidence, including the applicant’s, thereafter the party proceeded peacefully and uneventfully until the incident. 1921 What Owen told the police about his prior observations of Lloyd’s behaviour at parties and what he said in his evidence, was remarkably similar. That is, that he had seen Lloyd drunk at parties, that he did not want him at the party initially and that he had been aware in the past of the fact that Lloyd had tried to get into fights with others at parties. Owen did not shy away from that. There was however no evidence of anyone observing Lloyd behave aggressively or drunkenly at the party. Indeed, there was no evidence at all to support a finding that Lloyd was drunk at any time during the party. 1922 Further, as outlined above, the statement contains an important error, being that Owen described the applicant wearing a shirt immediately after (and by inference) at the time of the incident. I am satisfied the applicant was not wearing a shirt at the time and was only wearing boardshorts. This causes me to doubt whether Owen did in fact make the observations as outlined in that statement, namely that he saw the applicant and Lloyd go around the corner to the lemon tree and that five to 10 seconds later, he saw Dunn-Lawless run in their direction. The fact that these claimed observations are not consistent with any other witness’ version of what did, in fact, occur during the incident, enhances that doubt. 1923 Having regard to the above analysis, it follows that I have been very cautious in my acceptance of Owen’s evidence, and/or what he told the police in his statement, except insofar as it is otherwise supported by reliable evidence. Ms McCallum 1924 Ms McCallum was the only non-party witness who gave evidence of having witnessed the incident. As such, her evidence was of particular importance and interest to the Court. -- 352 of 496 -- [2026] SADC 27 347 1925 The applicant submitted that the Court should have ‘serious reservations’ before acting on Ms McCallum’s evidence.1816 1926 The primary premise for that submission was that as Ms McCallum was close friends with Lloyd and Dunn-Lawless at school, and in fact left the party with them, the Court could not be satisfied that she had not framed her evidence to present a favourable version of events for Dunn-Lawless’ benefit. It was submitted that this may have been done by her deliberately, insofar as she was acting in collusion with Dunn-Lawless, or simply to help him, or that she had done so sub- consciously, because her recollection had been contaminated by what either Dunn- Lawless or Lloyd had told her about the circumstances of the incident. 1927 Ms McCallum denied she had tailored her evidence to help Dunn-Lawless.1817 1928 Ms McCallum acknowledged that she had been close friends with both Lloyd and Dunn-Lawless at school. She said she had not had contact with Dunn-Lawless either in person or via social media since 2011. Dunn-Lawless said he had last communicated or spoken with her in 2016. However, there was no evidence to suggest that Ms McCallum had in fact retained any ongoing friendship with Dunn- Lawless since the incident. 1929 Ms McCallum provided a statement to the solicitors who acted for Dunn- Lawless in the criminal prosecution. An ancillary submission was made to the effect that as Dunn-Lawless had known for many years what was in that statement, he had framed his evidence to ensure what he said was in accord with Ms McCallum’s recollection. That proposition was never put to Dunn-Lawless in cross-examination. 1930 An application was made by the applicant for the production of that statement on the basis that any claim for legal professional privilege over that document was waived when a copy was provided to the third and fourth respondents. Ultimately that application was not pressed. The statement was not before the Court. 1931 Ms McCallum did not provide a police statement, notwithstanding she claimed to have been an eyewitness to the incident. She explained that she had not been advised by Dunn-Lawless’ solicitors, at the time, to give such a statement. It was not suggested that to her that the reason she had declined to give a police statement was because what she had said in any such statement was untrue. 1932 Ms McCallum did not come to court voluntarily. Although she was subpoenaed by the third and fourth respondents, she was in fact called to give evidence by Dunn-Lawless. If, in fact, what Ms McCallum had said in that statement was unhelpful to Dunn-Lawless, it makes little sense for him to then call her as his witness to defend the claim at trial. 1816 FDN 327 at [76]. 1817 T 488.24-29. -- 353 of 496 -- [2026] SADC 27 348 1933 There was no evidence that Ms McCallum was ever approached by the police about the incident. She was only 17 when the incident occurred. The prosecution ultimately did not proceed, which may provide an explanation as to why no one ever asked her to give a police statement. 1934 Although it was submitted that Ms McCallum’s evidence was ‘strangely largely consistent’ with that of Dunn-Lawless,1818 there were, in fact, many significant differences in their evidence, which tell against Ms McCallum and Dunn-Lawless having colluded to present a false version of events to the Court. Those differences include: • Ms McCallum gave evidence that she drove Lloyd and Dunn-Lawless to the party and that they arrived at around 8:30pm, when it was getting darker. Dunn-Lawless was adamant he arrived at the party independently of Lloyd and had been driven by his friend, Miles Franklin. He said he arrived around 7:00pm, that he left the party briefly with Miles and another friend to go to a bottle shop, and that he saw Lloyd for the first time at the party, after he had returned from the bottle shop. • Ms McCallum said that immediately before the incident, Lloyd returned to the table from the back fence where he had gone to urinate. She did not refer to him saying anything to Dunn-Lawless at that time. She said the applicant came up behind Lloyd and gave him a bear hug, when he was ‘right up the other side of the table’, about half a metre away from her.1819 Dunn-Lawless described that ‘bear hug’ as occurring at approximately H3 on the grid, whereas the table was at G4/5. In other words, Dunn-Lawless described the ‘bear hug’ as occurring a few metres away from the table, albeit in a position opposite where Ms McCallum was sitting, and therefore effectively in front of her, but more than half a metre away. • Ms McCallum gave no evidence of observing any earlier occasion during the party when the applicant had lifted Lloyd up in a bear hug when they were both standing near the end of the pergola. Ms McCallum said she was sitting at the table in the grassed area facing west. As such, she was facing away from the area where Dunn-Lawless claimed this earlier bear hug had occurred, thus providing a potential explanation for why she did not see it. • Ms McCallum described seeing both Lloyd and the applicant throwing punches before the applicant hit Lloyd, causing him to drop his beer bottle, at which time she said Dunn-Lawless entered the fray, whereas Dunn- Lawless did not describe punches being thrown before that hit on Lloyd. • Ms McCallum gave evidence that she did not see the applicant make contact with Dunn-Lawless during the incident, whereas Dunn-Lawless 1818 FDN 327 at [83]. 1819 T 471.2-8. -- 354 of 496 -- [2026] SADC 27 349 described being hit by the applicant with two separate strikes to the left side of his face. • Ms McCallum gave evidence that prior to leaving the party, she, Lloyd and Dunn-Lawless had a conversation with Owen. She described him as being visibly upset at what had happened and had said that the applicant was saying he had been hit by bottles, which the three of them had immediately denied. Dunn-Lawless gave no evidence of having any such conversation with Owen before leaving the party. Owen’s evidence was that he did not see Lloyd and Dunn-Lawless at the party after he became aware of the incident. He did not see them leave. Similarly, there is nothing in Owen’s police statement to this effect. • Ms McCallum had no recollection of the applicant saying anything between the time of the incident and when she left the party, whereas Dunn-Lawless claimed that immediately after the incident, the applicant had said, out loud, words to the effect of ‘I’ve been bottled’. • Ms McCallum recalled leaving the party and walking down the driveway with Lloyd, Dunn-Lawless and Megan Voo. She said she believed only she, Lloyd and Dunn-Lawless got in her car, as she was driving. However she could not recall dropping them home and gave no evidence of what happened thereafter. Dunn-Lawless said he, Lloyd and Ms McCallum left the party together, but that Bryony Hardy had offered them a lift home, which they had accepted. • Ms McCallum was quite certain that they (she, Lloyd and Dunn-Lawless) did not go back to the party after the incident.1820 This evidence was said to be inconsistent with the evidence given by Dunn-Lawless (namely that they had driven from McDonald’s back to the party and parked in the street, and that he and Lloyd had then spoken with Owen outside on the street). It was also said to be inconsistent with Owen’s evidence on this topic. 1935 While some of these differences arguably relate to peripheral issues, if Ms McCallum and Dunn-Lawless had deliberately colluded together to present a false version, one would expect Ms McCallum to have included in her evidence a recollection of seeing the applicant strike Dunn-Lawless, prior to Dunn-Lawless striking the applicant. 1936 The very many differences in their evidence tell against it being a product of collusion. However, I have also carefully considered whether these differences (and in particular, the differences in Ms McCallum’s account from that of both Owen and Dunn-Lawless) can, in fact, be reconciled or explained, or are otherwise 1820 T 485.9. -- 355 of 496 -- [2026] SADC 27 350 indicative of her simply being unable to recall part of what was a false account or an account based on what others had told her. 1937 As stated, Ms McCallum was quite adamant that she, Lloyd and Dunn- Lawless spoke with Owen in the driveway before they left the party and she believed that the topic of bottles having been used was mentioned by Owen and refuted by them. She was cross-examined about this in some detail and maintained there was such a conversation. Neither Owen nor Dunn-Lawless described any such conversation. I consider it likely that they both would have a memory of such a conversation, had it, in fact, occurred, at that time. 1938 There was no evidence to suggest that Ms McCallum was part of the subsequent conversation which occurred out on the street, after the party, involving Owen, Lloyd and Dunn-Lawless. Further, neither Owen nor Dunn-Lawless gave evidence that the topic of bottles being used was either raised or refuted during that conversation. 1939 However, an issue which was never explored at trial was whether Lloyd, Dunn-Lawless, Owen and Ms McCallum continued to socialise and/or see each other at other parties during the summer after they finished Year 12. They all went to Scotch College and had been in Year 12 together. Although Owen was not friends with Dunn-Lawless and Lloyd, he was friends with Kelly (who was friends with them). One can readily conceive of a situation where they all found themselves at another event together, either another 18th birthday party or a New Year gathering, and a conversation about what had occurred at the party ensued. Of course there was no evidence to this effect, but Owen talked of being involved in around 100 conversations where the incident was raised. It was certainly a topic of great interest to Owen’s friendship group. 1940 Notwithstanding Ms McCallum was quite certain this conversation had occurred in the driveway at the party, I am satisfied she is mistaken about this, rather than lying about it. It is possible that a conversation that she now recalls and assumes occurred at the party, as it was about the incident, in fact occurred at another time after the party, but around the same period in her life. 1941 Ms McCallum gave evidence that Owen had made it abundantly clear that they should leave. Again, this was not consistent with Owen’s evidence (or police statement) or Dunn-Lawless’ evidence. I consider Ms McCallum is again mistaken in this respect. I do not think she was making this up. Rather, I consider it likely that she has simply assumed they left the party in circumstances where Owen (whose house and party it was) would have wanted them to leave, given what had happened. Ms McCallum explained that she thought it necessary to leave because she was friends with Lloyd and Dunn-Lawless, even though she was not personally involved in the incident. This explanation makes sense, particularly when viewed from the perspective of a then 17-year-old. -- 356 of 496 -- [2026] SADC 27 351 1942 Ms McCallum insisted that they did not go back to the party. There was no evidence that Lloyd, Dunn-Lawless and/or Ms McCallum re-entered the premises, such that they made their way back inside to rejoin the party. Rather, Dunn- Lawless gave evidence that after sitting in the parked car in the street for about five to 10 minutes, he got out of the car. When asked if anyone else got out of the car with him, he said, ‘Jack’. He then recalled he and Lloyd talking with Owen on the street outside the premises and had no memory of anyone else being there for that conversation. Owen only described Lloyd and Dunn-Lawless as being present during that conversation. 1943 In these circumstances, Ms McCallum’s evidence on this topic can simply be explained on the basis that she stayed in the parked car during this short period. I consider it likely that she has simply forgotten this, it not being of any particular moment to her (albeit much more significant to Dunn-Lawless given the circumstances). Perhaps more importantly, technically speaking, she did not in fact, return or go back to the party, nor did Lloyd or Dunn-Lawless. 1944 Dunn-Lawless gave very detailed evidence about how he arrived at the party (and left the party) which differed from Ms McCallum’s evidence. It is difficult to reconcile that evidence, other than on the basis that one of them is mistaken. I consider it much more likely that Dunn-Lawless’ recollection is accurate, and Ms McCallum is mistaken. The party and the incident were far more important to Dunn-Lawless than Ms McCallum. He was charged with a serious offence arising from what happened, meaning he had to turn his mind to the details of the party and the incident shortly thereafter. 1945 The precise circumstances of Ms McCallum’s arrival at the party are a peripheral issue and not something one would necessarily expect her to remember. She may well have confused how she got to this party with a memory of arriving at another similar party held around that same time in her life. Alternatively, she may now simply assume she arrived with both Lloyd and Dunn-Lawless, given she left the party with them. 1946 Dunn-Lawless gave evidence that Bryony Hardy offered them (him, Lloyd and Ms McCallum) a lift home. Ms McCallum had a very limited recollection of what occurred after the party and said she believed they got in her car, as she had driven there. She did mention Megan Voo being with them as they left, rather than Bryony. Again, this difference is difficult to reconcile beyond the effects of the passage of time on one or both of their memories. It is not a detail one would lie about. It serves no purpose. Again, I consider it likely that Ms McCallum is mistaken about this. Her evidence was to the effect that she thought she had driven them home because she had driven there. If she is mistaken about having driven to the party, this would necessarily impact on her recollection of how she got home. 1947 As such, I consider that there are aspects of Ms McCallum’s evidence that are likely inaccurate, due to the effects of the passage of time. -- 357 of 496 -- [2026] SADC 27 352 1948 Ms McCallum is employed in a professional capacity as a People and Business Culture partner. I consider it is inherently unlikely that she would risk her reputation to lie for Dunn-Lawless in circumstances where there was no evidence of any ongoing connection (let alone ongoing friendship) between them. My overall impression of Ms McCallum was that she was an honest witness, who was telling the Court what she genuinely remembered to have happened, notwithstanding she may now be mistaken about the peripheral aspects of the event. 1949 I am satisfied that Ms McCallum did not collude with Dunn-Lawless to give false evidence as to the circumstances of the incident. I am also satisfied that Ms McCallum did not otherwise knowingly lie to the Court about what she saw to assist Dunn-Lawless. 1950 Ms McCallum’s evidence that she was sitting at the table, facing west, at the time of the incident, such that she saw the incident unfold, was not challenged. Rather, her evidence was challenged on the basis that she really had no memory of the incident, given the passage of time. Ms McCallum readily acknowledged that aspects of her memory were incomplete (particularly timeframes). As she said, she remembered things that were memorable, such as the incident but that she now had no real memory of things that were not otherwise memorable (or important). I accept that evidence. 1951 In this respect, Ms McCallum’s memory of the incident was that it occurred relatively soon after they had arrived at the party – her estimate was around 8:45pm or 9:00pm. That memory is clearly inaccurate, noting Ms Dansie made the triple zero call at 10:56pm. During that call Ms Dansie said the incident had occurred about 20 minutes ago, which equates to around 10:35pm to 10:40pm. When questioned about this inaccuracy, Ms McCallum conceded she could not now recall precisely how long she was at the party and that this had also impacted on her ability to recall precisely what time the incident occurred. I accept that evidence and her explanation that ‘the details pertaining to parts of that night are indistinct but some details aren’t indistinct’.1821 That is simply how memory works. 1952 I have, of course, considered whether in light of the identified anomalies in Ms McCallum’s evidence, I can be satisfied that her account of other aspects of the party and, importantly, the incident itself, is reliable. 1953 Ms McCallum gave evidence that she was not drinking at the party, both because she was 17 and she was driving. As previously stated, how Ms McCallum got to (and left) the party, are peripheral matters. Similarly, whether she was drinking at this party, is a peripheral matter. As I consider it likely she is mistaken about how she got to the party, any assumption that she has made that she was not drinking because she was driving, may also be mistaken. 1821 T 487.7-8. -- 358 of 496 -- [2026] SADC 27 353 1954 It may be that Ms McCallum is entirely accurate about the fact she was not drinking, because she did not, in fact, ever drink alcohol until she turned 18 (and/or because she did, in fact, drive to the party, but only drove Lloyd there, not Lloyd and Dunn-Lawless). However, in the absence of there being further evidence about her usual practice at the time, and her other difficulty recalling peripheral issues, I am unable to accept the accuracy of that evidence. 1955 Ms McCallum had a clear recollection of seeing the applicant in the pool before the incident, drinking beer and behaving loudly, jumping in and splashing. She described him as ‘acting drunk’. He stood out to her as he was behaving differently to other partygoers. She explained that she had worked at her parent’s pub since she was 14 and therefore, at the time of the party, had experience in making observations as to whether people were affected by alcohol. I accept that evidence, which was not challenged. If, as she claimed, she was not drinking, her observations of such behaviour were likely more acute (and accurate) than those of others who were also drinking, even if those others were not ‘drunk’ as such. 1956 The applicant conceded he spent most of the party in the pool and that he was drinking beer at the party. As I will discuss in more detail below, he was, in fact, intoxicated. Ms McCallum’s observations are consistent with this. Further, the fact that she can now recall this (but not other aspects of the evening) is readily explicable by the fact that it was the same person she had seen behaving boisterously in the pool, who was later involved in the incident, being the memorable part of the party. 1957 Ms McCallum gave evidence that the applicant was in his bathers, with no top on, at the time of the incident. This is consistent with what Ms Dansie described to the triple zero operator. She described the location of the table in an area consistent with the other evidence. She recalled being able to see people inside the house through the glass windows and of there being a downlight on the corner of the house at H6 on the grid. 1958 As such, there were many aspects of Ms McCallum’s account which I am satisfied were accurate. 1959 Ms McCallum’s account of the order in which the events occurred during the incident was never rigorously tested under cross-examination. I consider it likely that she may now be mistaken in terms of that order, given the incident occurred so long ago and things were happening so quickly in front of her. By her own admission, she was shocked at what she was seeing. As such, it is likely and I find that her memory of some aspects of the incident may not be entirely accurate, particularly the precise order in which punches were thrown and by whom. 1960 However, it was my perception that the way Ms McCallum described the incident unfold was consistent with her giving an account of something happening in front of her and from her own personal perspective. She did not appear to me to be retelling a story told to her by others. Rather she appeared to be describing -- 359 of 496 -- [2026] SADC 27 354 something she had actually seen, in a position opposite from her, only a very short distance away. 1961 I consider it likely that in the period after the incident (whether that was in the car immediately thereafter or otherwise), Ms McCallum did discuss the circumstances of the incident with Dunn-Lawless (and/or Lloyd). As Dunn- Lawless has always maintained that bottles were not used during the incident, it is likely that was an integral feature of any such discussion. However, there were other ancillary details, such as the ‘bear hug’ immediately preceding the altercation and the duration and general location of the incident, where Ms McCallum’s evidence was largely consistent with that of Dunn-Lawless. It was never suggested to Ms McCallum that she had discussed such details with Dunn-Lawless. If she had, I would not have anticipated her account to have been delivered in the way she delivered it, that is, in a manner consistent with reliving what she had seen. 1962 In addition, a telling aspect of Ms McCallum’s evidence was the evidence she gave in cross-examination when she was asked if Lloyd and Dunn-Lawless had told her in the car, after the party, that they had not hit the applicant with a bottle. Ms McCallum responded immediately, ‘I saw that they hadn’t hit him with a bottle.’1822 The manner of her response was compelling. I believed her. 1963 I am therefore satisfied that Ms McCallum’s account of the incident is based on her recollection of what she saw occur, in front of her rather than what she had been told by others had occurred. 1964 As explained above, I am satisfied some aspects of her account are unreliable insofar as she was unable to recall certain less important details of the party, and/or may now be mistaken about some ancillary or peripheral matters, despite being adamant that her memory of those matters was accurate. 1965 As such, I have been very mindful of those inaccuracies in my assessment of the reliability of Ms McCallum’s account of the incident. I have rigorously tested that account by reference to all of the evidence. Dunn-Lawless 1966 The applicant submitted that Dunn-Lawless had given self-serving and unreliable evidence, delivered in a condescending manner. It was submitted that before he answered a question, he had considered it carefully, to determine whether ‘the truth’ would be damaging for him. That was not my impression of Dunn- Lawless. 1967 Dunn-Lawless was a very calm and considered witness. His manner, when giving his evidence, was consistent with his manner throughout the course of these very lengthy proceedings, during most of which he was self-represented. He was quiet, thoughtful and somewhat introverted, indeed often so quiet I needed to 1822 T 483.14. -- 360 of 496 -- [2026] SADC 27 355 remind him to speak up. I reject any submission that his presentation was condescending, arrogant or patronising. He was always polite and never lost his temper, even under the scrutiny of detailed cross-examination. 1968 It was submitted that Dunn-Lawless’ evidence (and that of Ms McCallum) about the incident ought be rejected, it being in ‘direct conflict’ with what Owen told the police, the applicant’s evidence and the evidence of A/Prof Pennington. 1969 As previously stated, Owen did not see the incident. The only aspect of Owen’s statement which is, apparently, in contradiction to what Dunn-Lawless said about the incident, was Owen’s statement that he saw Dunn-Lawless run from near the table to around the corner, near the lemon tree, about five to 10 seconds after he had seen the applicant and Lloyd go around that corner. 1970 In his evidence, Owen maintained he had not seen Dunn-Lawless run from the table. He explained he had said this to the police as it fit with the narrative of what he had been told had happened. 1971 Dunn-Lawless described being at the table and hearing Lloyd call his name, as both Lloyd and the applicant returned from where they had been urinating. He described getting up from the table and walking, not running, to where they were, albeit he described he moved because what Lloyd said carried with it a sense of urgency. 1972 While this is not what Owen described in his statement, it is not dissimilar to it. The same can be said about what Owen told the police about what he saw prior to the incident, it does not fit squarely within the applicant’s version but is not dissimilar to it. 1973 I have previously outlined my views as to the evidence of Prof David and A/Prof Pennington. Dunn-Lawless described only striking the applicant once, with his right fist, to the left side of the applicant’s nose. He did not believe any other punches delivered by him or Lloyd connected with the applicant. He must be mistaken about this. I am satisfied from the expert evidence that the applicant sustained two strikes to his face, once from the right side and once from the left side. 1974 However, as previously stated, I am satisfied that the applicant’s facial injuries were consistent with having been caused either by fists or bottles. 1975 Dunn-Lawless is obviously an intelligent young man. A/Prof Pennington gave evidence before Dunn-Lawless gave evidence. He must have been well aware of the contents of Prof David’s reports and statement. The fact he gave evidence describing only one punch connecting, despite this, tells against him having tailored his evidence to fit with the medical evidence. -- 361 of 496 -- [2026] SADC 27 356 1976 The fact Dunn-Lawless now recalls only one punch landing could well be a product of the chaos of the incident, which on his version, unfolded in a very short time frame of some 10 to 15 seconds. 1977 As previously stated, there were some differences in Dunn-Lawless’ account of the incident compared to Ms McCallum’s account, most notably being her evidence that she did not recall seeing the applicant strike Dunn-Lawless during the incident. Ms McCallum described the incident as occurring virtually at the table, whereas Dunn-Lawless described having to move from the table to close the distance of about three metres to get to where Lloyd and the applicant were, that is, at around H3 of the grid, closer to the back fence. There were obvious differences in their evidence as to how Dunn-Lawless arrived at the party and how they left. 1978 As previously stated, the peripheral circumstances of the party are events of far greater significance to Dunn-Lawless, than Ms McCallum, who acknowledged her difficulty in recalling ‘indistinct’ matters, thus providing an explanation for the differences in their evidence on such topics. 1979 I have been cautious in my consideration of Dunn-Lawless’ evidence as there is clearly a lot at stake for him in terms of this litigation. He appeared to have maintained an unusually detailed recollection of aspects of the party, that, on its face, may raise a concern that his account was a reconstruction, rather than an accurate recitation of what he remembered to have happened. 1980 For example, the evidence Dunn-Lawless gave about leaving the party to go to the bottle shop and selecting the bottle of ‘Slippery Fish’ wine contained a significant level of detail one would not usually expect someone to recall about something from so many years before. Other examples include his recall of there being cheap champagne (or ‘Passion Pop’) on the table and the fact that Lloyd was drinking beer from a long neck bottle before the incident. His account of the various stages of the incident was extremely detailed, in terms of his recollection of his and others’ movements during that short, chaotic period. 1981 Dunn-Lawless knew the police had attended the premises after the party as he saw a police car pull up when they were sitting in the car in the street. He must have known, from that point in time, that there was a very real possibility that his role in the incident would be investigated. Further, I anticipate that he must have spoken about the incident and its circumstances countless times, both immediately after the incident and at the time of the prosecution and when instructing solicitors to prepare and file his defence in this action. It was something he had to refer back to, in his mind, on multiple occasions. This provides a potential explanation for the level of detail he now claims to recall. 1982 Dunn-Lawless’ evidence that he did not arrive with Lloyd and that he purchased ‘Slippery Fish’ white wine to drink during the party, are unusual things to either lie about or be mistaken about. Dunn-Lawless acknowledged the -- 362 of 496 -- [2026] SADC 27 357 proximity of both cheap champagne bottles and long neck beer bottles to where the incident occurred. As such, whether he had earlier been drinking bottled white wine was ultimately irrelevant in terms of the Court assessing the likelihood that a bottle or bottles were wielded by Lloyd and/or Dunn-Lawless, during the incident. 1983 It may be thought that in giving this evidence, Dunn-Lawless was trying to distance himself from Lloyd, insofar as this evidence formed part of a narrative explaining his arrival at the party without Lloyd and his subsequent return from the bottle shop, by which time Lloyd had arrived at the party. However, Dunn- Lawless was clear in his evidence that Lloyd was his friend, he spent time with Lloyd at the party, and specifically that they spent time together at the table in the grassed area. In my view, no purpose was served by Dunn-Lawless trying to distance himself from Lloyd by falsely denying that they had arrived at the party together. 1984 I have considered the possibility that this evidence was given by Dunn- Lawless to disassociate himself from any involvement in any conversation between Owen and Lloyd about them being at the party uninvited. However, there was no evidence that any such discussion was prompted by Owen seeing Lloyd and Dunn-Lawless arrive at the party together. 1985 Dunn-Lawless denied being directly involved in any such conversation, whereas Owen was quite clear in his evidence (and statement) that Dunn-Lawless was part of the conversation. However, as Dunn-Lawless was invited to the party, such conversation is unlikely to have been of significance to him. I am satisfied Owen’s issue was with Lloyd, not Dunn-Lawless. This explains why Dunn- Lawless does not recall the conversation, that is, it was simply unimportant to him. It is not necessarily something he would remember or have thought was in any way relevant to the later events which unfolded.1823 1986 Dunn-Lawless was quite clear in his evidence that he had learned that there was a ‘narrative’ going around at the party that bottles had been used, that they were concerned about that and that is why they went back to the party, that is, to tell Owen their side of the story. He believed he had mentioned this in the phone call he made to his parents, shortly after leaving the party. Ancillary to this was Dunn-Lawless’ evidence that immediately after the incident, the applicant had exclaimed words to the effect of ‘I’ve been bottled’. I will return to this aspect of the evidence shortly. 1987 Owen gave evidence that there was no talk at all during the party about a bottle being used. However, he gave evidence that he came to learn thereafter – at or before the applicant and Ms Dansie came to the house on the Tuesday to look for bottles - that there was some suggestion that bottles had been used. He believed this was something that had been mentioned by the doctors. 1823 See my findings below as to what occurred during that discussion. -- 363 of 496 -- [2026] SADC 27 358 1988 Ms Dansie told the triple zero operator that the applicant had been punched and specifically denied that weapons had been used. That conversation was at 10:56pm on 5 December 2010, about 20 minutes after the incident. If the applicant had, at any time, prior to (or during) that call being made, told someone (other than Lloyd and/or Dunn-Lawless who had left the scene) that he had been hit by a bottle, or if someone had seen the applicant being hit by a bottle, it is unlikely that such information would not have been made known to Ms Dansie, so that she could communicate this important information to the operator. I say ‘important information’; because as a matter of common sense, one may assume the ramifications from being struck in the face or head with a bottle would be serious and potentially more serious than those arising from a punch or punches. 1989 The police arrived at the premises at around 11:12pm, as the applicant was leaving in the ambulance. They were therefore unable to speak with the applicant. Instead, they spoke to ‘witnesses who are all known to the victim’. I am satisfied that from what those witnesses told the police, the police were of the understanding that the incident was a ‘... bit of a misunderstanding between all parties, play fight gone haywire.’1824 There was nothing in the police incident report to suggest any attempt was made to look for bottles that may have been discarded after being used as weapons in the incident. 1990 Ms Dansie denied speaking to the police. There is no evidence as to who spoke to police at the scene. The description of the incident as recorded by police is inconsistent with there being any talk, at the time of their attendance, of the possibility that a bottle or bottles were used. It is unlikely that someone with such information, who was at the premises during the police attendance, would not have communicated that to the police at the time. 1991 I am therefore satisfied that there was no general discussion (or speculation) at the party to the effect that the applicant had been hit with a bottle or bottles, and that this information only came to be known by others, after the applicant was discharged from hospital and after he reported the incident to the police on Tuesday 7 December 2010. 1992 I have carefully considered whether Dunn-Lawless’ evidence on this topic was a lie, or whether he is simply genuinely mistaken in his memory. 1993 Dunn-Lawless made frank concessions, against his interests, as to his involvement in felling the applicant, consistent with him being an honest witness and not a witness prone to falsehoods. Honest witnesses can be mistaken in their recollections. I consider it likely that there were aspects of Dunn-Lawless’ evidence that were the product of a mistaken memory, rather than a deliberate falsehood, such as his inability to recall precisely what happened after the party 1824 Exhibit P11. -- 364 of 496 -- [2026] SADC 27 359 and being present for at least part of the discussion with Owen about whether he and Lloyd had been invited to the party. 1994 There was a focus at trial on the incident being a significant traumatic event in the applicant’s life. For very different reasons, the incident was also a traumatic event for Dunn-Lawless. He had just finished Year 12. This was meant to be a time of celebration. He was subsequently charged with a very serious offence arising from his involvement in the incident. Notwithstanding the prosecution was ultimately not proceeded with, since 2014, Dunn-Lawless has been a respondent to these proceedings and has therefore carried the financial and emotional burden associated with the proceedings. The reality is that for most of his adult life, Dunn- Lawless has carried the weight of uncertainty associated with being involved in this action, and the burden of defending the allegations. 1995 In these circumstances, it would be extraordinary if that toll had not had some impact on Dunn-Lawless’ memory of precisely what occurred that night. 1996 After careful consideration of this evidence and the whole of the evidence, I consider it likely Dunn-Lawless’ evidence on this topic (that is, that there was a narrative going on at the party that bottles had been used) is a reconstruction based on what he subsequently came to understand to be the allegations made against him. That is, that within days of the incident, he was accused by the applicant of having struck him several times with a long neck beer bottle.1825 1997 I consider it likely that Dunn-Lawless is now genuinely mistaken in his recollection of those accusations having been levelled against him during the party, rather than in the days shortly thereafter. I do not doubt that Dunn-Lawless has replayed the incident in his mind many times, as, no doubt, the applicant has. In doing so, there is every possibility that his recollection of some aspects of what occurred has been distorted or is the product of a false memory. 1998 I am reinforced in my view in this regard by how this aspect of the evidence unfolded in cross-examination. Dunn-Lawless described a belief that he had heard from others that people at the party were talking about bottles having been used.1826 He was unclear who had told him this, or precisely how this information had been communicated to that person. Having regard to all of the evidence, I consider it much more likely that he heard of this accusation in the days after the incident, after the applicant had reported the matter to police. 1999 Dunn-Lawless gave evidence that almost immediately after he struck the applicant, and the applicant was on his haunches, he heard the applicant say words to the effect that he had been bottled. Dunn-Lawless was quite adamant in his recollection that this comment was made and how he and Lloyd had reacted to it at the time. 1825 Exhibit P10. 1826 T 408.9-409.31. -- 365 of 496 -- [2026] SADC 27 360 2000 The applicant denied having made this comment. He was adamant that he was unable to speak immediately after the incident and, amongst other things, said it was ‘an outright lie’ that he had immediately claimed to be bottled, and/or that Dunn-Lawless had immediately refuted this.1827 2001 Ms McCallum had no memory of having heard such a comment being made by the applicant. 2002 There appears to be no purpose to be served in Dunn-Lawless making up the fact of this comment, as if anything, it tends to support, not refute, the applicant’s claim that he was bottled. Further, Dunn-Lawless recalled the accused saying this while he was hunched over, immediately after the incident had come to its natural end, and before anyone had come to his assistance. As such, the comment formed part of Dunn-Lawless’ narrative with respect to the incident itself. 2003 The SA Ambulance Report Form confirms that ambulance personnel were provided with a history by someone, that the applicant had been ‘hit in face with a bottle’ and had ‘consumed 6+ beers tonight’.1828 As the applicant is noted on that form to be alert, and to have also stated that the vision in his right eye was blurred, I consider it likely, and find, that the applicant was able to speak to the paramedics and that it was the applicant who provided this history to them. 2004 This is consistent with the applicant believing he had been struck with a bottle, prior to being admitted to the RAH and while still in the care of paramedics. 2005 I reject the applicant’s evidence that he was unable to speak immediately after the incident, it being inconsistent with the other evidence. However, I have no doubt that he was dazed and confused. It is inherently possible that the applicant did immediately accuse Dunn-Lawless (and/or Lloyd) of having bottled him, as claimed by Dunn-Lawless, while in that state of confusion.1829 2006 The fact that no one else heard this can be explained by the fact that the comment was made almost as soon as the altercation had ended. Ms McCallum described being shocked by what she had seen of the incident, thus explaining why she either did not hear it or can now no longer recall hearing it. None of the other witnesses saw the incident, so may not have been in close enough proximity to have heard any such comment and/or response. The applicant was also bleeding profusely from his nose, which likely impacted on the clarity of his speech at that time, in any event. 2007 As I said, it is unusual for Dunn-Lawless to lie about this. Such a lie does not, on its face, serve any purpose, other than to simply reinforce what is clear from the 1827 T 291.30-292.27; noting that the applicant’s denial of having made this statement appears inextricably linked with his insistence that he was unable to speak at the time as he was incoherent and severely concussed. 1828 Exhibit P12. 1829 See further discussion below. -- 366 of 496 -- [2026] SADC 27 361 Ambulance Report, that is, that shortly after the incident, the applicant was claiming he had been hit with a bottle. It is possible that Dunn-Lawless is mistaken about this, for the same reason as I consider he is mistaken in his recollection about learning, on the night of the party, that there was talk at the party of bottles having been used. However, the fact Dunn-Lawless described the comment as part of the narrative of the incident, something he claimed to have a vivid recollection of, tells against this. 2008 Dunn-Lawless’ account of the incident was the subject of very detailed and careful cross-examination. Indeed, Mr Ower cross-examined Dunn-Lawless for over two and a half hours, across two different days, being almost double the time during which the applicant was cross-examined by the respondents. Notwithstanding this, his evidence as to what occurred during the incident (and immediately before the incident) remained consistent throughout. Of course, this could be because what Dunn-Lawless had told the Court was a very well-practised and rehearsed lie. Alternatively, it could be because he was, essentially, telling the truth as to what occurred. 2009 In considering Dunn-Lawless’ evidence, I am mindful that he and Lloyd left the party shortly after the incident, potentially being evidence consistent with them demonstrating a consciousness of guilt. Dunn-Lawless explained that he wanted to leave to put distance between himself and the applicant and was concerned at the potential for retaliation from the applicant’s friends, having regard to the fact that the applicant was clearly injured. I accept that evidence. Further, the fact that Lloyd and Dunn-Lawless in fact returned to speak to Owen, outside of the party, is inconsistent with the Court drawing such an inference from the fact they had otherwise left the party shortly after the incident. 2010 As outlined, I am satisfied that some aspects of Dunn-Lawless’ evidence are the product of him being mistaken and therefore there are aspects of his account which I cannot accept. As such, I have very carefully considered the evidence given by Dunn-Lawless as to the incident itself, having regard to all of the evidence, when determining whether I can be satisfied such evidence is both honest and reliable. I will outline my findings below. The applicant General observations/summary 2011 I refer to my earlier observations of the applicant’s demeanour and affect during his evidence. 2012 I have carefully considered all of the applicant’s evidence, bearing in mind the circumstances under which that evidence was given, which have already been discussed at length. 2013 My overall impression of the evidence given by the applicant on matters directly related to the incident, was that on many important aspects, that evidence -- 367 of 496 -- [2026] SADC 27 362 was a combination of what he had memorised from having re-read his earlier police statements and/or had come to believe, based on his fixed view that he was almost killed in the incident. 2014 I am satisfied that much of the applicant’s evidence on critical topics was exaggerated. This included his evidence as to how the incident occurred, the nature of the physical injuries he sustained, his recollection of the discussion between Owen and the ‘uninvited guests’, his movements and actions immediately after the incident and the movements and actions of Lloyd and Dunn-Lawless. 2015 Similarly, I am satisfied that the evidence the applicant gave as to the circumstances of the party was exaggerated and designed, either consciously or subconsciously, to paint the hosts of the party, and Owen, in the very poorest light. 2016 The applicant was unwilling to make any concessions when his evidence was identified as being contradicted by other evidence. This was evident both when the applicant was giving evidence about the party and when questioned about his behaviour generally, as a teenager. As to the latter, the applicant demonstrated both a lack of insight into his own behaviour and an ongoing inability to accept accountability for his actions. He consistently blamed others (or other circumstances) for documented instances of his prior poor behaviour during his school years. 2017 I am satisfied that the applicant’s inability to accept accountability for his own actions is something that was evident as early as his junior school days. In this respect, I note what Mr Jehle, from Farrell House at St Peters, wrote about the applicant in an email dated 13 November 2006, to Ms Tiggeman, Psychologist, namely: 1830 ... He plays rugby and has older brothers so he is used to some rough activity ... He has been involved in at least three incidents with boys being injured, two of which he sat detention over. He seems to get into an altercation and responds in a very heavy handed way (overreacting). He pleads innocence claiming the injured party ran into his outstretched fist or foot etc! 2018 In very many aspects, including important aspects, the applicant’s evidence was either not supported by any other evidence or contradicted by other reliable evidence. His evidence was also internally inconsistent on several topics. 2019 I am satisfied from all of the evidence, that the evidence given by the applicant as to the course (and cause) of his illness has been impacted by his fixed view, held since late 2012, that he is suffering from PTSD. This is apparent from a careful review of all of the applicant’s evidence, but by way of an example, from the evidence he gave that he was being treated for PTSD in Broadmoor and that Dr Rowe had diagnosed him with PTSD, neither of which was established on the evidence.1831 This was also apparent from what the applicant told Dr Jasoria on 1830 Exhibit R42 at p 89. 1831 T 1375.18-1376.3. -- 368 of 496 -- [2026] SADC 27 363 7 December 2012 and the way in which he described his illness to both Dr Kutlaca and Prof McFarlane. 2020 Much of this evidence was given in February 2024. I have specific concerns about the reliability of that evidence in any event, as it was given at a time when the applicant appeared demonstrably affected by his medication and/or mental illness. 2021 In addition, the applicant was being asked to recall the precise nature of symptoms suffered by him, and when they arose, after more than 10 years. The passage of time of itself is a factor in terms of reliability. During that period the applicant suffered multiple psychotic episodes, has been highly delusional, and has suffered numerous significant traumas, the most significant of course being the attack on his parents. For much of that period the applicant has been detained, separated from his family and friends, has been forcefully medicated, and, on his account, either witnessed or been involved in numerous violent assaults. 2022 It is inconceivable that the combination of these matters has not had an impact on both the applicant’s ability to correctly recall the progression of any psychiatric symptoms suffered by him in the years since the incident, and the reliability of his evidence, given at trial, insofar as it sought to link such symptoms both in time and character, to the incident. 2023 The very fact that the applicant continued to refer to having nearly been beaten to death in the incident demonstrates the inaccuracy of his evidence. I do not doubt that that the applicant now genuinely believes that to be the case, however other, reliable evidence (ie the Ambulance Report, the RAH records relating to his admission, the reports of Dr Crompton and Prof David) demonstrate that belief to be untrue. 2024 As previously outlined, I disagree with the submission made by the applicant’s solicitors that the applicant’s evidence about critical aspects of the incident was corroborated by what Owen told the police.1832 2025 It was submitted that what may be considered unusual aspects of the applicant’s behaviour or account could be explained by the fact the applicant was recalling what was probably the most traumatic event of his life and was being cross-examined, by one of his assailants. It was submitted that such features did not therefore demand a finding that the applicant was otherwise a dishonest or unreliable witness.1833 2026 Ancillary to this it was submitted that in assessing the applicant’s evidence, the Court should take into account the severe injury sustained by him, which may have caused some matters to ‘possibly become distorted in his mind’, particularly 1832 FDN 327 at [29]. 1833 Ibid at [28]. -- 369 of 496 -- [2026] SADC 27 364 matters which occurred in the aftermath of the incident.1834 However, the applicant’s evidence about very many details of the party, before the incident, simply did not accord with the other evidence. It is not the case that his evidence was cogent, coherent and consistent on matters prior to the incident, and only confused or inconsistent or exaggerated on matters thereafter. These problems were a feature of many aspects of the applicant’s evidence. 2027 Although the applicant’s consumption of alcohol prior to the incident may have impacted the reliability of his evidence of the incident (and its aftermath), it is less likely to be responsible for any anomalies in the applicant’s evidence of events which occurred earlier in the evening, that is, at a time when his blood alcohol concentration would have been lower.1835 2028 I accept, consistent with the evidence of Prof McFarlane and Prof Nielssen, some of these matters may in part, be explained by the impact of the applicant’s mental illness (and/or trauma). 2029 I am mindful of the abovementioned matters and their potential impact on the applicant’s evidence. However, the applicant was the only witness to give evidence on several important matters and as such, his evidence is critical to aspects of this claim. Irrespective of the cause (or causes), the fact is, the applicant was a very poor witness. 2030 Having had the opportunity to carefully assess the applicant’s evidence, acknowledging all of the circumstances in which that evidence was given, I am unable to accept the reliability and/or credibility of the applicant’s evidence, unless that evidence is supported by other reliable and cogent evidence. Reliance on police statements 2031 The applicant consistently referred to either the contents of his police statements, or Owen’s police statement, when giving his evidence about the party and the incident. When he was uncertain in terms of an answer, he directed the Court to his statement. At other times, he was intent on convincing the Court that his evidence was entirely consistent with what he had told the police and that as such, it must be both credible and reliable. 2032 For example, the applicant referred the Court to the contents of either his statement or Owen’s police statement when responding to questions about: • what food he ate at the party;1836 1834 Ibid at [23]. 1835 Having regard to and accepting Prof White’s evidence to this effect; Exhibit R35 at p 4. 1836 T 219.27; T 261.30. -- 370 of 496 -- [2026] SADC 27 365 • the circumstances in which he claimed Owen had tried to kick Lloyd and Dunn-Lawless out of the party;1837 • alleged comments made to him by Lloyd and Dunn-Lawless when he walked past the table, towards the bushes, immediately prior to the incident;1838 • whether and when he saw the adults at the party drinking alcohol;1839 • his estimate of Lloyd’s weight at the time of the party;1840 and • Owen having asked Lloyd and Dunn-Lawless to leave the party.1841 2033 My impression was that many aspects of the applicant’s evidence were in fact based on his memory of what was in these statements, rather than him having an actual recollection of the events. Internal inconsistencies in the evidence 2034 There were internal inconsistencies in the evidence given by the applicant on relevant matters. 2035 During his evidence-in-chief, the applicant was asked if he had seen Owen speak to his parents at any stage about the fact Lloyd (and Dunn-Lawless) were at the party. In response, he said that Owen’s mother had ‘come out’ when Owen was ‘confronting’ Lloyd and Dunn-Lawless about their attendance at the party.1842 The only possible way this evidence can be interpreted is that the applicant saw (and heard) Ms Dansie come outside at that time. 2036 Shortly thereafter, the applicant was asked whether he observed any of the five adults who he had previously seen inside the house in the kitchen, drinking alcohol, in any location other than the kitchen. His response was:1843 The mother came out once to talk about beer bottles not being dropped in the pool, and that was the only time they came out. 2037 This is clearly inconsistent with that earlier evidence. Aware of this inconsistency, counsel for the applicant then questioned the applicant as follows:1844 1837 T 222.10. 1838 T 230.21; T 270.14-24. 1839 T 279.26-27; T 280.3. 1840 T 285.32-33. 1841 T 287.38-288.3. 1842 T 225.3. 1843 T 226.27-29. 1844 T 226.32-227.5. -- 371 of 496 -- [2026] SADC 27 366 Q. So you mentioned this one time she came out to talk about beer bottles in the pool, and you also mentioned that she came out to speak about the people who were not welcome. Are those the only two times you remember her coming out. A. I don't think she spoke about it. I think she was sort of like, you know, yeah, I don't think she spoke about it, there was no speech, there was nothing. I mean like, you know, she just sort of agreed with the girls that they could stay and it wasn't really a problem ... Q. The conversation between Owen, Dechlan, yourself, Jack, Patrick and Owen's mother, where did that take place. 2038 When describing how the incident unfolded, the applicant described being pushed into the fence by Lloyd and Dunn-Lawless when he was urinating. He said Lloyd then hit him in the nose with a champagne bottle. He went on to say:1845 I got up as he was over me, as I was unconscious, because he was about to hit me again. I ran up to him and tried to wrestle ... and Patrick Dunn-Lawless proceeded to attack me with his left hand using a beer bottle to my face. All the injuries consistently were to my face. 2039 The only reasonable interpretation of this evidence is that after Lloyd hit the applicant with the champagne bottle, the applicant was knocked to the ground and rendered unconscious.1846 However, he was then able to get up and run towards Lloyd to try to wrestle him. It was then that Dunn-Lawless hit him in the face with a beer bottle. The applicant’s evidence that he was knocked unconscious, but then able to get up and run towards Lloyd and wrestle him, is both internally inconsistent and inherently implausible. 2040 During cross-examination, the applicant gave evidence that upon his arrival at the party, he went inside the house to introduce himself to Owen’s parents. He then gave the following evidence:1847 Q. So, can I suggest that you did not go back into the house again after you first introduced yourself to Owen's parents. A. I can't recollect that. Q. Do you have any recollection at all of being in the house on more than one occasion that night. A. I can't recollect that, no. 2041 Shortly thereafter, when cross-examined as to his alleged observations of seeing girls throwing up in the bathroom, he gave the following evidence:1848 1845 T 230.33-38. 1846 Particularly when read with the applicant’s later evidence at T 233.6-9, namely his description of falling to the ground when he was hit in the nose with the champagne bottle by Lloyd, which smashed his nose, and broke the bottle. 1847 T 261.1-7. 1848 T 269.9-26. -- 372 of 496 -- [2026] SADC 27 367 Q. Did you go into the bathroom in the house at all during the night. A. No. Q. So you didn't see any girls in there throwing up, I suggest. A. I did go in the lounge to speak to Owen Stankiewicz's sister with Owen and I did see girls throwing up in the bathroom and using the toilets. Q. Did you see into the toilets, how did you know they were throwing up. A. You could hear it. Q. Where was the bathroom. A. Next to the kitchen. Q. And were you in the loungeroom or the kitchen. A. Pretty close to the kitchen. Q. Is that the only other time you went into the house. A. I can't answer that, I was in the house twice, maybe three times, that's all I can give you. 2042 Having observed the applicant give this evidence, it was my impression that he realised that his earlier evidence, namely that he had only been inside the house once, at the start of the party, simply did ‘not fit’ with his claimed observation of the girls throwing up inside (presumably, later in the evening). In my view, the applicant’s subsequent evidence, of in fact having gone inside two or three times, was tailored to ensure there was a factual foundation for his narrative of seeing the girls, inside the house, throwing up. 2043 No one, other than the applicant gave evidence of seeing or hearing anyone throw up (either inside or outside) or of anyone behaving or appearing overly intoxicated.1849 I am satisfied that the applicant’s evidence on this topic – that is, his evidence that people were throwing up at the party – both inside and outside - is neither credible nor reliable. I reject that evidence. Inconsistencies with other evidence 2044 As stated, the applicant is obviously a very intelligent young man, from a high achieving family. He had the benefit of the best possible education, with remedial assistance and other supports. The applicant and his parents remained fixated on the fact that he had successfully completed Year 12, as demonstrating that any behavioural difficulties he experienced before the incident were modest and no different to other boys his age. 1849 Noting Ms McCallum did give evidence that she made observations of the applicant consistent with him being intoxicated. -- 373 of 496 -- [2026] SADC 27 368 2045 I am satisfied that from a very early age, the applicant had difficulty controlling his aggression. Indeed, this was the reason why the school suggested to Mr and Mrs Chattaway that the applicant see Mr Robinson. I do not doubt that the applicant was bullied when he first arrived at St Peter’s. However, it is apparent from the various school records and the materials from Mr Robinson, that the applicant’s aggressive response to that bullying was a significant concern. 2046 The applicant gave evidence about the incident that occurred when he filled in for the 9B AFL side in a game against Blackfriars. His evidence was that he was punched in the face by an opposition player. He said, “I think there was some pushing involved and I was the one who was dealt with severely’.1850 He denied hitting any other player. 2047 This evidence is at odds with what Mr Geraghty, the PE teacher, wrote in an email dated 20 August 2007, wherein he described the applicant as being the instigator of an on-field fight. He stated, ‘From the very first bounce it was clear that [the applicant’s] main intention was to start a fight ... He began pushing other players and eventually a boy pushed back and Nick started swinging. ...’1851 2048 I acknowledge that the applicant was being asked to recall an incident from many years ago. However, his refusal to accept any responsibility for that incident, or accountability for his role in that incident, is of concern. 2049 The applicant’s perception of what role he played in this and other documented incidents which occurred at school and involved him reportedly acting aggressively, is consistent with that of his parents. The letter written by Mrs Chattaway to the school after the applicant received a detention for his role in the fight in the 9B AFL game, outlined her view that the applicant had been unfairly blamed for something for which he (and they) considered someone else to be responsible, notwithstanding the teacher’s observations to the contrary.1852 2050 The applicant was not willing to accept that he had struggled academically throughout his school years, instead being fixated on his successful completion of Year 12. 2051 The applicant gave evidence that he had no difficulties with his studies at all during Year 12, notwithstanding what Dr Lamb wrote in a letter to Dr Angas dated 19 June 2010, namely:1853 Nicholas is now in Year 12 but is struggling. The special needs teacher assists him, but the difficulty of the work itself might be slightly beyond his abilities … 2052 The applicant gave evidence that in Year 12 he got ‘top marks’ for English (19.5) and an ATAR of 83. The applicant’s South Australian Certificate of 1850 T 1310.19-26. 1851 Exhibit R42 at p 93. 1852 Exhibit R42 at pp 94-95. 1853 Ibid at p 909. -- 374 of 496 -- [2026] SADC 27 369 Education confirms he achieved an ATAR of 77.4, with his mark for English Communications being a raw score of 18, equating to a TER score of 16.5.1854 2053 Although the inconsistency in this evidence, with the documentary evidence, considered in isolation, appears relatively insignificant, the applicant’s evidence on this topic was indicative of his evidence in general. That is, it exaggerated his achievements and understated (or attempted to explain away) the difficulties he had experienced prior to the incident. Mr and Mrs Chattaway’s evidence is replete with similar examples. 2054 The applicant’s evidence as to how he injured his hand in May 2009 was at odds with that given by his mother, and apparently at odds with what was recorded in the WCH notes (which were tendered as a business record). That is, the applicant gave evidence that he had been talking to one of his brothers about sport when he lent on the window, lost his footing and his hand had gone through the window.1855 Mrs Chattaway gave evidence the incident occurred when William and the applicant were running through the house and the applicant slipped and put his hand through a pane of glass in an internal door. They both denied the injury had occurred in the context of an argument between the applicant and his brothers. 2055 However, the WCH notes record this injury as having occurred when the applicant, ‘hit window after argument with brothers’.1856 While the note does not state that the applicant ‘punched’ the window, the note clearly refers to an argument with his brothers as having preceded the incident, contrary to both the applicant’s evidence and that of Mrs Chattaway. 2056 The applicant’s evidence relating to the party was inconsistent in many significant ways from the other evidence. 2057 The applicant gave evidence that he arrived at the party between 4:00pm and 5:00pm, at which time there were around 40 to 50 people in attendance. 2058 This is contrary to what Owen said in his statement (that is, that the party started at 4:00pm, and that there were roughly 20 people there until about 7:00pm, by which time there were around 50 to 60 people), Mr Allan’s evidence (that when he arrived between 4:30pm and 5:00pm there were only about five to 10 young people in attendance, congregated under the pool shelter) and the evidence of Mr Heames and Mr Eckert, who both estimated the party numbers never exceeded 30. 2059 The start time for the party was 4:00pm. Having regard to all of the evidence, it is inherently unlikely that there were 40 to 50 people already in attendance when the applicant arrived. 1854 Exhibit P52 at p 28. 1855 T 1318.36-1319.14. 1856 Exhibit R42 at p 186. -- 375 of 496 -- [2026] SADC 27 370 2060 While this may seem like a minor point, again, this was indicative of the overall tenor of the applicant’s evidence, that is, it was exaggerated and couched in terms designed to present a version of events unfavourable to and damning of the respondents. An example of this is the applicant’s response when asked the age of the guests at the party, that is, ‘underage, 17-year-olds’. Although I do not doubt that some of the guests were underage, including the applicant, this was an 18th birthday party. It is self-evident that some, probably many, of the young guests were aged 18 or over. 2061 The applicant was adamant that the third and fourth respondents supplied alcohol for the consumption of partygoers, including wine, beer and vodka. No other witness gave such evidence. The invitation itself expressed the party to be ‘BYO’. The applicant acknowledged he brought his own six pack of beer to the party. 2062 The applicant gave evidence that girls were vomiting in the bathroom and others were vomiting outside. As stated, I reject that evidence, there being no other evidence to this effect, nor any evidence to suggest any overtly drunken behaviour by any guests. On this note, the applicant gave evidence that he thought there was one toilet inside the house. I am satisfied from all of the evidence that there were two such toilets. There was simply no evidence that the applicant ever went into either of those two toilets, noting he claimed the boys were not welcome in those toilets, which were set up for the girls, and that there were no toilet arrangements for the boys, forcing them to use the bushes at the fence as urinals.1857 2063 Similarly, the applicant gave very self-serving evidence that the adults at the party, who were meant to be supervising the young guests, were themselves drinking significant quantities of alcohol. I reject that evidence, again there being no evidence to support it and reliable evidence to the contrary. 2064 The applicant acknowledged he spent most of the night outside in the pool. He said he went inside at the start of the party to say hello to Owen’s parents. I accept that he may have seen the adults with glasses of white wine, at that time, this being consistent with Ms Dansie’s evidence. If the applicant went inside at another time to say hello to Eleanor, as he claimed, I am satisfied that this must have been early in the party, as I accept the evidence given by both Eleanor and Marcel that they did not stay for long and left as they had other plans. He was not going inside to use the toilet. I am satisfied that there was simply no opportunity for the applicant to have made any observations to the effect that the adults at the party were ‘probably drinking more than the kids’ and drinking ‘a significant amount of wine.’ He could not have properly seen what was happening inside the house, from the pool. Further he acknowledged, ‘I wasn’t particularly looking at the house’.1858 1857 T 226.3-20. 1858 T 278.4. -- 376 of 496 -- [2026] SADC 27 371 2065 As previously outlined in some detail, the applicant’s evidence as to what transpired during the discussion between Owen and Lloyd and Dunn-Lawless, about whether they had been invited and/or could stay at the party, was at odds with all of the other evidence on this topic. 2066 The applicant was quite adamant that this was a hostile conversation, during which Lloyd and Dunn-Lawless had offered to fight him and Mr Heames. He said they had been threatening towards both him and Owen and called him a pussy for not throwing them out of the party. The inference from his evidence was that Ms Dansie was present for some of this discussion. 2067 I will deal with the latter aspect of this evidence first. Ms Dansie denied being present during this conversation. Owen made no reference, in either his police statement or his evidence, to Ms Dansie being present at any time during this discussion. There was no evidence, other than that given by the applicant, to suggest Ms Dansie witnessed any part of the discussion. 2068 Owen gave evidence wherein he denied that either Lloyd or Dunn-Lawless were verbally or physically aggressive to him during that conversation. There is nothing in Owen’s police statement to suggest any threats were made by them or that their behaviour was at all threatening during this discussion. Perhaps more importantly, although Mr Heames had a recollection of having overheard conversations to the effect that there were people at the party who had not been invited, he gave no evidence of being a party to any discussion involving threats made or directed towards him and/or the applicant. Indeed, it was Mr Heames’ evidence that he was shocked to hear about the incident as there was no feeling of tension at all with the group he was with, nor were there any problems at the party that he could think of. 2069 Mr Heames’ evidence on this topic is important. I am satisfied he was part of the discussion, as both Owen and the applicant described him being there. While Mr Heames had only a limited recollection of the party, given the events which ultimately transpired, if he had been part of a hostile discussion between Owen, the applicant, Lloyd and Dunn-Lawless earlier in the evening, I am satisfied this is not something about which he would no longer have any memory. 2070 Further, the applicant agreed in cross-examination with a proposition put to him that during this discussion, Lloyd said he was not there to cause trouble and had apologised for his past behaviour to Owen. The applicant agreed that after the discussion, he thought any issue between Owen and Lloyd had been resolved. There was no dispute that thereafter Lloyd and Dunn-Lawless remained at the party. There was no evidence from any witness, other than the applicant, that thereafter either Lloyd and/or Dunn-Lawless engaged in any behaviour which demonstrated there to be any ongoing ill feeling arising from the earlier discussion (or at all). -- 377 of 496 -- [2026] SADC 27 372 2071 I do not accept the applicant’s evidence that during this discussion, Lloyd and/or Dunn-Lawless threatened to fight him and Mr Heames, that they were threatening towards him and Owen and/or that the discussion was hostile, it being unsupported by any other evidence. 2072 The applicant gave evidence that the ‘duration of the assault’ was some five to eight minutes. This was obviously at considerable odds with what Dunn- Lawless and Ms McCallum described. But even disregarding the latter evidence, having regard to the size of the backyard, and the applicant’s evidence the incident occurred, at least in part, at H4 on the grid, it is simply inconceivable that a sustained assault lasting for minutes, rather than seconds, involving either the use of fists or bottles, would not have become apparent to multiple partygoers, prompting intervention. I cannot accept the applicant’s evidence on this topic, which, along with many aspects of his evidence, was exaggerated by him (either consciously or sub-consciously). 2073 The applicant gave evidence that after the incident, he crawled through the garage, bleeding and losing consciousness. He said no one came to help him, until Mr Heames picked him up and helped him to a chair. As previously stated, Mr Heames described becoming aware of the incident when he saw the applicant walking or staggering from the grassed area near the pool, towards the bricked area near the undercover pergola. If the applicant had been crawling along the ground, bleeding profusely, before Mr Heames came to assist him, I am confident this is something Mr Heames would remember. 2074 I do not doubt that in the moments after the incident the applicant was likely in somewhat of a state of shock. He had suffered a significant facial injury. He was bleeding heavily from the nose and was likely confused and/or concussed. Although it is possible the applicant lost consciousness momentarily at some point in time, the evidence of those who attended to the applicant in the immediate aftermath of the incident was all to the effect that he was responsive and reacting to them. He was certainly not unconscious or seemingly unable to understand the instructions of Mr Allan (to lean forward not back when sitting on the chair). Mr Heames recalled the applicant speaking when he was on the chair, albeit he described him as ‘bewildered’. 2075 Further, it is inherently unlikely that no one at the party would have come to the applicant’s assistance immediately if he was, in fact crawling on the ground, bleeding profusely. As I will discuss in more detail later, the premises were on a 696 sq/m block. The house and pool area occupied a large part of that block. The backyard itself was only of a moderate size. I am satisfied from all of the evidence that at the time of the incident, many of the young partygoers were congregated under the pergola and/or near the table on the lawn. I consider it implausible that the applicant could have crawled along the ground (and certainly not through the garage, or even on any bricked surface having regard to the layout of the backyard) without anyone immediately seeing him and helping him to his feet. -- 378 of 496 -- [2026] SADC 27 373 2076 I reject the applicant’s evidence that after the incident he ‘crawled through the garage, bleeding, losing consciousness, in and out of consciousness’.1859 2077 The applicant gave evidence that Dunn-Lawless was holding a long neck beer bottle in his left hand when he hit him in the face with it. This is apparently inconsistent with Dunn-Lawless’ unchallenged evidence that he was right-handed, evidence which I accept. 2078 When giving evidence about his mental health and symptoms generally, there were several inconsistencies in the applicant’s evidence and the hospital records. For example, the applicant denied ever having experienced auditory hallucinations but then said if he had, it was subsequent to having taken medication.1860 The Broadmoor Hospital records contain numerous references to the applicant apparently experiencing auditory hallucinations. Inconsistencies with out of court statements 2079 Counsel for the applicant submitted that the applicant’s evidence should be accepted as it had been clear and consistent over time as to the key narrative, namely that a bottle or bottles had been used as weapons against him during the incident. Specific reference was made to the history as recorded by ambulance personnel and those in RAH Emergency, that the applicant had been hit in the face with a bottle. 2080 In the SA Ambulance Patient Report Form, tendered as a business record, the history of the applicant’s presenting complaint was recorded as, ‘Hit in face with bottle’.1861 For reasons previously explained, I am satisfied that the applicant gave that history to ambulance personnel, sometime after their arrival at the property (11:03pm) and when he was transferred to the care of the RAH Emergency Department at around 11:27pm. 2081 However, I agree with the submission made by the second respondent that it would not be appropriate for the Court to use evidence of prior consistent statements to bolster the applicant’s account given at trial, or to ‘enhance’ his overall reliability or credibility. That approach urges the use of evidence of what was said on an earlier occasion as being evidence of the truth if what was said, rather than simply evidence that it was said.1862 2082 There were very many documents tendered by the parties which contained purported histories apparently provided by the applicant, outlining the circumstances of the incident, and of his personal circumstances (including alleged prior drug use) many of which were, on their face, inconsistent (or partially inconsistent) with the evidence given by the applicant. 1859 T 237.4-7. 1860 T 1353.18-19. 1861 Exhibit P12. 1862 FDN 334 at [3]. -- 379 of 496 -- [2026] SADC 27 374 2083 Many of those documents were, in fact, tendered by the applicant and their authors called by the applicant to give evidence. Those authors were not challenged as to whether, in fact the applicant had said many of the things they had attributed to him. In the case of Prof McFarlane, he gave evidence that the history he had recorded was effectively a transcript of what the applicant told him. He was not challenged on this. 2084 Dr Kutlaca used quotation marks when restating the applicant’s history in his reports, consistent with what was recorded therein as representing the words used by the applicant. 2085 There were many documents tendered by the respondent under s 53 of the Evidence Act as business records, which contained prior statements, apparently attributable to the applicant, which were inconsistent with his evidence. In many instances, the authors of those records were not called to give evidence. It was submitted that insofar as the applicant had not admitted to making a prior out of court statement, and without oral evidence being called to establish the statement had been made, there was no evidence of that statement.1863 I disagree with that proposition. 2086 Pursuant to s 53(1)(b) of the Act, records admitted pursuant to s 53 are evidence of a fact stated in the record, or any fact that may be inferred from the record (whether the inference arises wholly from the matter contained in the record, or from the matter in conjunction with other evidence). 2087 In other words, insofar as those documents purport to contain a history of events, as attributable to the applicant, they are evidence of the fact that the applicant did give such a history. They are not evidence of the truth of any such history. 2088 However, I am mindful that the applicant was not questioned in accordance with s 28 of the Evidence Act with respect to many of these prior inconsistent statements. 2089 As outlined in R v Trabolsi,1864 s 28 of the Evidence Act requires that the circumstances of the former statement ‘sufficient to designate the particular occasion’ be put to the witness, and the witness must be asked whether or not he or she made the statement. Provided the other requirements of s 28 are met, if the witness then declines to ‘distinctly admit’ that they made the statement, the cross- examining party may independently prove the making of a prior inconsistent statement by that witness. 2090 The Act therefore requires that a witness be given a fair opportunity to admit or deny the making of the purported prior statement. 1863 FDN 327 at [27]. 1864 (2018) 131 SASR 297, [154] (Doyle J), cf [87] (Blue J). -- 380 of 496 -- [2026] SADC 27 375 2091 Precisely how s 28 and s 53 of the Act interact was not the subject of submissions. It is certainly arguable that once a document is admitted under s 53, s 28 serves no additional purpose. However, out of fairness to the applicant, I have only used proven prior inconsistent statements to assess his reliability and credibility insofar as there was compliance by the cross-examining party with s 28. If I am wrong in that approach, then this would have resulted in me having even more doubt as to the reliability of the applicant’s evidence, in circumstances where, from as soon as two days after the incident, his version of events had apparently changed significantly in terms of the number of blows exchanged (and specifically the number of times he was purportedly hit in the face with a bottle).1865 2092 One such example relates to what was apparently said by the applicant to Prof David. In Prof David’s first letter to Mr Pipinias dated 12 April 2011, admitted as a business record, he recorded the applicant as providing a history to him on 8 December 2010 (that is, the day after the incident), that: 1866 ... he tried to get [Lloyd and Dunn-Lawless] to leave on behalf of the hostess. He then went to pass urine behind a bush and one of these people hit him with a bottle, he hit back but lost consciousness temporarily, He remembers being hit again by a big beer bottle but cannot remember anything else. 2093 Prof David repeated that history in almost identical terms in his second letter to Mr Pipinias of the same date. In his later statement, Prof David described that as the account the applicant had given to him. 2094 The applicant was cross-examined about what he had apparently told Prof David about the circumstances of the incident. He gave the following evidence:1867 Q. Do you remember being treated by Dr David David or Professor David David. A. Yes. Q. Do you remember telling him how you got your injuries. A. I told him I was hit with a champagne bottle in Jack Lloyd's right hand and that Patrick Dunn-Lawless hit me with a longneck beer bottle with his left hand. Q. And you told Professor David David that there were only those two hits. A. No, I never stated that. Q. You told Professor David that you were hit twice in the face, once with a champagne bottle - A. That's hearsay. That is hearsay. 1865 See applicant’s account recorded by police in the police report made on 7 December 2010, Exhibit P10, which includes a reference to a least five blows to the face with a bottle. 1866 Exhibit R20 at p 1; see my earlier observations and findings at [1706] herein. 1867 T 277.20-34. -- 381 of 496 -- [2026] SADC 27 376 Q. Do you disagree with that. A. Absolutely. 2095 I am satisfied that what Prof David recorded as outlined at paragraph 773 herein was, in fact, what the applicant told him on 8 December 2010 as to what he could recall of the circumstances of the incident. 2096 That history is inconsistent with the applicant’s evidence insofar as the applicant told Prof David that he recalled being hit two times by a bottle but could not remember anything else. This is something I have taken into account when assessing the overall reliability and credibility of the applicant’s evidence. 2097 The applicant denied any prior history of cannabis use. In notes made by Dr Symon of the RAH on 17 October 2012, the applicant is recorded as having given a history of past THC use.1868 The applicant was cross-examined in accordance with s 28 of the Act as to this apparent prior inconsistent statement. He categorically denied the truth of this history. 2098 I am satisfied that the applicant did tell Dr Symon: • that he had previously used cannabis; • that he had last used cannabis about three to four months earlier (ie mid 2012); • that he had consumed cannabis from when he was aged 16 to 18; • that when using cannabis he had consumed up to an ounce a week, sometimes using it up to 10 times per day; and • he had not used any other illicit drugs. 2099 The applicant claimed he had been ‘lured’ into saying these things by the doctor at a time when he was psychotic. He claimed he could not have afforded to buy cannabis at that time as he could not even afford to buy cigarettes. 2100 I accept that the applicant was psychotic at the time he gave this history to Dr Symon, it being two days after his first admission to the RAH for psychosis. As such it is certainly possible that the history he gave was inaccurate and the product of a psychotic delusion. 2101 There were many other similar prior out of court statements about cannabis use, apparently attributable to the applicant – however, he was not cross-examined about them in accordance with s 28. 1868 See discussion at [212]-[213] herein. -- 382 of 496 -- [2026] SADC 27 377 2102 I have ultimately determined that there is insufficient reliable evidence for me to make a positive finding that the applicant did, in fact, use cannabis between the ages of 16 and 18, and in particular in the quantities and with the frequency apparently reported to Dr Symon. As such, I cannot positively find that any such prior statement was inconsistent with the evidence the applicant gave on this topic. 2103 I am certainly suspicious that what the applicant told Dr Symon about his prior use of cannabis was the truth. I note Owen’s evidence which recounted the applicant’s consumption of cannabis at social events before the party. I note the absence of other witnesses (Terry Wilkison, Courtney Barner, Will Allen) who could have been called by the applicant to refute the suggestion he was a previous cannabis user but were not. 2104 The applicant’s evidence demonstrated a degree of familiarity both with the use of cannabis (that is, the quantities involved and what may be a lot or a little) and its cost. Hospital staff smelt cannabis in the applicant’s room on 5 November 2012 and at times he refused to undergo urinalysis. This evidence strongly supports a finding that by the time of the applicant’s first admission to the RAH for psychosis, he was using cannabis. His familiarity with cannabis could be because he used it at this time (rather than when he was 16 to 18). 2105 As will be outlined hereunder, by late 2012, the applicant’s psychiatric illness had progressed such that those treating him thought it likely he had schizophrenia (albeit a formal diagnosis of such illness could not be made as the relevant symptoms had not persisted for six months). 2106 Again, although I suspect the applicant was using cannabis during late 2012, I am unable to make a positive finding to this effect. Even if he was, it is likely of little relevance to the facts in issue (other than being relevant to my assessment of his reliability and credibility as a witness), given the progression of his illness at that time. 2107 There were many other examples of apparently inconsistent (or partially inconsistent) prior statements, attributable to the applicant, but for which there was no formal compliance with s 28. These include statements apparently made by him shortly after the incident to RAH personnel, 1869 Dr Grave1870 and to the police when he initially reported the incident to them on 7 December 2010. 1871 2108 The applicant was not cross-examined in accordance with s 28 with respect to multiple apparent inconsistencies in his evidence and prior statements apparently made by him when he gave various histories to Dr Rowe, Dr Kutlaca, Prof McFarlane and Prof Nielssen. Those apparent inconsistencies relate both to 1869 Exhibit R42 at p 278. 1870 Exhibit R33 at p 3. 1871 Exhibit P10. -- 383 of 496 -- [2026] SADC 27 378 the circumstances of the incident and the nature, development and progression of the applicant’s symptoms thereafter. 2109 Of course, the fact that the applicant may have provided a history to a doctor, which is at odds with his evidence on the same topic, or with other proven evidence, has other implications, insofar as it undermines the assumptions made by that doctor and therefore the very basis of that doctor’s opinion. Inconsistencies – possible explanations 2110 It was submitted that in the immediate aftermath of the incident, the applicant’s ability to accurately recount what had occurred to him was likely impacted by the fact that he had just been the victim of the incident and sustained significant facial fractures. I agree that this may well have impacted the accuracy of any account given by him to both ambulance personnel and those in RAH Emergency. However, I disagree that this can account for any further changes in his version of the incident in the years thereafter. 2111 I consider it likely that, consistent with Prof White’s evidence, at the time of the incident, the applicant’s level of intoxication was such that he had difficulty perceiving objects or events around him that might have been obvious to others. His cognitive functioning was likely impaired, resulting in errors of both judgment and decision making. 2112 I am satisfied that the applicant’s level of intoxication was such that, at the time of the incident, he had difficulty properly discerning what was, in fact, going on around him. As such, I consider it likely that the applicant’s intoxication has impacted on the reliability of his evidence as to precisely what occurred during the incident. 2113 I am further satisfied that over time, the applicant’s recollection of the incident has been impacted by his psychosis, insofar as he is now firmly of the view that he almost died in the incident. I am satisfied and find that although the applicant now genuinely believes he was hit over the face by a bottle or bottles more than five times during the incident, rendering him unconscious and near death, that he is mistaken in that recollection. Expert evidence – consistency/inconsistency 2114 At trial, the applicant was reluctant to state how many times he claimed to have been struck by bottles during the incident. 2115 Some slight variation, over time, in the applicant’s description of the number of such strikes (or indeed the narrative of how the incident unfolded) may be expected, given the incident occurred so many years ago and the considerable trauma the applicant has experienced since the incident. 2116 However, my impression of the applicant’s evidence on this topic was that it was tailored to ensure that the evidence remained consistent with the expert -- 384 of 496 -- [2026] SADC 27 379 evidence as to the mechanics of his injuries. The evidence in question was given in-chief, namely:1872 Q. Are you able to say how many times you were hit. A. Well the statement from Dr Pennington ... my statement I'd been hit multiple times consistent with the injuries, so I don't want to state how many times I was hit because I don't want to put to ... that I'm exaggerating the kind of injuries that I sustained. Q. If you just focus on the question for a moment. Are you able to say how many times you were hit or not. A. I can tell you it was probably more than five times. I don't really feel like answering the question because it's kind of personal cos I almost died. 2117 I agree with the submission made by the second respondent that this demonstrated that the applicant was willing to withhold information from the Court insofar as he perceived that such information may be unfavourable to him. This evidence related to one of the key issues in dispute at trial. The applicant is a very intelligent young man. I am satisfied that the applicant was tailoring his evidence to ensure that it fit with what he knew was A/Prof Pennington’s opinion as to how the injuries were likely sustained. 2118 A/Prof Pennington was asked to comment on Prof David’s opinion that if the applicant had been hit ‘no more than four of five times about the face with a bottle’ he would have expected the applicant to have suffered significantly more severe injuries.1873 2119 A/Prof Pennington opined that if the applicant had used his arms to try to protect himself from the blows, that would have reduced the degree of force from such blows. In those circumstances, he did not agree with Prof David’s opinion that he would have expected to see more severe injuries. 2120 The applicant gave evidence that he had put his arms up to block the blows. He described being unable to hold his arms up anymore as they were so badly damaged. He had been hit in the face so many times he had lost count. 2121 The difficulty with this evidence is that there is no reference in the SA Ambulance Patient Report Form to the applicant presenting with any injuries to his arms or any complaint about his arms. Further, there is no reference in any of the RAH notes relating to the applicant’s admission thereafter the incident, to him complaining about arm pain or as presenting with any injuries to his arms. 2122 The police took photographs of the applicant on 7 December 2010. Those photographs depict the applicant with two black eyes and some dried blood inside 1872 T 232.13-23. 1873 Exhibit R22 at [7]. -- 385 of 496 -- [2026] SADC 27 380 his right nostril.1874 Relevantly, there are no photographs of any other part of the applicant’s body, such as his arms, demonstrating any cuts or bruising. 2123 The applicant described being struck by both a champagne-type bottle and a long neck beer bottle. 2124 A/Prof Pennington’s opinion is that the applicant’s injuries to the right side of his face were likely caused by a full or half full bottle. If the applicant raised his arms in front of his face to protect himself, as he claimed (and demonstrated) in his evidence, such that he fended off multiple blows from a bottle, either empty, half full or full, it is inherently unlikely that he would not have sustained some type of injury to his arms and/or hands. At the very least, one would expect the applicant to have suffered some bruising, which would have been visible by the time the photographs were taken by police on the afternoon of 7 December 2010. 2125 The applicant’s evidence that he fended off blows with his arms, which were badly damaged during the incident, is inconsistent with all of the available medical evidence. In those circumstances, I cannot accept that evidence. 2126 The applicant’s evidence that he was hit in the face with a bottle at least five times is inconsistent with the evidence of Prof David that this would have resulted in significantly more severe injuries. I accept Prof David’s evidence, noting his unique position as the treating surgeon and his particular expertise in the treatment of facial injuries. As such, I cannot accept the applicant’s evidence that he was struck in the face with a bottle or bottles at least five times. 2127 The applicant denied consuming any alcohol prior to arriving at the party and claimed to have only drunk the six beers he brought with him, while at the party. I accept Prof White’s opinion that the applicant’s likely blood alcohol content of 0.145%gms is consistent with the consumption of approximately 13.6 standard drinks between 6:00pm and 10:30pm (that is, in the four hours prior to the incident). 2128 The applicant gave evidence he arrived at the party between 4:00pm and 5:00pm. On the assumption that estimate is accurate, in all likelihood he started drinking earlier than 6:00pm. However, as alcohol is eliminated from the body over time, even if the applicant started drinking as early as 4:00pm, his claimed consumption of only six beers, simply does not accord with the expert evidence. 2129 There is a curious reference in the Police Incident Report as follows:1875 Victim Consumed Alcohol prior to the incident: YES, DID CONSUME ALCOHOL 1874 Exhibit P14 (see also photographs in Exhibit R42 at pp 946-952. Although there was no evidence as to when these photographs were taken, it is likely they were taken at the same time as the photographs attached to Exhibit P14). 1875 Exhibit P10 at p 2. -- 386 of 496 -- [2026] SADC 27 381 Level of intoxication assessed at contact time: MODE, MODERATELY AFFECTED Place where Victim had Last Drink: PRES, PRIVATE RESIDENCE (my emphasis) 2130 I am satisfied that if the applicant only drank six beers at the party, then his evidence that he did not consume any alcohol before arriving at the party is inaccurate. He must have drunk alcohol prior to arriving, for example, at a ‘pre- party’ event, colloquially known as ‘Pres’. This may account for the above reference in the Police Incident Report. Alternatively, if the applicant only drank alcohol at the party, he must have drunk considerably more than the six beers as he claimed. 2131 When the applicant was asked to account for his blood alcohol reading, his response was:1876 Maybe I drank the alcohol over a short period of time before the assault. 2132 While I do not expect the applicant to recall precisely what he drank and when, this evidence was given after he had said that he had started drinking beer when he arrived at the party and had consumed six beers during the time he was there. I am satisfied that this subsequent evidence was tailored having regard to the evidence given by Prof White, noting that Prof White assumed a pattern of consistent drinking throughout the night. In other words, I am satisfied that this subsequent evidence was given by the applicant to attempt to make his evidence fit favourably with the objective and expert evidence given on this topic. Summary 2133 A careful assessment of the applicant’s evidence, both as to liability and medical causation, demonstrates that, on many aspects, his evidence was neither credible nor reliable. 2134 This further reinforces why I am unable to accept the applicant’s evidence, unless it is supported by other reliable evidence which I do accept. Findings of fact - Liability Standard of proof 2135 The correct standard of proof which applies in this matter is the civil standard, namely on the balance of probabilities. 2136 In making various findings of fact, I must be satisfied that such facts have been proved by the party asserting the existence of that disputed fact, to the requisite standard. However, I must be ‘actually persuaded’ that the asserted fact exists. As outlined by Dixon CJ in Jones v Dunkel,1877 ‘the facts proved must form 1876 T 264.18-19. 1877 (1959) 101 CLR 298 at [305]. -- 387 of 496 -- [2026] SADC 27 382 a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may be reasonably satisfied.’ 2137 It is not appropriate for the Court to approach this task by merely making a statistical comparison as to the probability of a fact, independent of it holding a reasonable satisfaction of the relevant fact.1878 2138 In this case, the applicant urges a finding that he was the victim of an essentially unprovoked attack,1879 committed by more than one person, using bottles as weapons. The allegations made against the first and second respondents are serious allegations, that is, that by their actions, they committed, at the very least, the criminal offence of aggravated assault causing harm,1880 and potentially the even graver offence of aggravated causing harm with the intent to cause harm.1881 2139 The gravity of the consequences of such a finding is readily apparent. While neither respondent is facing a criminal prosecution, a positive finding that they engaged in such gratuitously violent conduct would necessarily impact significantly on their personal and professional reputations, in circumstances where both are still relatively young men. In the case of the second respondent, he is yet to properly embark on his chosen career, as he completes his studies. Notwithstanding the incident occurred some 15 years ago, the stigma associated with such a finding cannot be under-estimated. 2140 The second respondent submitted that there were also ramifications for Ms McCallum if the Court made findings consistent with the narrative as urged by the applicant. I agree with that submission. 2141 Ms McCallum was adamant about what she saw of the incident. While it is true she was equally adamant about certain peripheral matters and may be mistaken about them, I disagree that the same can be said as to her recollection of the incident. Either she saw the incident unfold or she did not. If she did not see the incident unfold, she must be lying about the fact that she did. I am satisfied she cannot be mistaken about that. 2142 Further, the very fact Ms McCallum described the incident as unfolding right in front of her and of having clearly seen Dunn-Lawless strike the applicant with his fist and not a bottle, must either be the truth – as that is what she in fact saw – or a lie to protect her friend. Having regard to her description of what she saw and 1878 NOM v Director of Public Prosecutions (2012) 38 VR 618 at [124]. 1879 Albeit the applicant’s description of the earlier conversation with Lloyd and Dunn-Lawless as being hostile was, in essence, relied upon by him as laying the foundation for the incident. I reject his evidence as to the nature of that conversation, it being unsupported by any other evidence. 1880 Pursuant to s 20(4) of the Criminal Law Consolidation Act 1935 (CLCA) noting that the maximum penalty for such an offence aggravated by the use of an offensive weapon is five years imprisonment. 1881 Pursuant to s 24(1)(b) CLCA, the maximum penalty is 13 years imprisonment. -- 388 of 496 -- [2026] SADC 27 383 where she was when she made these observations, this is simply not something about which she could be mistaken. 2143 The Court will need to reject Ms McCallum’s evidence to make the findings as urged by the applicant as to how the incident occurred. This necessarily involves a grave finding against Ms McCallum either that she has lied about having seen the incident or has lied about what she saw. 2144 As explained in Briginshaw v Briginshaw (Briginshaw),1882 in deciding whether a fact has been proved on the balance of probabilities, the seriousness of the allegation, the inherent unlikelihood of an occurrence of the particular type under consideration or the gravity of the consequence of a particular finding, must affect whether the fact has been proved. 2145 The relevant passages from the judgment of Dixon J in Briginshaw are as follows:1883 The truth is that, when the law requires the proof of any fact, the Tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. 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. …. It is often said that such an issue as fraud must be proved "clearly", "unequivocally", "strictly" or "with certainty". This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues. But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected. (citations omitted) 2146 The Briginshaw principles apply in this case. 1882 (1938) 60 CLR 336 at [362]. 1883 Ibid at [362]-[363]. -- 389 of 496 -- [2026] SADC 27 384 The party1884 Time/date 2147 The party was held at the premises on Sunday 5 December 2010. The party commenced at 4:00pm, and took the form of a pool party, with guests encouraged to bring their bathers. It was intended for the party to conclude by midnight. 2148 The party was held after the conclusion of Year 12 exams and after the annual ‘Schoolies’ weekend held in late November. I am satisfied that this was one of many other similar parties that the young guests, including the applicant, had attended throughout the year, to celebrate their peers’ respective 18th birthdays. 2149 It is a matter of general knowledge, that most students in Year 12 will turn 18 either during the same calendar year that they undertake Year 12, or early the following year. 2150 The guests of honour at the party were Owen and Kelly Pigot. Owen had turned 18 and Kelly had either recently turned 18 or was shortly to turn 18. 2151 Both Owen and Kelly attended Scotch College and had recently finished Year 12. I am satisfied that the young guests included those from their Year 12 cohort at Scotch College, together with other friends they knew from other schools, including St Peter’s College, Prince Alfred College and Seymour College. I am satisfied that most of these young guests were aged either 17 or 18, with many having already turned 18, given the party was being held in December. Food/alcohol - generally 2152 The invitation specified that the party was ‘BYO’ and that a BBQ dinner was to be provided. 2153 The applicant acknowledged that he brought his own six pack of beer to the party, consistent with his understanding that the party was a BYO event. 2154 Notwithstanding the applicant’s evidence to the contrary, I accept the evidence of Ms Dansie and Mr Stankiewicz that they did not provide alcohol for the consumption of the young guests, albeit they did provide some alcohol for Owen to consume. I am also satisfied that Ms Dansie and Mr Stankiewicz provided water and soft drinks for party guests to consume. Insofar as the young guests wanted to consume alcohol, they were to ‘bring their own’. 2155 I am satisfied that most, if not all, of the young guests had previously attended a function or functions during the year, where alcohol was available for consumption, and was, in fact being consumed by the young guests. This includes guests who were aged under 18. 1884 I refer generally to my earlier observations at [219]-[246] herein as to the many background matters which were ultimately not in dispute. -- 390 of 496 -- [2026] SADC 27 385 2156 I am satisfied that many of the young guests who attended the party were consuming alcohol. This includes young guests who had not yet turned 18. 2157 Notwithstanding there was no specific evidence to this effect, I am further satisfied that the parents of those young guests who were invited and attended the party, knew, or ought reasonably to have known, that there would be alcohol at the party, it being an 18th birthday party. 2158 As party hosts, Ms Dansie and Mr Stankiewicz provided food for their guests. This included a barbecue dinner cooked by Mr Stankiewicz and chips and other party snacks which were made available for the guests’ consumption during the party. Guest list 2159 The young guests were invited by way of a private Facebook invitation, which could only be seen on the Facebook profile of those who had been invited and could not be forwarded. This served two purposes insofar as it enabled the guest list to be controlled by the hosts, both as to who attended and how many people attended. 2160 As to who was to attend the party, I am satisfied that this was to reflect the wishes of both Owen and Kelly - the joint guests of honour. Both Owen and Kelly were administrators for this event and were able to add invitees to the list. I am satisfied that they both had access to the list before the party and therefore could see, from the list, who had been invited, and who had indicated they would be attending. 2161 I accept the evidence of Mr Stankiewicz that he did not personally know the cohort of young people who made up the likely guest list. He trusted his son to ensure that the guest list only included people known to him and approved by him. I accept his evidence that he wanted to keep the numbers to a number not exceeding 30 young guests. 2162 The invitation list expressly includes Dunn-Lawless. I am satisfied from the invitation list and the evidence of both Dunn-Lawless and Owen that Dunn- Lawless was an invited guest and that he was invited by Kelly. 2163 I am satisfied from Owen’s evidence that when he saw Dunn-Lawless and Lloyd at the party he assumed they had showed up uninvited as he had not invited them. However, a careful review of Owen’s evidence demonstrates that his issue was with Lloyd, not with Dunn-Lawless. I consider it likely and find that Owen simply overlooked Dunn-Lawless’ name on the invitation list or saw it and thought nothing of it, given he felt ‘neutrally’ about Dunn-Lawless and the fact that this was also Kelly’s party. 2164 Although there were 104 names on the invitation list, only 79 recorded they were ‘going’. Fourteen others said they were a ‘maybe’ (including Dunn-Lawless). -- 391 of 496 -- [2026] SADC 27 386 2165 As stated, the estimates as to the actual number of attendees at the party varied between the witnesses. The highest estimate was that made by Owen, who described up to 60 guests being there at about 7:00pm.1885 That number was significantly greater than the majority of the other estimates. Having regard to all of the evidence, I consider it likely and find that at the height of the party, about 45 to 50 young guests were in attendance.1886 I consider it likely that numbers would have slowly built up from the commencement time, with the actual number of attendees fluctuating over time, as new guests arrived and other guests left the party. 2166 This was a moderately sized party, not a gathering. However, as it was on a Sunday night, with the focus being on the pool, it can be distinguished from 18th birthday parties held on a Friday or Saturday night, commencing mid-evening, involving a band or a DJ. 2167 I am satisfied that at times, there were around 40 or more young guests at the party, being in excess of the number desired by Mr Stankiewicz (30). As such, the number of attendees exceeded but did not ‘far exceed’ the hosts’ expectations. The number of guests remained within manageable limits, bearing in mind that there were, at all material times, at least four adults present, one of whom was a teacher and at least one whom had first aid training. Party set up 2168 The party was held in the back yard of the premises. 2169 The young guests entered the party via the carport/driveway. There was no one acting as ‘security’ at the entry of the driveway or at the gate which led from the driveway to the backyard, in order to monitor who was arriving at the party (that is, to ensure only invited guests attended), what the guests had brought with them (ie alcohol) and/or checking identification to determine whether any guest who brought alcohol with them was aged 18 or over. 2170 Upon their arrival at the party, the young guests congregated in various areas of the backyard. This included under the pool shelter,1887 in or adjacent to the pool, under the glory vine (or pergola)1888 and on the bricked area immediately adjacent to the pergola.1889 2171 I am also satisfied that there was one small wooden table, about the size of a card table, set up on the grassed area, with chairs, for guests to sit at, and that some of the young guests did, in fact, sit at that table during the party. I consider it likely and find that during the party, guests moved the wooden bench seats which were 1885 Exhibit P9 at [3]. 1886 See findings below as to likely number of people present as at time of the incident. 1887 At approximate grid reference E7. 1888 At approximate grid reference G7-8 and F8. 1889 At approximate grid reference G6. -- 392 of 496 -- [2026] SADC 27 387 kept under the pergola and placed them around that table to provide for more seating. 2172 The evidence of the witnesses as to the precise location of this table differed slightly. Owen, the applicant and Ms McCallum all placed this table at H4 on the grid. Dunn-Lawless placed it slightly closer to the pool at around G4/5. Mr Stankiewicz thought he set it up at G5/6. 2173 I am satisfied from Eleanor’s evidence that there was a lemon tree located on the southern fence, at around grid reference I3/4. Some of the boys were urinating at that lemon tree, during the party. It is unlikely that tree would be used as a urinal if it was very close to the table. I consider it likely and find that the table was set up in a relatively central location on the grassed area, close enough to the back of the house to be lit by the floodlight on the corner of the house,1890 but a sufficient distance away from that tree, that is, at around G4/G5 on the grid, straddling H4/H5. 2174 At times, the young guests would enter the house, for example, to say hello to Owen’s parents and/or to use the toilet. There were two toilets inside the house for the guests to use, one adjacent to the kitchen and one off the hallway opposite a set of glass doors that led from the living room to the pergola. I reject the applicant’s evidence which was to the effect that there were no toilet facilities for the boys and that as such they were forced to use the lemon tree and/or other bushes. While I do not doubt that during the party many boys chose to relieve themselves at either the lemon tree located on the southern fence of the premises, or at the bushes/trees located on the back/western fence, they did so out of convenience, rather than being specifically directed to, and/or forced to, by the third and fourth respondents. Older adult supervision 2175 I am satisfied that at all material times, there were at least four older adults at the party, namely Mr Stankiewicz, Ms Dansie and Mr and Mrs Allan. There was a further adult couple also in attendance during the early part of the party, namely Eleanor and Marcel, however they had left the party prior to the incident. 2176 Ms Dansie and Mrs Allan spent most of their time at the party inside the house, in either the kitchen and/or living room adjacent to the pergola. From this position, they had a limited ability to observe what was going on outside amongst the guests. By limited, I mean that although there were glass windows adjacent to the living area and a large glass window over the kitchen sink which faced west, any such visual observations would necessarily be limited by the presence of guests mingling outside, generally in front of those windows. 2177 I am satisfied that at times, during the party, both Mr Stankiewicz and/or Mr Allan were outside in the backyard, primarily for purposes associated with 1890 See findings below. -- 393 of 496 -- [2026] SADC 27 388 cooking the barbecue and ensuring the plates of food (set up on a trestle table near the house) were replenished. At other times they circulated throughout the backyard to pick up empty bottles, check for any broken glass and the like. 2178 Neither Mr Stankiewicz nor Mr Allan were actively supervising the young guests insofar as they were not maintaining a continuous patrol of the back yard to monitor guests’ behaviour and/or alcohol consumption, nor was anyone else performing such a role. That is not to say that they were not keeping a general eye on the status of the party. I am satisfied that while they were outside, they used that as an opportunity to make general observations of the guests’ behaviour, general level of rowdiness and apparent level of intoxication. 2179 Similarly, when either Ms Dansie, Mr Stankiewicz, Mr Allan or Mrs Allan were inside, I am satisfied that at times, they were looking through either the kitchen window over the sink or the glass doors adjacent to the living room, to look into the backyard and make general observations to the same effect. 2180 At no stage did either Mr Stankiewicz, Mr Allan or anyone else, take any active steps to restrict the consumption of alcohol at the party to only those who were aged 18 or over, or to rigorously monitor the level of alcohol consumption by guests. 2181 I reject the evidence of the applicant that the older adults at the party were all consuming significant quantities of alcohol and/or any evidence the applicant gave from which it may be inferred that any of those adults was intoxicated. 2182 I am satisfied from all of the other evidence given on this topic, that the older adults present consumed very modest amounts of alcohol at the party, comprising white wine and champagne for a toast for Owen’s birthday. The white wine was kept in a refrigerator in the kitchen. Neither the white wine nor the champagne consumed by the older adults, was made generally available for the young guests at the party to consume. 2183 The adults, including the third and fourth respondents, were not intoxicated. They were all perfectly capable of responding to any crisis (and did, in fact, appropriately and capably respond to the incident). Lighting 2184 Having regard to all of the evidence, I am satisfied that during the party, once the sun went down, the backyard was illuminated by a number of different light sources. Those included: • light emanating from the inside of the house, through the glass kitchen window and the glass doors and windows adjacent to the pergola;1891 1891 Exhibit P2, photographs 4, 5, 9, 10 and 16. -- 394 of 496 -- [2026] SADC 27 389 • two fixed baton lights under the pool shelter; • a fixed light under the pergola, located above the glass doors which led from the living room to the pergola and which generally faced north;1892 • a flood light located at the far end of the pergola, on the corner of the house at or about the intersection of G5/6 and H5/6. That light faced on an angle across the yard in a north westerly direction; and • two internal pool lights located on the south side of the pool. 2185 I accept the evidence of both Mr Stankiewicz and Eleanor, that if you were at the back of the premises, in the south western corner, at around I2-4 on the grid, or at the far western fence, at around G2, G3, H2 and H3 on the grid, that you would not be in total darkness, but that these areas would not receive any direct light from any light source. I am satisfied that if you were in these areas (or adjacent to these areas) you could see if other people were in those areas, and make out objects, but the light would not have been sufficient for someone to read a book. Lines of sight/visibility throughout the backyard 2186 To have a proper understanding of the size of the backyard, and therefore whether there was a line of sight available to various parts of the backyard, once the sun set, it is important to understand the size of the premises. 2187 The premises were on a 696 sqm block. The north and south boundaries were each 45.72 m long, with the western and eastern boundaries being 15.24 m long. By reference to Exhibits P29 and R37, I am satisfied that the actual distance between the most western part of the house, and the western fence, was no more than 15 m. I am also satisfied that the width of the grassed area, between the pool and the southern (side) fence, located roughly within the grid from rows G-I, columns 2-5, was around 9 m. As such, I am satisfied that the table (where Ms McCallum said she was seated at the time of the incident) was located no more than about 5-6 m from the very back/western part of the house and about 10 m from the western end of the pergola. 2188 In other words, as acknowledged by applicant, the backyard was not a very large backyard.1893 It was what may be described as a standard sized backyard, on a single lot, as routinely found in the suburbs of metropolitan Adelaide. There was no tennis court, nor vast swathes of garden secluded and out of general sight. 2189 Photograph 10 demonstrates that the rear (western) fence of the property can be seen through a window located above the sink, in the kitchen, facing due west. However, the house layout includes a wing at the southwest rear of the property. 1892 Exhibit P2, photograph 16. Noting that although Mr Stankiewicz described this light as being on the southern side of the house, I am satisfied this was an error and that it in fact faced towards the north. 1893 T 1802.32-1803.10. -- 395 of 496 -- [2026] SADC 27 390 That part of the house necessarily obstructs the view of part of the backyard, located immediately behind that wing and adjacent to the southern/side fence, from the kitchen window.1894 The extent to which that wing obstructs the view of the backyard is necessarily dependent on where someone is, relevant to that wing. 2190 The pool (to the northwest) and pergola area immediately adjacent to the house, is visible through the kitchen window. 2191 The ability of anyone to see from inside the house, to outside, during the party, would necessarily have been restricted by the presence of people otherwise gathered outside under the pergola. 2192 Similarly, the extent to which people who were standing under the pergola, could have seen the grassed area of the backyard was dependent on precisely where they were standing having regard to the depth of the western wing of the house, which way they were facing and the presence of other people in their immediate vicinity. 2193 However, I am satisfied that if there were young guests standing at the western end of the pergola, under the glory vine, or in the bricked area immediately adjacent thereto, and were facing generally towards the west/rear of the property, that those people would have had the capacity to see at least into the backyard into the areas on the grid marked H3, H4 and H5. Similarly, I am satisfied that anyone in the pool or congregated under the pool shelter (at grid E7) had the capacity to see that part of the grassed area in H3/H4 on the grid. 2194 As to each of those areas, having regard to the size of backyard and the position of the floodlight on the north western corner of the western wing of the house, facing north west, I am satisfied there was sufficient lighting (or spillage from that lighting) and the pool lights, for the presence of people within those grid areas (H3, H4 and H5) to be seen by those facing in that direction and standing towards the western end of the pergola and in the bricked area. Alcohol consumption by young guests - generally 2195 There is no doubt and I find that many of the young guests at the party were drinking alcohol, including some aged under 18 (for example, the applicant). 2196 However, the only witness to describe the behaviour of the young guests, generally, as being overtly intoxicated, was the applicant. As previously stated, I reject the applicant’s evidence that he either saw or heard young guests throwing up in the toilet or elsewhere. 2197 The older adults spent considerable time inside and were perfectly positioned to observe the young guests who came inside to use the toilet. I am satisfied from 1894 Exhibit P2 at photographs 4, 9 and 10. -- 396 of 496 -- [2026] SADC 27 391 their evidence that there was nothing they saw or heard to indicate guests were throwing up in the toilets. 2198 I accept that the older adults’ ability to properly gauge how much the young guests (outside) were drinking was limited by the fact that they were not maintaining a constant patrol of the backyard, in numbers, making a mental note of how many alcoholic drinks each young person consumed. However, Mr Heames gave evidence that no one appeared overtly intoxicated, no one was sick or ill and although alcohol was being consumed, nothing untoward was happening. Mr Eckert did not recall seeing anyone acting in an overtly intoxicating manner. These were witnesses called by the applicant. 2199 There was no evidence from any other witness that any of the young guests, besides the applicant, were acting in a way which demonstrated they were overtly intoxicated. 2200 I am satisfied that none of the young guests were, apparently, overtly drunk.1895 I find, in accordance with the evidence of Mr and Mrs Allan, that many of the young guests were ‘slightly inebriated’ as indicated by their general level of boisterousness. Alcohol consumption by Lloyd and Dunn-Lawless 2201 There was no evidence as to what, if any, alcohol Lloyd had consumed prior to arriving at the party. 2202 There was only limited evidence as to what alcohol Lloyd consumed at the party and insufficient evidence to enable the Court to make an accurate finding as to how much alcohol Lloyd consumed at the party. 2203 Dunn-Lawless gave evidence that he saw Lloyd drinking from a long neck beer bottle at the party. He said Lloyd consumed ‘more than one bottle’. From that evidence, I assume he meant, ‘more than one long neck bottle of beer’. Ms McCallum also described seeing Lloyd holding a long neck beer bottle, which he dropped, during the incident. Owen recalled seeing Lloyd and Dunn-Lawless drinking at the party and had a recollection of seeing a Coopers Red label beer bottle but could not say if it was Lloyd or Dunn-Lawless who was drinking from that bottle. 2204 The applicant gave evidence that when he walked past the table to go to the back fence to urinate, immediately before the incident, he saw Lloyd and Dunn- Lawless sitting at the table, drinking. He said:1896 I remember the assailants were drinking champagne, cheap champagne, it was ... pop, and Coopers Ale, that's what they had on the table, before the assaulted me. 1895 See findings below regarding the applicant’s apparent level of intoxication. 1896 T 220.17-20. -- 397 of 496 -- [2026] SADC 27 392 2205 Dunn-Lawless gave evidence that the girls at the table were drinking sparkling wine (or Passion Pop) and believed there was at least a bottle of that type of beverage on the table at some stage during the night. He acknowledged he had consumed some of it. He had no recollection of drinking beer. 2206 There was no evidence from any other witness from which it could be inferred that Lloyd was drinking cheap champagne at the party. 2207 Although Lloyd may have drunk some of the cheap champagne that was on the table, I cannot make such a finding on balance. The applicant’s evidence does not go as high as that (that is, he did not differentiate between Lloyd and Dunn- Lawless as to who was drinking what beverage as he walked past the table). Further, as outlined, I have very real doubts as to the reliability of the applicant’s evidence in any event. It is certainly possible that as the applicant holds a fixed belief that he was struck by both a cheap champagne bottle and a beer bottle, he has assumed, and now falsely remembered, that Lloyd and Dunn-Lawless were drinking such beverages when he walked past the table. 2208 I am satisfied and find that while he was at the party, Lloyd was drinking beer from a long neck bottle and that he likely drank more than one such bottle. There was no evidence as to precisely what volume of beer is contained in a ‘long neck beer bottle’. On a reasonable assumption that it may be around 700-750 ml, I am satisfied that Lloyd drank more than 750 ml of beer at the party but I cannot make any more accurate finding as to how much alcohol he consumed prior to the incident. 2209 There was no evidence from any witness (including the applicant) that at any time before the incident, they observed Lloyd acting in a manner which was consistent with him being overtly intoxicated (or even intoxicated). Although I consider it likely that Lloyd may have been ‘slightly inebriated’ at the time of the incident, consistent with him having consumed more than 750 ml of beer at the party, there is simply insufficient evidence for me to find that he was drunk and certainly not enough evidence to find he was ‘horribly drunk’. There was no evidence as to the likely impact on a person by the consumption of such a quantity of beer, over a certain timeframe. 2210 I am satisfied from Owen’s evidence that this was not the first time Lloyd had consumed alcohol. In other words, Lloyd was not a ‘novice’ drinker at the time of the party. 2211 Similarly, there was no evidence as to what, if any alcohol Dunn-Lawless had consumed prior to his arrival at the party and only limited evidence as to what alcohol he consumed while he was at the party. 2212 Dunn-Lawless gave essentially unchallenged evidence that he did not drink much alcohol at the party. He described drinking the ‘Slippery Fish’ white wine -- 398 of 496 -- [2026] SADC 27 393 he had bought from the bottle shop and some sparkling wine (or Passion Pop). He estimated that he drank three or four standard drinks throughout the evening. 2213 Ms McCallum could not recall what Dunn-Lawless was drinking. Although Owen gave evidence to the effect that both Lloyd and Dunn-Lawless were drinking beer from long neck bottles, this was in the context of him earlier saying he could not recall who, out of Lloyd and Dunn-Lawless was drinking beer. As such, I cannot make a finding, based on Owen’s evidence, that Dunn-Lawless was also consuming beer at the party. 2214 There was no evidence from any witness (including the applicant) that at any time before the incident, they observed Dunn-Lawless acting in a manner which was consistent with him being overtly intoxicated (or even intoxicated). As with Lloyd, I consider it likely Dunn-Lawless was ‘slightly inebriated’ at the time of the incident, consistent with him having consumed about four standard drinks while he had been at the party. However, there is no evidence to support a finding that Dunn-Lawless was behaving in a manner consistent with him being drunk, at any time, prior to the incident. Applicant’s alcohol consumption 2215 I am satisfied that the applicant was intoxicated at the time of the incident, at which time his likely blood alcohol concentration was approximately 0.145% gms. 2216 The applicant maintained he only drank beer at the party and, specifically, six beers. He denied drinking anyone else’s alcohol. He denied being drunk and described himself as lucid, referencing the phone call he made to his mother about half an hour before the incident. He said, ‘I can hold my alcohol’ and that he had drunk a similar amount on several prior occasions.1897 2217 Owen gave evidence that the applicant could drink a lot and that he was, in fact, quite coherent at the party, despite him having a drink in his hand every time he saw him. 2218 I am satisfied that at the time of the party, the applicant was not a novice drinker, despite the fact he was still only 17. 2219 The only witness who gave evidence that they had observed anyone to be ‘acting drunk’ at the party was Ms McCallum, who made such observations of the applicant. By way of explanation, she said she saw the applicant in the pool, being loud and acting drunk. She noticed him because his behaviour was out of character to the rest of the party. He was jumping in the pool, splashing and making a loud noise. She also saw him drinking by the pool. She also explained that, at the time of the party, she had experience observing people who were under the influence of alcohol, having worked for several years at her parents’ pub. 1897 T 268.30-269.8. -- 399 of 496 -- [2026] SADC 27 394 2220 The applicant acknowledged that he had been drinking beer while he was in the pool, consistent with Ms McCallum’s evidence. He said he spent most of the night in the pool. 2221 Ms McCallum did not know the applicant before the party and therefore knew nothing about his behaviour when sober. As stated, I am satisfied that the applicant was significantly intoxicated at the time of the incident. However, other than drinking, being loud and splashing around in the pool (and potentially disobeying house rules, if, in fact, there was a sign in the pool area forbidding glass in that area), there was nothing else about the applicant’s behaviour which Ms McCallum described as indicative of him being drunk. For example, Ms McCallum did not describe seeing or hearing the applicant be abusive, or falling over, or slurring his words, vomiting or participating in drinking games and the like, at any time, prior to the incident. 2222 The absence of those types of indicators may explain why none of the other witnesses (including Owen, Mr Heames and Mr Eckert) made any specific observations of the applicant which led them to believe he was overly intoxicated, during the party. 2223 Although the applicant was not behaving in a manner which caused others to believe he was ‘overly drunk’, his blood alcohol level was significant. I am satisfied that at the time of the incident, the applicant’s prior consumption of alcohol likely caused impairments to his cognitive functioning, resulting in errors of judgment and poor decision making. He was likely to have had some difficulty in perceiving his environment, such that he may have failed to perceive objects or events around him that would be obvious to a sober person. These types of impediments may not have been readily apparent to others making passing and casual observations of him during the party. Conversation regarding uninvited guests 2224 Although Dunn-Lawless did not recall being involved in any discussion with Owen (and the applicant) about being at the party uninvited, I am satisfied that he was a part of such a discussion, albeit a peripheral part. 2225 I accept Owen’s evidence that he had a neutral relationship with Dunn- Lawless, but a difficult relationship with Lloyd, before the party. I am satisfied that it was therefore Lloyd, not Dunn-Lawless, who was the focus of Owen’s concern, albeit the fact that Dunn-Lawless was with Lloyd, and Owen did not know he had been invited, necessarily meant that he became involved in the discussion. 2226 I am satisfied that the relevant discussion involved Owen, accompanied by the applicant and Mr Heames, Lloyd and Dunn-Lawless. I reject the applicant’s evidence that Ms Dansie was present for any part of the conversation, it being contrary to all of the other evidence on this topic. -- 400 of 496 -- [2026] SADC 27 395 2227 I accept Owen’s evidence that the conversation took place at or near the table on the grassed area. In Owen’s statement he described the conversation as occurring at around 8:00pm. I consider it likely it occurred sometime between 8:00pm and 8:40pm, shortly after Lloyd arrived at the party (noting Ms McCallum described arriving with Lloyd at around dusk/8:30pm). 2228 I reject the applicant’s evidence that during this discussion Lloyd and/or Dunn-Lawless threatened him (or anyone), and/or suggested that he (or anyone) should physically kick them out and/or called him (or anyone) a pussy for not doing so. There was no other evidence (including what was in Owen’s statement) to support any such findings and reliable evidence to the contrary. 2229 Rather, I am satisfied and find that after Lloyd and Dunn-Lawless explained that they had been invited to the party by Kelly, Owen agreed that Lloyd and Dunn- Lawless could stay at the party. The conversation proceeded in an orderly and civil manner, with no suggestion of any threats or intimidating behaviour, and ended amicably, with an agreement that both Lloyd and Dunn-Lawless could stay as Kelly’s guests. 2230 I accept Owen’s evidence that thereafter he had a further amicable conversation with Lloyd, during which they effectively agreed to resolve their differences and Lloyd apologised to him for his past behaviour towards him. 2231 In this respect, I accept the evidence of Ms Dansie and find that she was made aware, by Owen, of the fact that there were people at the party, who had been invited by Kelly, with whom Owen had not gotten along when he was at school. I accept her evidence that Owen was pleased that he had had an opportunity to talk with them, during which they had apologised for their behaviours at school. I consider it likely that Mr Stankiewicz either overheard that discussion or learned of it sometime shortly thereafter. I am satisfied the guests in question were Lloyd and Dunn-Lawless. 2232 Having regard to Owen’s evidence and his statement, I am satisfied that during his initial discussion with Lloyd and Dunn-Lawless, Lloyd said something to the effect that if he stayed, he would not cause any trouble. This is consistent with what Owen described in terms of his prior interactions with Lloyd having been troublesome. 2233 It may well be the case that during this discussion, Owen did say to Lloyd, words to the effect of ‘as long as you don’t start any fights or get disgustingly drunk, you can stay.’ However, there was no evidence, as at the time of that discussion, or at any time thereafter, prior to the incident, to support a finding that Lloyd (and/or Dunn-Lawless) were behaving at the party in a manner from which it could be reasonably inferred either that they were disgustingly drunk (or likely to get disgustingly drunk) and/or were behaving aggressively. -- 401 of 496 -- [2026] SADC 27 396 2234 I agree with the submission made by the third and fourth respondents that the very fact Owen initiated the discussion with Lloyd and Dunn-Lawless meant he was being careful to ensure that only invited guests were present and to deal with anyone who he thought was there uninvited. In other words, he was ensuring that there was a degree of control over who was present. 2235 I am satisfied that the primary reason Owen agreed for Lloyd (and Dunn- Lawless) to stay at the party was because he was informed both by Lloyd and Dunn-Lawless and by Kelly, that she had invited them. It was, after all, a joint birthday party. Dunn-Lawless’ name is on the invitation list. I am satisfied he was an invited guest, not a gate crasher Although Lloyd’s name was not on the invitation list, neither was the applicant’s name and there was evidence to provide a possible explanation for that anomaly, which may also apply to Lloyd.1898 2236 Even if Lloyd was not initially invited to the party, I am satisfied that Kelly Pigot told Owen that she had invited him and further that following the discussion, it was agreed for Lloyd to stay. 2237 I am satisfied that Owen knew Lloyd to be someone who had a prior reputation for being a bully and aggressive. He had seen him get into fights at school and had seen him get drunk at previous parties. 2238 I am also satisfied, from the applicant’s own evidence, that he had previously drunk as much alcohol as he did, on the night of the party. Notwithstanding my concerns at aspects of Owen’s evidence, I accept his evidence that he had previously seen the applicant intoxicated at parties. I am satisfied from the school records that the applicant was someone also known to behave aggressively towards others. However, Owen did not attend school with the applicant and as such, I cannot find that he knew this about the applicant’s prior behaviour. 2239 Finally, I am satisfied that having regard to the nature of this conversation, which was initiated by Owen, not the applicant, and ended amicably, there was simply no reason for either Lloyd or Dunn-Lawless to hold any feeling of animosity towards the applicant thereafter. Gate crashers – generally 2240 Dunn-Lawless was not a ‘gate crasher’ at the party as he was invited by Kelly Pigot. Even if Lloyd was a ‘gate crasher’ when he entered the premises, his presence at the party was noted and after the discussion with Owen, it was agreed he could stay. 1898 See discussion at [226] herein. As per Exhibit P26, I am satisfied that Lloyd now goes by the name ‘Jack Lam’. Although there was no specific evidence on this topic, having regard to the fact that Lloyd now has a Facebook account under his new name, Jack Lam, it is likely that any old account, under the name ‘Jack Lloyd’ has been deleted. -- 402 of 496 -- [2026] SADC 27 397 2241 There was no evidence that any other so-called gate crashers had attended, or sought to attend, the party. General party atmosphere prior to incident 2242 The evidence of all of the relevant witnesses was that this was a relatively calm and quiet party, indeed, ‘a pretty tame affair’, compared to others attended that year by Mr Heames. I make findings to that effect. 2243 I find that there was no aggressive or violent or threatening behaviour by any of the guests, including Lloyd and Dunn-Lawless, prior to the incident. There was no overtly drunken behaviour by guests, beyond the applicant behaving noisily and splashing in the pool. None of the young guests were vomiting either inside or outside the house. None of the guests, including Lloyd and Dunn-Lawless, were behaving in a disorderly or offensive manner prior to the incident. 2244 The atmosphere was largely a positive one, with guests enjoying themselves and no indication of there being anything wrong or of any problems amongst the guests which may have served as a potential warning of the incident which ultimately ensued. The incident 2245 When making findings of fact as to the incident, I am mindful of the Briginshaw principles. 2246 There were only three witnesses who gave evidence attesting to what occurred during the incident – the applicant, Dunn-Lawless and Ms McCallum. Obviously both the applicant and Dunn-Lawless have a significant personal interest in the outcome of this matter. Ms McCallum does not. 2247 As canvassed extensively above, the applicant contended that considerable support for his version of events came from what Owen outlined in his police statement. In fact, there was very limited support provided for the applicant’s account in that statement, and insofar as there was such support, in his evidence, Owen resiled from having made those observations. Further, Owen’s claimed observations, as outlined in the statement, do not accord with the applicant’s version of events, or those of Dunn-Lawless, or those of Ms McCallum. 2248 In making positive findings of fact as to precisely what occurred, I have gained significant assistance from critically assessing other objective evidence as to the surrounding circumstances, in order to consider the relative likelihood and/or plausibility of the events occurring in accordance with the account given by each witness. 2249 I am satisfied the incident occurred between about 10:30pm and 10:40pm on 5 December 2010, having regard to what Ms Dansie told the operator during the -- 403 of 496 -- [2026] SADC 27 398 triple zero call made at 10:56pm, namely that the incident occurred ‘probably about 20 minutes ago, maybe less’.1899 2250 I am further satisfied that at the time of the incident there were approximately 40 to 45 people at the party. During the triple zero call made at 10:56pm, Ms Dansie told the operator that there were about 30 people there at that time, being shortly after the incident. In the Police Incident Report it is recorded that when police arrived, as the ambulance was leaving, there were 40 people in attendance. It is likely that both of these were estimates, rather than accurate numbers based on a headcount. The police estimate also likely included all persons present (including the adults), whereas Ms Dansie’s estimate may not. 2251 Lloyd, Dunn-Lawless and Ms McCallum (and possibly Ms Hardy), had left the party by the time both of those estimates were made. Others may also have left, given the incident very much changed the atmosphere of the party. 2252 Shortly prior to the incident, the applicant was in the pool. He got out of the pool and walked through the grassed area in the backyard, towards the rear western fence of the premises, where he intended to urinate. He was wearing his boardshorts but no top. 2253 At that time, Lloyd, Dunn-Lawless and Ms McCallum, were seated at the small table located on the grassed area at about G4/G5 on the grid, straddling H4/H5. There were other girls either seated at the table or in the vicinity of the table. By necessity, the applicant was required to walk past that table to get to the western fence. He walked past the southern side of the table and headed generally west. 2254 I am not satisfied that there was any verbal interaction between the applicant and either Lloyd and/or Dunn-Lawless at that time. There was simply no reliable evidence of any tension or ill feeling between the applicant and Lloyd and/or Dunn-Lawless at any time, prior to this, which would provide a logical explanation for any exchange of the type described by the applicant. Lloyd and Dunn-Lawless had remained at the party without incident after the initial conversation with Owen. I am satisfied this was a period of around two hours. 2255 The only evidence from any witness of any interaction of any type (verbal or physical) between the applicant and either Lloyd and/or Dunn-Lawless between that initial conversation, and the moment when the applicant walked past the table, was given by Dunn-Lawless. 2256 He gave evidence that at about 10:00pm, he saw the applicant come up behind Lloyd and pick him up, under the arms in a ‘bear hug’, and then lower him back to the ground, without incident. Although Dunn-Lawless was not challenged 1899 Exhibit P15, MFI P34 at p 1. -- 404 of 496 -- [2026] SADC 27 399 on this aspect of his evidence, this was denied by the applicant. There was no evidence from anyone else to this effect. 2257 However, what Dunn-Lawless described was an overly friendly gesture/interaction between the applicant and Lloyd, in circumstances where they were not known to each other. There was no aggression accompanying this action, nor any description of Lloyd reacting with any hostility (or even agitation) to this action, which was momentary and ended without any type of incident. 2258 I have carefully considered this evidence. It was an integral part of Dunn- Lawless’ account (and Ms McCallum’s account) that the applicant grabbed Lloyd in a bear hug, after they both returned from urinating at the back fence, being the physical contact which, on their account, had then effectively started the incident. Dunn-Lawless’ description of the earlier alleged bear hug therefore provides some context or explanation for that later claimed bear hug. 2259 However, it does nothing more than that. As I said, it was the only evidence of any interaction involving the applicant and either Lloyd or Dunn-Lawless beyond the initial conversation with Owen. If Dunn-Lawless had described there being some exchange between the applicant and Lloyd after that initial bear hug, demonstrating some ‘ongoing niggle’ between them, it would assume much greater importance. There was no such evidence. 2260 There was evidence, which I accept, that the applicant was physically taller and heavier than Lloyd. The applicant agreed he was taller than Lloyd who he described as small and short in stature. I accept Mrs Chattaway’s evidence that the applicant weighed about 85 to 90 kg at the time and was about 6’2” tall. Dunn- Lawless gave unchallenged evidence that Lloyd was stocky but only about 5’5” tall. I am satisfied that the applicant was physically taller and larger than Lloyd and therefore physically capable of lifting Lloyd up, in a bear hug, of the type described by Dunn-Lawless. 2261 Further, I accept the evidence given by Ms McCallum that the applicant was behaving in a disinhibited manner during the party, which, I am satisfied, was likely due to the fact he was intoxicated. The likelihood of anyone behaving in the manner as described by Dunn-Lawless (that is, picking up someone they barely knew from behind, in a bear hug) is low, unless, of course, they were disinhibited in their actions for a reason, such as, the consumption of alcohol. 2262 After much consideration, I accept Dunn-Lawless’ evidence about the earlier bear hug. 2263 However, there was simply no reliable evidence from which the Court could conclude that there was any tension or hostility between the applicant and Lloyd and/or Dunn-Lawless such as to provide any basis for the alleged threats made by Lloyd and Dunn-Lawless, as claimed by the applicant, as he walked past that table. -- 405 of 496 -- [2026] SADC 27 400 2264 I accept the evidence given by Dunn-Lawless, that as the applicant walked past the table, he made eye contact with Dunn-Lawless, but that no verbal comments were made by either the applicant, Lloyd or Dunn-Lawless at that time. 2265 I accept the evidence given by Dunn-Lawless, supported by that of Ms McCallum, and find that shortly after the applicant walked past the table, Lloyd got up and left the table and also walked in the direction of the back fence, presumably to urinate. 2266 I am satisfied from the evidence given by the applicant and Dunn-Lawless that both the applicant and Lloyd went to urinate in the same general location at the back/western fence of the premises. Having regard to Exhibit P29, and the photographs in Exhibit P2, I am satisfied that was at about H2 on the grid. 2267 The applicant gave evidence that he was pushed into the fence by both Lloyd and Dunn-Lawless as he started to urinate and that he in fact urinated on himself. While I have significant reservations about many aspects of the applicant’s evidence, I accept his evidence that he was pushed as he was urinating and that as a result, he urinated on himself. That aspect of his evidence was compelling and provides some context for what happened thereafter. 2268 However, I reject the applicant’s claim that he was pushed by both Lloyd and Dunn-Lawless. I am satisfied and find that it was only Lloyd who pushed the applicant. I consider it likely that the applicant’s recollection of being pushed by both Lloyd and Dunn-Lawless is a mistaken one based on him simply assuming they both pushed him, given that they were both involved in the altercation with him which occurred shortly thereafter. 2269 I accept the evidence of Dunn-Lawless, and that of Ms McCallum, that Dunn- Lawless did not follow the applicant and Lloyd to the back fence. For the reasons as previously explained, I do not agree with the submission that what Owen told the police, about seeing Dunn-Lawless run from the table, around the corner, five to 10 seconds after seeing the applicant and Lloyd proceed in that direction, fits with this aspect of the applicant’s account. The applicant claimed to have been pushed as he started to urinate. 2270 I am satisfied and find that Lloyd pushed the applicant in the back while the applicant was urinating at the back fence. There is insufficient evidence to make a finding as to why he did this. However, it may well be the case that there were words exchanged between the applicant and Lloyd at the fence. I am satisfied from all of the evidence that both Lloyd and the applicant had previously demonstrated their ability to act aggressively and immaturely towards others. It is not difficult to envisage a circumstance where something was said by the applicant which prompted Lloyd to respond in that immature manner. -- 406 of 496 -- [2026] SADC 27 401 2271 I am further satisfied and find that this action, that is, Lloyd pushing the applicant while he was urinating, was the impetus for why the applicant then responded in the way as described by Dunn-Lawless. 2272 I reject the applicant’s evidence that after he was pushed into the fence, Lloyd (and Dunn-Lawless) walked back to the table to retrieve various bottles, and then together engaged in a violent altercation whereby they each struck the applicant multiple times with bottles. 2273 On the applicant’s version, this altercation started in H3 and moved into H4 on the grid. 2274 Dunn-Lawless also described the altercation as occurring in a location in the vicinity of H3/H4 on the grid. Ms McCallum described it occurring directly across the table from her, in front of her. I prefer and accept Dunn-Lawless’ evidence. This was, in any event, directly in front of Ms McCallum, having regard to her description of where she was seated at the table. I consider however that her shock of what she was seeing, in front of her, has contributed to her now remembering the incident as occurring even closer to her. 2275 I am satisfied and find the altercation occurred on the grass in the vicinity of H3/H4 on the grid. 2276 The applicant claimed the entire ‘assault’ lasted five to eight minutes. I reject that evidence. It is much more likely, and I find, that the whole incident was over within a matter of 10 to 15 seconds as described by Dunn-Lawless. 2277 I refer to my previous findings and observations as to the size of the backyard, the lighting provided by the light on the north-western corner of the very rear of the house. There were multiple people congregated under the pergola and people at and near the table, in close proximity to where the altercation occurred. 2278 I am satisfied that this area was not in pitch darkness, having regard to the light on the rear northwestern corner of the house and the lights from the adjacent pool. I am satisfied there was sufficient light in that area for the movements of those involved in the altercation to be seen by others within the backyard. Specifically, I am satisfied that people moving about in that area would have been visible to those persons who were at or near the table, standing under the pergola, standing on the bricked area to the west of the pergola, in the pool and/or under the pool shelter, provided, of course, such persons were facing towards that area and their view was not otherwise obstructed by other people. 2279 There was no evidence that anyone (other than Dunn-Lawless) reacted to the altercation. 2280 There was no evidence that anyone at the party saw or heard the applicant being beaten by bottles. -- 407 of 496 -- [2026] SADC 27 402 2281 Having regard to the size of the backyard, the lighting, and the number of people in attendance, I consider it is inconceivable that no one at the party would have either seen or heard an attack involving the applicant being repeatedly and brutally bashed with bottles and/or reacted to such a horrific act of violence unfolding only metres away from them. By react, I mean, by screaming for them to stop, or attempting to intervene to make them stop. 2282 The applicant described the attack as unprovoked. 2283 I am satisfied there was no hostility whatsoever between the applicant and Lloyd and/or Dunn-Lawless at any time during the party prior to the incident. There was no evidence of any longstanding bad blood between the applicant and Lloyd and/or Dunn-Lawless. There was no reliable evidence that either Lloyd or Dunn-Lawless had behaved aggressively at any time, during the party, nor was there any reliable evidence to the effect that either of them were behaving in a manner consistent with them being intoxicated, or even that they were behaving in a stupid or silly manner. 2284 There was ample evidence including from witnesses called by the applicant that this was a spontaneous incident which was completely unexpected, given the overall friendly and convivial atmosphere at the party beforehand. I make that finding. 2285 I also consider it implausible that Lloyd and Dunn-Lawless would embark on such a brutal act of unprovoked violence on the applicant, in close proximity to numerous other partygoers, given their limited prior interaction with the applicant (and the nature of that interaction) at the party and the fact that they otherwise had no history of ill-feeling towards each other. Put another way, there was simply no motivation for them to act in this way, being a relevant factor to consider in terms of the inherent likelihood (or unlikelihood) that they did so act. 2286 I refer to my previous findings at paragraphs 1708-1710 herein. 2287 I accept Prof David’s evidence that had bottles been used, even to inflict only four or five blows, the applicant would have sustained much more serious injuries than those ultimately sustained. As previously stated, in the absence of any supporting medical evidence, I reject the applicant’s evidence that he used his arms to fend off multiple blows with bottles. 2288 Having regard to all of the evidence, I reject the applicant’s evidence that he was hit multiple times with bottles by Lloyd and/or Dunn-Lawless. I am not persuaded on all of the evidence that the applicant was hit with a bottle, at any time, by either Lloyd or Dunn-Lawless. 2289 I find, consistent with the accounts of both Dunn-Lawless and Ms McCallum, that the altercation was over in a matter of seconds, rather than minutes and that it comprised the applicant, Lloyd and Dunn-Lawless using their fists (only) and not bottles, to take various swings at one another. -- 408 of 496 -- [2026] SADC 27 403 2290 I accept Dunn-Lawless’ evidence and find that as Lloyd was walking back to the table, he heard Lloyd call out his name, with a sense of urgency, and that he responded to that, by getting up from the table and walking towards Lloyd. The fact that Ms McCallum did not describe hearing such a comment may simply be because she did not think that important in terms of adding to what she had otherwise seen (and described) or alternatively she simply did not hear the comment as it was not directed towards her. 2291 I accept Dunn-Lawless’ evidence and find that he then saw the applicant come up behind Lloyd and lift him up, under his arms, in a type of bear hug, before releasing Lloyd back to the ground. 2292 Dunn-Lawless gave evidence that thereafter, Lloyd used his one free hand to push the applicant away from him, and that in response, the applicant swung his right arm and struck Lloyd in the side of the left side of his head, causing Lloyd to drop a beer bottle that he was holding in his other hand and to stagger backwards. He said that he then saw the applicant advance again towards Lloyd. It was only then that he entered the altercation. He attempted to strike the applicant with his right hand, but his blow did not land. 2293 Ms McCallum gave evidence that she saw the applicant and Lloyd throw punches at each other during the altercation, before the applicant landed the punch on Lloyd that knocked a beer bottle from his hand. 2294 I have carefully considered Ms McCallum’s evidence of the sequence in which various things occurred during the incident. I consider it is likely she is mistaken as to her description of when it was, in this sequence, that she saw the applicant and Lloyd taking swings at each other. This is understandable, given the period of time which has passed since the incident, the rapid pace at which events were likely unfolding in front of her and the fact that she was shocked at what she was seeing. Further, as previously stated, Ms McCallum was never ‘stepped through’ the sequence of events she had initially described, being a sequence elicited by way of a monologue, rather than in any careful way.1900 2295 Dunn-Lawless did not recall seeing Lloyd ‘land’ a punch on the applicant, at all, during the altercation. 2296 I accept Ms McCallum’s evidence that Lloyd and the applicant were both swinging their fists at each other during the altercation. Having regard to the expert evidence and that of Ms McCallum, I consider it likely and find that Lloyd did land at least one punch to the right-hand side of the applicant’s face during the altercation. I consider it likely and find that the fact Dunn-Lawless did not recall seeing this, is because, by this time, he had already entered the fray and things were happening very quickly around him. 1900 T 461.29-462.9. -- 409 of 496 -- [2026] SADC 27 404 2297 I accept the evidence given by Dunn-Lawless and find that after the applicant released Lloyd from the bear hug, Lloyd tried to push the applicant away from him, and that in response, the applicant swung his right arm and struck Lloyd in the side of the left side of his head, causing Lloyd to drop a beer bottle that he was holding in his other hand and to stagger backwards. 2298 I accept Dunn-Lawless’ evidence and find that thereafter the applicant advanced again towards Lloyd, and that in response to what he had seen, Dunn- Lawless moved towards the applicant and Lloyd and tried to punch the applicant, using his right, hand, but missed. I accept Dunn-Lawless’ evidence and find that shortly thereafter, the applicant hit Dunn-Lawless, twice to the left-hand side of his face. It took him a moment to regain his bearings thereafter. 2299 I am mindful of the fact that Ms McCallum made no reference to seeing the applicant hit Dunn-Lawless. As previously stated, I am satisfied that this was an altercation that unfolded quickly. Precisely what Ms McCallum saw would have been affected by her vantage point and where the applicant and Lloyd (and Dunn- Lawless) were positioned, relative to her, at various times, during that altercation. 2300 I consider it likely and find that during this period of time, Lloyd and the applicant were taking swings at each other, during which period at least one punch from Lloyd connected with the right side of the applicant’s face. I accept Dunn- Lawless’ evidence that he did not see this occur. This is readily explicable by the fact that this was a heated and frenzied situation, where things were happening very quickly. By this time, he was also endeavouring to protect himself. 2301 I accept Dunn-Lawless’ evidence and find that once he regained his bearings, he saw the applicant still swinging both of his arms in a round house motion, trying to hit both him and Lloyd, and that in response, he punched the applicant, once, on his face, near the left side of his nose, using his right fist. 2302 In this respect, Dunn-Lawless gave unchallenged evidence, which I accept, that he did judo until the age of 13, participated in rowing while at school and thereafter continued to attend at the gym, where he lifted weights, around two to four times a week. He also gave unchallenged evidence, which I accept, that at the time of the incident he weighed about 70 kg and was about 190 cm in height. I am therefore satisfied that he was about the same height as the applicant, but physically lighter. Notwithstanding this weight difference, I am satisfied that at the time of the incident, Dunn-Lawless had the physical capability and skill to fell the applicant with a punch to the face using his fist, particularly in circumstances where the applicant was intoxicated and therefore affected in his capacity to be fully aware of what was going on around him. 2303 I find that this punch caused the applicant to step or stumble backwards, as it was a significant punch. As a result, the applicant stopped swinging his arms, sat down on his haunches and the fight effectively stopped. -- 410 of 496 -- [2026] SADC 27 405 2304 I am satisfied and find that because the applicant was punched, at least twice, in the face, during the altercation, he sustained the facial injuries, as later identified in the CT scan undertaken at the RAH. 2305 I am unable to make a finding, on the evidence, that the applicant lost consciousness at any time during the incident. 2306 I accept the evidence of Dunn-Lawless and find that thereafter, the applicant immediately said words to the effect that he had been bottled. However, I am satisfied and find that the applicant was mistaken about this. I have no doubt and find that he was dazed, shocked and confused in the immediate aftermath of the incident, having regard to the injuries he sustained. This is consistent with Mr Heames’ description of the applicant ‘staggering’ towards the bricked area, after the incident. 2307 I consider it likely and find that the applicant’s mistaken belief that he was bottled arose in this context and was due to a combination of matters. Those matters include the frenzy of the altercation, the nature of the facial injury he suffered, his shock and confusion after being struck and the effect of his level of intoxication on his ability to properly perceive what was going on around him. 2308 It follows from these findings, that I am not satisfied that at any material time during the altercation, there was any express or implied agreement between Lloyd and Dunn-Lawless to assault the applicant. I am not satisfied that they acted together in concert towards a common end, being the assault of the applicant.1901 2309 After the incident, the applicant was bleeding profusely from his nose. He received assistance from multiple partygoers, including brief assistance from Dunn-Lawless. I am satisfied that he did not crawl through the garage drifting in and out of consciousness. Rather, he started staggering from the area on the grass at about H4 towards the bricked area at the rear of the pergola, where he was helped onto a chair, located under the pergola. 2310 Notwithstanding the evidence of Mr Eckert and Mrs Chattaway, I am satisfied, from the other evidence on this topic, that the applicant remained seated on that chair, under the pergola (not in the carport) until ambulance personnel arrived and he was conveyed from the premises, in the ambulance, to the RAH. 2311 I am satisfied that while being treated by ambulance personnel the applicant was coherent and responsive. Although he was bleeding heavily from the nose into his mouth, he was able to tell ambulance personnel what he thought had happened to him, that is, he thought that he had been hit in the face with a bottle. 2312 As previously explained, I am satisfied he was mistaken in that respect. 1901 The Koursk [1924] P 140. -- 411 of 496 -- [2026] SADC 27 406 The aftermath of the incident 2313 Lloyd and Dunn-Lawless left the party, with Ms McCallum, shortly after the incident. As previously stated, I consider Ms McCallum is mistaken in her recollection that before doing so, they had any discussion with Owen. 2314 I accept Dunn-Lawless’ evidence that they returned and sat in a parked car, up the street from the party, during which time Dunn-Lawless observed the ambulance arrive. As such, I am satisfied that the group returned to this location straight after they went to McDonalds,1902 rather than much later as initially described by Dunn-Lawless, noting the ambulance arrived at 11:05pm.1903 2315 After remaining in the car for some time – and after both the ambulance and police had left – Lloyd and Dunn-Lawless got out of the car and spoke to Owen outside the premises, during which they apologised for ruining the party. There was no reference made to bottles during this brief conversation. Liability – case against second respondent Battery, assault and/or negligence? 2316 The applicant’s pleaded claim against the second respondent relies on the torts of assault, battery and/or negligence. 2317 However, the same facts were relied upon as founding the basis of each cause of action, namely:1904 ... the applicant was struck to the face by the first respondent when he swung his right arm towards the applicant and hit him with a champagne bottle. The applicant was then struck twice on the right side of his face by a beer bottle being held by the second respondent. The applicant was then subsequently struck in the face by each of the first and second respondents ... 2318 The applicant pleads that such actions constituted either a ‘deliberate assault’ upon the applicant or an application of force resulting from their ‘negligent and/or reckless and/or excessive and/or indifferent actions’.1905 2319 The ‘actions’ described by the applicant in SOC at [5] would, if proved, amount to the commission of the tort of battery, rather than the tort of assault. 2320 A battery is a voluntary and positive act, done with the intention of causing contact with the body of another and which directly causes that contact. 1902 Noting that as a matter of general knowledge there is a McDonald’s located on the corner of Cross Road and Goodwood Road, only a very short distance from the premises. 1903 Exhibit P12. 1904 SOC at [5]. 1905 SOC at [6]. -- 412 of 496 -- [2026] SADC 27 407 2321 I adopt what was said by Judge Tilmouth in Crossley v State of South Australia, namely:1906 The common law has recognised over the centuries that the least intentional touching of another amounts to battery: Cole v Turner,1907 Stingel v Clark,1908 and Battiato v Lagana,1909 Carter v Walker.1910 The common law equally recognises that battery is constituted by striking another with a missile or instrument: Pursell v Horn,1911 McHale v Watson,1912 Darby v DPP.1913 Battery is fully constituted without requiring proof of damage: Wilson v Pringle.1914 2322 There is no requirement to prove that the defendant intended to cause the plaintiff any harm or damage as a result of the contact.1915 2323 The tort of assault requires there to be a physical act or verbal statement (or both) made by a defendant which directly produces apprehension in a plaintiff that a battery is likely to be committed. It is irrelevant whether, in fact, there was any intention to commit the actual battery. 1916 2324 The second respondent acknowledged, and I have found, that he voluntarily and intentionally caused direct physical contact with the applicant, that is, by striking him, with his right fist, to the left side of his nose. 2325 The admitted actions of the second respondent, prima facie, constitute a battery at law. 2326 The second respondent gave evidence that prior to punching the applicant in the face, he was unsuccessful in a similar attempt to punch him. I accept that evidence. If the applicant was aware of this attempted unsuccessful punch made in his direction, such that he was put in fear or apprehension that physical conduct would occur, then this act would constitute the tort of assault. However, there was no evidence from the applicant about any physical act or verbal statement made by the second respondent which put him in fear of an imminent battery, save and except for his description of the second respondent, in fact, motioning to and then striking him with a bottle. As previously outlined, I have rejected that evidence. 2327 Although the second respondent’s admitted action, in motioning to punch the applicant, but failing to connect, may technically amount to the tort of assault, the applicant’s claim was for damages for personal injury. The claim was not pleaded (or run) on the basis that the applicant sustained any personal injury from 1906 [2020] SADC 14 at [81]. 1907 (1704) 6 Mod Rep 149; 87 ER 907. 1908 (2006) 226 CLR 442, [97], and the authorities referred to in footnote 111. 1909 [1992] 2 Qd R 234, 236. 1910 (2010) 32 VR1, [15]. 1911 (1838) 8 Ad & El 602 at 604. 1912 (1964) 111 CLR 384 at 388. 1913 (2004) 61 NSWLR 558 at [73]. 1914 [1987] QB 237, 252. 1915 Cowell v Corrective Services Commission of NSW (1988) 13 NSWLR 714,743. 1916 White & Ors v State of South Australia (2010) 106 SASR 521 at [363]. -- 413 of 496 -- [2026] SADC 27 408 being put in fear or apprehension of any imminent battery, rather the applicant claims damages for the injuries he claims to have sustained arising out of the physical contact comprising the actions as pleaded at SOC [5]. 2328 In my view, as the second respondent’s admitted actions comprise a battery at law, there is no work to be done by any alternative claim based on the tort of assault. 2329 The third cause of action relied upon by the applicant, pleaded in the alternative, was a claim in negligence. That claim was based on the same facts as the claim founded in assault and battery. As previously stated, the second respondent admitted and I have found, that he intentionally punched the applicant. I note what was said in Croucher v Cachia, namely:1917 Although battery is an intentional tort, a battery may occur when the defendant is merely negligent. It was in those circumstances that a unanimous High Court said in Williams v Milotin that, ‘it happens in this case that the actual facts will or may fulfil the requirements of each cause of action (that is, battery and negligence). 2330 I adopt the reasoning of Judge Tilmouth in Crossley,1918 namely that as the battery was intentional, there is no need to consider the alternative cause of action in negligence. Self-defence 2331 For the second respondent to avoid liability to the applicant for the tort of battery, he must prove, on the balance of probabilities, that his actions were justified.1919 2332 The second respondent pleads:1920 c. the Applicant was the aggressor who initiated the incident; d. that the Second Respondent acted in self-defence; e. that his actions were reasonable, warranted and exercised in proportion to the direct threat posed to his safety by the violent actions of the Applicant; f. that he denies his actions were negligent, excessive, reckless or indifferent in the circumstances; g. the Applicant was wholly responsible for the incident ... 1917 (2016) 95 NSWLR 117 at [22]. 1918 [2020] SADC 14 at [130]. 1919 Walker v Hamm [2008] VSC 596 at [37]. 1920 FDN 103 at [5]. -- 414 of 496 -- [2026] SADC 27 409 2333 Self-defence, extended to include the defence of another, is a defence to the torts of battery and assault.1921 2334 The applicant did not dispute the submissions made by the second respondent as to the applicable law relating to self-defence.1922 That is, that the relevant test is that as set out in Zecevic v Director of Public Prosecutions (Victoria) (Zecevic), namely: 1923 The question to be asked is in the end quite simple. It is whether the accused believed on reasonable grounds that it was necessary in self-defence to do what he did. 2335 There are two components to the defence:1924 1. the second respondent must have genuinely believed that his actions were necessary in self-defence. This component relates to the second respondent’s subjective belief; and 2. he must have had reasonable grounds to hold that genuine belief. 2336 In considering the first component, the practical rules as outlined by Wells J in Morgan v Colman are of assistance, namely:1925 (a) Defence means defence; a person who claims to have been acting in self-defence must have acted, and believed himself to have been acting, in defence. To engage willingly in combat is not acting in self-defence. (b) Self-defence can never be made to cover for aggression; if a person provokes, or deliberately leads, another to attach him, and he then uses that attack as an excuse or pretext for attacking the other person, he cannot cry defence. (c) Self-defence can never be called in aid to justify retaliation or revenge if the danger is over, and the occasion for self-defence is at an end. (d) A person who, according to the circumstances as he understands them, genuinely believes he is threatened with an attack, he is not obliged to wait until the attack begins. A person so threatened may use reasonable measures to make the situation safe and does not act unlawfully merely because he forestalls or tries to forestall the attack before it has begun. 2337 The second component requires the second respondent’s belief to be based on reasonable grounds. This is not to be determined by what a hypothetical, reasonable person may have believed. Rather, what must be determined is whether 1921 Pearce v Hallett [1969] SASR 413, 426-427 per Bray CJ, adopting what was said by Richards J in Saler v Klingbiel (1945) SASR 171, 174, namely, ‘Every man has the right of defending any man by reasonable force against unlawful force.’ 1922 FDN 329 at [10]. 1923 (1987) 162 CLR 645, 661. 1924 State of New South Wales v McMaster [2015] NSWCA 228. Noting these components differ slightly from what is set out in s 15(1) of the Criminal Law Consolidation Act 1935, albeit the defence at common law ultimately requires very similar considerations. 1925 (1981) 27 SASR 334, 336-337. -- 415 of 496 -- [2026] SADC 27 410 the second respondent had reasonable grounds for his belief, in the circumstances as he perceived them to be. 2338 The proportionality of the force used is factually relevant but not necessarily determinative as to whether self-defence is made out. It is one factor to take into account when determining whether the second respondent believed his actions were necessary. As set forth in Zecevic:1926 ... it will in many cases be appropriate for a jury to be told that, in determining whether the accused believed that his actions were necessary in order to defend himself and whether he held that belief on reasonable grounds, it should consider whether the force used by the accused was proportionate to the threat offered. However, the whole of the circumstances should be considered, of which the degree of force used may be only part. 2339 It is alleged by the applicant that the degree of force used by the second respondent was excessive. As outlined by Beazley J in State of New South Wales v McMaster:1927 ... Excessive force, by the very reason of it being excessive, would generally go beyond what was reasonably necessary, so that the defence would fail. But it all depends on the circumstances. The position was well stated by Hunt CJ at CL in R v Lean (1993) 66 A Crim R 296 at 298: ... that the question of whether the force used by the accused was proportionate to the threat offered is only one of evidence, and there is no rule of law that the use of excessive force necessarily establishes that the accused did not act in self-defence. 2340 As to the first (subjective) component, I accept the evidence given by Dunn- Lawless that he entered the altercation after the applicant had struck Lloyd in the face. Although the first swing Dunn-Lawless made towards the applicant missed, I accept his evidence that he did this as a means of preventing the applicant from continuing to assault Lloyd.1928 I am therefore satisfied that at the time Dunn- Lawless entered the altercation, he subjectively believed his actions were necessary for his own defence, and/or in defence of Lloyd. He did not engage willingly in the combat. 2341 Dunn-Lawless was then struck in the face by the applicant. I accept his evidence that after he regained his bearings, he saw the applicant was still swinging both of his arms in roundhouse striking motions. It was only thereafter that Dunn- Lawless punched the applicant, with his right fist, in the face. 2342 Although Lloyd must have punched the applicant in the face some time prior to Dunn-Lawless delivering this blow. I accept Dunn-Lawless’ evidence that he did not see this. I also accept his evidence that the applicant was still continuing to fight them, before he punched him. 1926 (1987) 162 CLR 645, 662. 1927 [2015] NSWCA 228 at [173]. 1928 T 329.14-16; T 426.2-3. -- 416 of 496 -- [2026] SADC 27 411 2343 The evidence given by Dunn-Lawless as to why he punched the applicant was rigorously tested under cross-examination. However, it was never suggested to Dunn-Lawless that when he struck the applicant, he did not hold the belief that the applicant was going to continue to attack both him and Lloyd. 2344 I accept Dunn-Lawless’ evidence that at the time he punched the applicant he was trying to defend both himself and Lloyd, as he thought the applicant was going to continue to attack them, in circumstances where he was continuing to swing his arms, in the direction of both of them.1929 2345 I am therefore satisfied that at the time Dunn-Lawless punched the applicant in the face, he subjectively believed his actions were necessary for his own defence, and/or in defence of Lloyd. I am satisfied that at that time, Dunn-Lawless subjectively believed that the danger posed by the applicant was not over and was continuing. 2346 As to the second (objective) component, when considering whether this belief was held on reasonable grounds, regard must be had to the situation in which the second respondent found himself. That is, the Court must consider whether that situation was such that it offered little opportunity for calm deliberation and reflection, or the opportunity to weigh precisely the exact measure of defensive action required.1930 2347 As previously stated, I am satisfied that the incident itself unfolded rapidly. Although I am satisfied that Lloyd punched the applicant in the face before Dunn- Lawless punched the applicant in the face, I am satisfied that Lloyd’s punch did not prevent the applicant from continuing to fight. 2348 The applicant was both taller and heavier than Lloyd. Dunn-Lawless had seen the applicant punch Lloyd, causing him to stagger backwards. He had, himself, been punched twice by the applicant. He saw the applicant still swinging his arms. 2349 I am satisfied that in these circumstances, it was reasonable for Dunn- Lawless to believe that there was a continuing threat that the applicant would either punch him again in the face, or that the applicant would again punch Lloyd in the head. I am also satisfied that it was reasonable for him to believe that unless he took some defensive action, that threat, to both himself, and to Lloyd, would continue. 2350 The defensive action taken by Dunn-Lawless was to punch the applicant in the face. 2351 In many of the applicant’s submissions, emphasis was placed on the outcome of Dunn-Lawless’ actions, that is the fact the applicant suffered significant facial fractures, demonstrated that the force he had used was excessive. However, this 1929 T 396.34-37; T 397.15-17; T 425.31. 1930 Watkins v State of Victoria & Ors (2010) 27 VR 543 at [72]. -- 417 of 496 -- [2026] SADC 27 412 conflates two concepts, the issues of causation and proportionality. The fact a significant injury may arise from the act in question does not necessarily mean that the force used in that act was excessive. The outcome of any such act may be a matter of happenstance, with a multitude of factors combining to cause that outcome. 2352 The altercation was unfolding at a rapid pace. Dunn-Lawless responded to the ongoing threat that the applicant would punch either him or Lloyd in the face or head, by punching the applicant in the face with a blow of moderate force. The blow made a solid connection with the applicant’s face, however, precisely where the punch landed was likely a matter of chance and dependant on precisely what angle the applicant’s face was (and/or whether he turned at all) just prior to the blow landing. 2353 I am satisfied and find that the defensive action taken by Dunn-Lawless was proportionate to the continuing threat he reasonably believed was posed by the applicant. Summary 2354 I am therefore satisfied and find, consistent with the second-respondent’s defence, that: 1. the applicant was the aggressor who initiated the incident; 2. Dunn-Lawless responded by acting in self-defence - initially in defence of Lloyd and ultimately in defence of both himself and of Lloyd; and 3. the action taken by the second respondent, in punching the applicant in the face, was reasonable, warranted and exercised in proportion to the direct threat posed to his and/or Lloyd’s safety by the applicant. 2355 The applicant has failed to prove a cause of action against the second respondent. Liability – case against third and fourth respondents General 2356 The applicant’s pleaded cause of action against the third and fourth respondents is in negligence. 2357 To establish a claim in negligence against the third and fourth respondents, the applicant must prove on the balance of probabilities that the third and fourth respondents owed the applicant a duty of care; that the third and fourth respondents breached that duty of care; and that he suffered damage which was caused by that breach of duty and was not too remote in law. 2358 I refer to my previous findings of fact with respect to the incident. -- 418 of 496 -- [2026] SADC 27 413 2359 I am satisfied that Lloyd pushed the applicant while he was urinating at the back fence, being an act of stupidity. The applicant then responded with aggression. He lifted Lloyd from behind in a ‘bear hug’ and then punched him in the head. It was that punch which prompted Dunn-Lawless to intervene to protect Lloyd. During the subsequent fight, the applicant was punched once by Lloyd and once by Dunn-Lawless, sustaining the facial injuries as outlined at paragraph 754 herein. 2360 The applicant submitted that he suffered harm arising from the third and fourth respondents’ failure to exercise their duty to control their guests, for example, by actively supervising guests’ alcohol consumption (particularly with respect to under 18s), monitoring who was in attendance and removing Lloyd from the party in circumstances where he was a known troublemaker. In addition, it was submitted that if the third and fourth respondents were properly exercising their duty of care, they would have intervened from the very first ‘shove’, thus preventing that shove from escalating into something more serious. 2361 I have considered any liability of the third and fourth respondents both in the context of the findings made by me, as to both the party and the incident. For the sake of completeness, I have also considered their liability if, as alleged by the applicant, he was struck with bottles during the incident by the first and second respondents in an unprovoked attack. Pleadings 2362 It is alleged that the third and fourth respondents were negligent in that they:1931 9.1 failed to keep any or adequate lookout; 9.2 permitted the first and second respondents to remain on the premises when there was a foreseeable risk that they may behave in a disorderly and offensive manner; 9.3 failed to ensure that the premises were secure and the birthday party was conducted in a safe and non-dangerous environment and failed to ensure any or any adequate security for the purposes of the birthday party particularly when the party involved the provision and consumption of alcohol; 9.4 failed by not having the first and second respondents removed from the premises. 2363 In their defence, the third and fourth respondents deny that they were negligent, whether as pleaded or at all, and say:1932 (a) throughout the course of the birthday party they prepared food for the guests including food cooked on the barbecue;1933 1931 FDN 94 at [9]. 1932 FDN 98 at [3]. 1933 I made a factual finding to this effect at [2152] and [2158]. -- 419 of 496 -- [2026] SADC 27 414 (b) throughout the course of the birthday party they supplied soft drinks and water to the guests;1934 (c) they did not supply any alcohol to any of the guests;1935 (d) they and two other adult couples were present at the premises to supply food and non- alcoholic beverages and provide supervision as required;1936 (e) entry to the premises was only through the household of the Third and Fourth Respondents;1937 (f) during the course of the evening they regularly went into the backyard area where the birthday party was being held to remove rubbish and replenish snack food;1938 (g) they maintained a view of the backyard of the premises where the birthday party was held; (h) at no time prior to the Applicant suffering a physical injury on 5 December 2010 was there any aggressive or violent behaviour by any of the guests including either one or both of the First and Second Respondents;1939 (i) at no time prior to the Applicant suffering a physical injury on 5 December 2010 did any of the guests including the First and Second Respondents behave in a disorderly or offensive manner;1940 (j) at no time prior to the Applicant suffering a physical injury on 5 December 2010 was there any reason for the First and/or Second Respondents to be removed from the premises. Duty of care General observations 2364 The starting point in any claim for damages for negligence is to establish whether the respondents owed a duty of care to the applicant and if so, what was the extent (or scope) of that duty of care. 2365 The third and fourth respondents were the occupiers of the premises. 2366 Section 20 of the Civil Liability Act (SA) 1936 (CLA) deals with an occupier’s duty of care. Pursuant to that section, the third and fourth respondents owed the applicant a duty to take reasonable care to prevent him from suffering from injury, loss or damage attributable to the dangerous state or condition of the premises. It was not argued that any injury, loss or damage suffered by the applicant was attributable to the dangerous state or condition of the premises. 1934 I made a factual finding to this effect at [2154]. 1935 I made a factual finding to this effect (relevant to the young guests) at [2154]. 1936 See factual findings at [2175] and [2183]. 1937 See factual finding at [2169]. 1938 See factual findings at [2177]-[2178]. 1939 I made a factual finding to this effect at [2242]-[2243]. 1940 See factual findings at [2243]. -- 420 of 496 -- [2026] SADC 27 415 2367 As to whether the scope of any duty of care owed by the third and fourth respondents to the applicant extended beyond this statutory duty, regard must be had to the common law. 2368 In his closing address, Senior Counsel for the applicant articulated the scope of the duty of care he claimed was owed to the applicant by the third and fourth respondents as being a duty to prevent a fight breaking out (at the premises) or to intervene in the course of a fight breaking out having regard to the particular circumstances in which that fight occurred (the specified duty of care).1941 2369 The third and fourth respondents denied the existence of any such duty of care at law. The law 2370 I was directed to a volume of authorities, many of which can be factually distinguished from the within matter but provide some assistance in understanding whether the circumstances of this case are such as to impose upon the third and fourth respondents a duty of care of the type as specified by the applicant. 2371 The starting point is what was said by Dixon J in Smith v Luhrs, namely:1942 It is, however, exceptional to find in the law a duty to control another’s actions to prevent harm to strangers. The general rule is that one man is under no duty of controlling another man to prevent him doing damage to a third. There are, however, special relations which are the source of a duty of this nature. It appears now to be recognised that it is incumbent upon a parent who maintains control over a young child to take reasonable care so to exercise that control as to avoid conduct on his part exposing the person or property of others to unreasonable danger. 2372 As outlined by Gleeson CJ in Modbury Triangle Shopping Centre Pty Limited v Anzil and Another (Modbury Triangle),1943 the unpredictability of criminal behaviour is one of the reasons why, as a general rule, in the absence of there being some special relationship, the law does not impose a duty to prevent harm to another by the criminal conduct of a third party, even if the risk of harm is foreseeable. Examples of such special relationships are those of employer and employee, school and pupil and bailor and bailee. 2373 However, the applicant submitted that in the specific circumstances of this case, there was a special relationship between the third and fourth respondents and the applicant which took the case outside of the operation of the general rule, that being a special relationship involving a duty to control another’s actions.1944 It was specifically argued, albeit not specifically pleaded, that the third and fourth respondents had a duty to take reasonable steps to control the behaviour of their 1941 T 1791.15-21. 1942 (1945) 70 CLR 256 at [262]. 1943 [2000] 205 CLR 254 at [29]. 1944 Noting that control was relied upon as providing the basis for liability in Dorset Yacht Co Ltd v Home Office [1970] AC 1004. -- 421 of 496 -- [2026] SADC 27 416 guests. Indeed, the third and fourth respondents had purported to exercise control over who could attend the party and for what purposes, as outlined in the invitation. 2374 There are several interstate authorities dealing with injuries sustained by party guests and the scope of any duty of care owed by the occupiers of the party premises, to such guests. Both parties referred to and relied upon the decisions of the New South Wales Court of Appeal in Parissis,1945 and the Court of Appeal of the Supreme Court of Queensland in Ryan,1946 albeit for different purposes. 2375 The applicant distinguished the circumstances of this case from those in both Parissis and Ryan but relied upon the reasoning therein as providing general support for the proposition that the specified duty of care was owed by the third and fourth respondents to the applicant. 2376 Ryan’s case involved a party hosted on the appellants’ property where a guest, the first respondent, sustained severe burns when another guest poured fuel onto his clothing and then used a cigarette lighter to ignite that fuel. The fuel had been brought onto the property by the appellants. The issue for determination was whether by bringing fuel onto their property, the appellants had created a special danger giving rise to an exception to the general rule that there was no duty of care imposed on someone to prevent harm caused by the deliberate, criminal conduct of a third party.1947 2377 Ultimately the Queensland Court of Appeal overturned the trial judge’s finding that the case fell within the exception insofar as the appellants had created a situation of special danger by introducing the fuel from a remote location to the party area where there was always a prospect that an intoxicated irrational person may start a fire. 2378 The applicant did not suggest that any special danger arose in this case. Rather, the applicant referred to McMurdo J’s reasoning in Ryan, insofar as the judge specifically noted that in that case, it was no part of the duty of care pleaded against the appellants that they controlled, or were bound to control, the conduct of their guests or to take reasonable steps to do so. It was not pleaded that the appellants had been negligent by not doing so. The trial judge had not made any finding that the appellants had the capacity to control the behaviour of unruly guests. This was said to be in direct contrast to the circumstances in this case. 2379 McMurdo J stated:1948 1945 [2004] NSWCA 373. 1946 [2023] QCA 20. 1947 Such an exception being of the type recognised by Dixon J in Smith v Leurs (1945) 70 CLR 256 at [261]-[262]. 1948 Ryan at [34]. -- 422 of 496 -- [2026] SADC 27 417 ... Outside cases of a special relationship, in a case in which a defendant is rendered liable for facilitating a third party harming another, the defendant’s liability is for more than mere inaction. 2380 She went on to explain why the trial judge was in error in finding that the appellants had created a ‘special danger’ in that case. She stated:1949 As Gleeson CJ said in Modbury, the general rule is founded upon considerations of practicality and fairness. If occupiers were under a legal duty to take steps to prevent harm being caused to another by a third party from the misuse of things kept in an ordinary way on their properties, the burden would be intolerable. 2381 Senior Counsel for the applicant submitted that this effectively represented the ratio in Ryan, meaning the case was distinguishable from the subject case. 2382 The third and fourth respondents argued that Ryan simply stood for the proposition that the scope of any duty of care owed by an occupier to a guest at a private party held on the premises, did not extend to protecting that guest from the criminal conduct of another person over whom they had no control. 2383 In Parissis, the property owners allowed their 18-year-old son to host a barbecue for guests aged between the ages of 17 to 25. The hosts used a bottle of methylated spirits to start a barbecue during the party and then removed the bottle by placing it in the garage. There had been some controls placed on guests by the hosts who had stipulated that guests were only to bring light beer, however the guests did not comply with that rule and brought champagne and spirits to the party. This must have been known by the hosts. Notwithstanding this, the hosts left the party, and when they returned, perceiving everything to be in order, went to bed. The party was still going and guests were ‘out of it, doing silly things’ and ‘pretty drunk’. This must have been apparent to the hosts. 2384 At about 2:00am, attempts were made to reignite the barbecue. One of the guests took the bottle of methylated spirits from the garage. Several guests then poured methylated spirits onto the barbecue, including a Mr Karas, who was affected by alcohol. He did so notwithstanding he was warned by others that this could result in an explosion. He did not heed the warnings and continued to throw methylated spirits onto the fire, resulting in an explosion, which caused injuries to a 17-year-old guest. 2385 It was submitted on appeal that the circumstances in that case gave rise to a duty of care on the occupier hosts. Those circumstances included that the hosts permitted the young guests to have a barbecue and knew that methylated spirits had been used to light that barbecue. The hosts must have known that the guests were drinking spirits and had not complied with her condition that only light beer 1949 Ibid at [40]. -- 423 of 496 -- [2026] SADC 27 418 be consumed. They must have seen that the guests were affected by alcohol. Senior Counsel in that case contended:1950 ... that in these circumstances there was a duty of care on Mrs Parissis who permitted the premises to be used for drinking activity by young people, one of whom was under eighteen years of age and others up to twenty-five years of age, who were considered to need supervision; that she had a duty to take some care to look after these people in their drunken state. The breach of duty and the causation were that Mrs Parissis and Ms Madias retired to bed and did not maintain supervision by keeping an eye on the guests from time to time to see how they were going. There was a duty constantly to supervise the guests for the whole of the evening so as to ensure that, if there was any indication of any unruly behaviour, the occupiers could stop the unruly behaviour before it caused problems. 2386 Bryson JA disagreed. He outlined that the conduct of Mr Karas, in repeatedly throwing the methylated spirits on the barbecue, despite it not igniting, was very different from the method used to start the barbecue, in the first place. What Mr Karas did was of an entirely different character and created an obvious risk of danger for which Mr Karas had been warned by other adult guests present. 2387 It was submitted in Parissis that the risk of there being some unruly behaviour resulting in personal injury was reasonably foreseeable as the guests were still drinking. As such, the hosts had been negligent in going to bed and leaving the guests unsupervised. It was submitted that had the hosts properly supervised the party, they could have counselled and warned against unruly behaviour and required guests to leave. It was submitted a warning from the hosts would have carried more weight than warnings from other guests which were potentially interpreted as a challenge to merely continue the behaviour. 2388 In effect, it was argued, as was argued in this case, that in all of the circumstances, the hosts had a duty to control the actions and behaviour of those who were invited onto the premises, which duty they had failed to uphold. 2389 In rejecting these submissions, Bryson JA placed emphasis on the concept of foreseeability. He said:1951 In my opinion John Karas’ behaviour and the explosion were events of a completely different kind to horseplay or unruly behaviour by young adults at a social function where alcohol is plentiful. Young guests in liquor might well be unruly; it is not in my opinion in the foreseeable range that they will behave with criminal negligence and persist against warnings. Horesplay, leap frogging, dancing on tables, swinging on tree branches and arm wrestling are in one class of unruly behaviour; throwing methylated spirits from a bottle containing several inches of methylated spirits on a barbecue where there is some ignition is behaviour of a completely different order, obviously grossly dangerous to life and limb. It involves the crime of causing grievous bodily harm by negligent act contrary to s.54 of the Crimes Act 1990, and is not within the kind of unruly behaviour which young adults might reasonably be foreseen to engage in at a social function in a suburban backyard. A person of whom such behaviour is foreseeable could be dealt with only by not including him in a social function at all; he could be left to seek the company of those whom all 1950 Ibid at [46]. 1951 Ibid at [52]. -- 424 of 496 -- [2026] SADC 27 419 reasonable people avoid, who light throw bottles and glasses at other guests or bring pet snakes or hand grenades to social events. 2390 Senior Counsel for the applicant highlighted that a significant finding made by Bryson JA, which distinguished Parissis from this case, was that very little was stated in that case about whether and how the hosts had control, or the opportunity to exercise control, over events at the function, particularly the events in which the barbecue was relit. Bryson JA had stated, ‘There was no examination of the means of control available such as requiring guests to leave, forbidding or preventing the barbecue from being relit, or locking away methylated spirits, or of circumstances which reasonably required the [hosts] to take some such measure.’1952 2391 Senior Counsel for the applicant submitted that the same could not be said in this case. The third and fourth respondents had the ability to control their guests’ behaviour and attendance and had purported to exercise control over them. As such, they had a duty, as occupiers, with that element of control, to prevent fights between the guests. 2392 It was submitted that such duty was to be exercised ‘by virtue of a degree of supervision’.1953 It was submitted that if there had been any degree of supervision and control by the fourth respondent, or even Owen, ‘one would have expected there to be immediately an interposition in respect of the competing persons’.1954 It was submitted that the very fact neither Owen, nor the third and fourth respondents were aware of the incident until after it had ended was because of the fact there was no degree of supervision.1955 2393 It was submitted that had the duty been exercised, by an appropriate degree of supervision, the fact of the ensuing incident should have become apparent when the applicant was first shoved from behind when urinating at the fence, and that thereafter, intervention should have occurred, thus preventing the escalation of the incident thereafter.1956 Senior Counsel submitted:1957 MR OWER: … And from that moment on, with each increasing step of the fight, whether it took two minutes, five minutes or 15 minutes, that duty was imposed to continually then intervene and exercise a degree of control. And the degree of control is not a harsh degree of control, it's not a high level of control, it could be no more than Mr Tony Stankiewicz attending and saying 'Stop it. Hey, what are you doing'. 2394 It was acknowledged that there was no evidence that anyone at the party, save for Ms McCallum, observed anything that required anyone to intervene. However, it was submitted that this was because the third and fourth respondents had failed 1952 Ibid at [38]. 1953 T 1801.12. 1954 T 1801.24-26. 1955 T 1801.33-34. 1956 T 1802.1-11. 1957 T 1802.8-15. -- 425 of 496 -- [2026] SADC 27 420 in their duty. The reason they had not seen anything was because they were not properly exercising their duty by having a ‘reasonable degree of supervision’. They should have been ‘sitting outside and observing this group of inebriated teenagers behave.’1958 The following exchange then occurred:1959 HER HONOUR: Do you say they should have had someone in the corner, where the boys were urinating? MR OWER: The house, in my submission on the evidence, is not so large as to warrant multiple persons having a multiple lookout. It's an ordinary suburban backyard, it has perhaps two features, the backyard and the pool. However, one person maintaining a reasonable degree of lookout would have observed this fight in my submission. It cannot be said - and I don't know whether I have misunderstood your Honour's question - but the simple fact that it occurred in perhaps a darkened corner, away from the mainstream of the party, meant that it was outside the area of supervision. We say that that's very much within the zone. This house was not that big, it wasn't a premises from which if you sat in the middle, at the table, for example, where I think the witnesses stated that there was in fact the centrality, or at least Mr Chattaway's party, you would not be able to see what was going on. But of course that, to my mind, doesn't go to the question of whether or not there was a duty and a degree of control, it goes to the failure in the particular circumstance. Because this is not a case put against us that Mr Stankiewicz was there, and he was exhibiting a degree of control, he just didn't happen to see this particular fight because he was picking up the cups and washing them. His case is that 'Well we weren't - these were all responsible adults, I left it to Owen', those were the persons who were in control, and he didn't regard it as any part of his responsibility, we say, to exercise control. So I think that submission answers, well at least purports to answer your Honour's concerns. It's not a case where Mr Stankiewicz says 'Well, I tried to exercise a degree of control, but I couldn't see them because they were in the corner, and I didn't know what was going on.' The failure we say is more blatant than that, no-one was making any attempt to exercise control in the particular circumstances. And it's a case where if there had been, there would have been factual causation, or a prevention of factual causation, because it was likely that the fight would have then stopped, or certainly not escalated to the point where bottles were being used. 2395 It was submitted that the existence of the specified duty was supported by the reasoning of Bryson JA in Parissis, insofar as it was the very fact that the appellants lacked a means of control over the conduct of Mr Karas which was 1958 T 1802.18-29. 1959 T 1802.30-1803.34. -- 426 of 496 -- [2026] SADC 27 421 relied upon as a basis to decline to impose a duty of care in the terms as articulated by the respondent. Bryson JA said:1960 Effectual means of control were absent even though some measures which it can be supposed the appellants might have taken would or could have diminished the likelihood of grossly dangerous and criminally irresponsible behaviour on the part of John Karas. It might be that if Mrs Parissis and Ms Madias had stayed awake for an hour or two longer than they wished to, and had spoken warnings to John Karas, they might have influenced him against doing what he did; but he had warnings from other adults, and the warnings were superfluous as he must have known the danger of what he was doing. The concept of control is considerably strained if control is imputed to the appellants because of the opportunity, such as it was, that the occupiers had to influence events. The attribution to the occupiers of control over the activity which took place would plainly be fictional. There was no element of control over the activity which actually took place. ... What excludes criminal behaviour from the occupier’s responsibility is not specifically its criminality but its extreme nature in relation to what the occupier could reasonably foresee and should reasonably control. When behaviour is extremely unlikely, extremely irresponsible or otherwise extreme it may be beyond the limits of the occupier’s responsibility whether or not on close consideration it is subject to some criminal sanction. Extreme behaviour cannot be reasonably foreseeable either because 1) the risk is reasonably foreseeable but the maturation if the risk depends on criminal behaviour; or 2) the risk is not reasonably foreseeable because the maturation of the risk depends on unpredictable criminal behaviour. If behaviour is unpredictable, the harmful outcome of the maturation of the risk may not be reasonably foreseeable. John Karas’ conduct was obviously extremely dangerous, and this must have been obvious to him, and that in my mind is enough to place his conduct outside the range of the occupiers’ liability whether or not it is strictly shown to have been criminal behaviour. The unpredictability of John Karas’ behaviour is one of the reasons, and is at the centre of the reasons why a duty was not imposed, even if the risk of harm was reasonably foreseeable. (my emphasis). 2396 It was submitted that the circumstances in Parissis were therefore very different from those in this case. Senior Counsel for the applicant submitted:1961 MR OWER: That's very different, we say, from inviting a lot of 17 and 18 year olds around, having a limited list of attendees for security purposes, serving them alcohol and then leaving them to their own devices. There is an effective degree of control over fights and that is no more than supervising and stepping up, as one would expect a father to do in any particular circumstances where his son's 18th birthday is going awry and there was a total abdication of that by the occupiers. 2397 He submitted that a fight between drunken teenage boys, in these circumstances, could not be regarded as extreme in terms of its irresponsibility or unlikeliness and was, in fact, extremely likely in the circumstances as they were at this party. This could be contrasted with a situation where, for example someone unexpectedly drew a gun and shot someone. It was submitted that unlike Parissis, this was a case where there was an element of control and the risk of harm was 1960 Parissis at [57] and [60]. 1961 T 1805.36-1806.6. -- 427 of 496 -- [2026] SADC 27 422 foreseeable, such that the Court should impose a duty of care of the scope as specified. 2398 The third and fourth respondents submitted simply that Parissis and others demonstrated that in fact, the relationship between an occupier and their guests at a private party, did not rise to the level of any special relationship sufficient to take it outside of the operation of the general rule. 2399 The argument made by the applicant was very similar to that as argued unsuccessfully in Hodge v Barham.1962 The plaintiff was a 17-year-old guest at a 21st birthday party held for the second defendant at the home of his mother, the first defendant. There was a disc jockey playing music at the party in the corner of a patio area which was being used as a dance floor. About 10 m away from the patio was a bar where guests could order drinks from a barman (including alcoholic drinks). 2400 The plaintiff was injured when she was walking across the patio. The second defendant, who was intoxicated, grabbed her as she walked past him to try to persuade her to dance. In doing so, he fell on the plaintiff, causing her to fall to the ground. She put her right wrist out to break the fall and landed on some broken glass. She lacerated her wrist and suffered significant damage to a nerve and tendons in her right hand and wrist. 2401 There were a number of important findings of fact made by the trial judge in that case, which bear some resemblance and/or similarity to those made by me. 2402 Those findings of fact included that the outdoor area of the premises was not large but not to such an extent that the area was too small for the number of guests (estimated at around 60 to 70 people). It was crowded but not any more crowded than many other similar birthday parties. 2403 In that case, alcohol was provided by the hosts to party guests, together with water, soft drink and a reasonable amount of food. The hosts placed no limits on what alcohol was consumed by the guests. The second defendant drank a considerable amount of alcohol and was exhibiting signs of being intoxicated (slurring his words, unsteady on his feet). However, he was not behaving in an offensive way or in a way that obviously posed a risk to his or others’ safety or wellbeing. 2404 The fact of the second defendant’s intoxication caused or contributed to him losing his balance and falling on the plaintiff. 2405 There were no tables outside for guests to put their glasses or bottles on. As such, these were being placed on the ground by guests, particularly in the vicinity of the patio. 1962 [2011] WADC 71. -- 428 of 496 -- [2026] SADC 27 423 2406 During the party the hosts did not allocate specific tasks to each other but did do some cleaning up during the party including of used and disposed bottles. At one stage, the hosts were made aware of and cleaned up some broken glass outside. However, the hosts did not observe any broken glass on the ground inside or outside the house on any other occasion, nor were they made aware of the same. 2407 The glass the plaintiff fell on was on the edge of the patio adjacent to a garden bed and was not readily visible at the time of the accident. 2408 The plaintiff’s case was that the first defendant owed her a duty to take reasonable care to prevent injury being caused to her by violent, quarrelsome or disorderly conduct of the second defendant. It was argued that the first defendant owed this duty of care to the plaintiff because the relationship between the first defendant as host and controller of the party and the plaintiff as an invitee was such that a reasonable person in the first defendant’s position would foresee that a failure on her part to control the conduct of the second defendant would expose the plaintiff to the risk of injury of the type she ultimately suffered. 2409 As in the subject case, the plaintiff sought to define the scope of the duty of care by reference to its breach. That is, there was a duty of care to control the conduct of the second defendant, in circumstances where it was foreseeable that a failure to exercise that duty would expose the plaintiff to a foreseeable risk of injury. 2410 As in the subject case, counsel for the plaintiff acknowledged the relationship between the host and the plaintiff, on the night of the party, did not fall within a recognised category of relationship in which it was specified that such a duty of care existed. However, it was submitted, as in the subject case, that the question of whether a duty of care existed should be determined ‘ad hoc’ and simply because there was a finding in that case that the host owed the plaintiff such a duty, did not mean every host of every birthday party owed its guests a similar duty. It all depended on the circumstances. 2411 Derrick DCJ noted that as such, it is necessary to consider whether there were a sufficient number of salient features which combined to constitute a sufficiently close relationship between the plaintiff and the host to give rise to the alleged duty of care. Those salient features which had been present in other cases where the court had found there were sufficient features to give rise to a duty of care were:1963 (1) The alleged duty related to a positive act as opposed to a mere failure to act; (2) The harm suffered by the plaintiff was a direct result of the conduct of the defendant; (3) The defendant assumed responsibility for preventing injury to the plaintiff; (4) The defendant knew or ought to have known of the risk of injury to the plaintiff; 1963 Ibid at [159]. -- 429 of 496 -- [2026] SADC 27 424 (5) The defendant had the ability to control the risk of injury to the plaintiff; (6) The plaintiff placed reliance on the relevant conduct of the defendant; (7) The plaintiff was vulnerable to the risk of injury from the defendant’s conduct, that is, the plaintiff was not able to protect him or herself from the defendant’s want of reasonable care either entirely or in a way that would cast the consequences of loss on the defendant; and (8) The plaintiff’s vulnerability, if any, was the result of something done by the defendant ... 2412 The alleged duty did relate to an obligation on the host to perform a positive act, that is, to control the behaviour of the second defendant. Although the second defendant was an adult, Derrick DCJ assumed the first defendant, his mother had some ability to exercise parental control over him. 2413 However, the harm was not the direct result of the host’s conduct, at no stage did the host assume responsibility for preventing injury to the plaintiff, nor did the plaintiff place reliance on any conduct by the host. Even though the plaintiff was only 17, she was not considered to be vulnerable to risk of injury from the conduct of the host or the second defendant in the sense of being unable to protect herself from any want of reasonable care on their part. 2414 Derrick CJ concluded that notwithstanding the host supplied alcohol at the party and thereby enabled the second defendant to drink to excess, the host could not be found responsible for creating or increasing the risk that the second defendant would cause harm to the plaintiff. He reasoned that the second defendant was an adult, not a teenager and therefore was responsible for his own conduct and how much alcohol he consumed at the party.1964 2415 As such, Derrick DCJ ultimately concluded there were insufficient salient features in the relationship between the plaintiff and the first defendant to enable a conclusion that the relationship was sufficiently close to give rise to the alleged duty of care. The circumstances did not justify a departure from the ordinary common law position that there was no duty of care to prevent another from a risk of harm unless a person has created or increased the risk of harm. 2416 Notwithstanding this finding, Derrick DCJ went onto deal with whether, if such a duty of care did exist, it had been breached by the host in that instance. 2417 Relevantly, Derrick DCJ found that given the parental relationship between the first defendant and the second defendant, a reasonable person in the first defendant’s position would take reasonable steps to ensure the second defendant did not engage in alcohol induced violent or quarrelsome behaviour, in order to prevent injury to the plaintiff. Those steps were not particularly burdensome and included suggesting the second defendant stop drinking or eat more food or remove 1964 Ibid at [165]. -- 430 of 496 -- [2026] SADC 27 425 himself from the vicinity of other guests while he sobered up. Importantly, he said:1965 However, and is apparent from my findings on material factual issues, I am not satisfied that the second defendant was engaging in any behaviour, let alone violent or quarrelsome behaviour, which exposed other invitees, including the plaintiff, to a reasonably foreseeable risk of injury of any type, substantial or otherwise. The plaintiff was intoxicated, but his conduct was not violent, quarrelsome or disorderly. Accordingly, I do not consider that a reasonable person in the first defendant’s position prior to the accident would have taken reasonable steps to ensure that the second defendant did not engage in violent or quarrelsome behaviour. It follows that I do not think that the first defendant breached the alleged duty of care by failing to take any such reasonable steps. Analysis 2418 The applicant was a guest invited onto the premises. It was common ground that there was no decision binding on this Court which stood for the general proposition that the host of a private party owes a duty of care to invitees to prevent injury being caused to them either by the violent, quarrelsome or disorderly conduct of a third party, or the criminal actions of a third party.1966 In other words, there is no recognised ‘special relationship’ created simply by the fact the applicant was a guest at the premises, rather than a stranger. 2419 The applicant submitted that the specific circumstances of this case created a special relationship between the third and fourth respondents and the applicant. It was submitted that this took the case outside of the operation of the ordinary rule and gave rise to a duty of care on the third and fourth respondents to control the actions of their guests. That duty extended to preventing a fight breaking out (at the premises) and/or to intervene if any fight broke out. 2420 The underlying premise for this submission was that that the third and fourth respondents had purported to exercise control over who could attend the party and for what purposes, as outlined in the invitation. There was a ‘closed’ invitation list and numbers were meant to be capped to no more than 30. Mr Stankiewicz had also imposed a requirement that only people of good character could attend the party.1967 It was submitted that Lloyd was known to be a person not of good character. Rather than exercising their responsibility to control Lloyd’s continued presence at the premises, the third and fourth respondents had delegated that responsibility to Owen and instead should have taken active steps to remove Lloyd from the premises. Having allowed Lloyd to stay at the premises, in circumstances where they knew the young guests would be drinking alcohol, perhaps to excess, the third and fourth respondents then took no active steps to supervise the behaviour of their guests, including Lloyd. 1965 Ibid at [179]. 1966 As acknowledged in Hodge v Barham [2011] WADC 71 at [157]. 1967 Noting this was an inaccurate summary of the evidence; see T 537.5-9. -- 431 of 496 -- [2026] SADC 27 426 2421 These submissions appear to define the existence and scope of the duty of care by reference to its breach. 2422 There are several difficulties with these submissions. 2423 It is reasonable for any responsible homeowner who intends to hold a party at their home to seek to control in some way, who attends that party and in what circumstances. For example, a reasonable host is likely to take steps to ensure, so far as is reasonably possible, that only those who are invited to the party in fact attend the party. A simple way of exercising such control is to ensure there is an official invitation list and that, as far as is reasonably possible in this internet age, limits are placed on the method by which the invitation is communicated, to make it more difficult for the party details to be seen by those who are not on the invitation list. That is what occurred in this case. 2424 Any party invitation will, ordinarily, specify the location, the date and the start time. It may also include other details such as whether food and beverages are to be supplied and/or whether guests are required to wear special dress or bring anything with them. This is what occurred in this case. 2425 The very purpose of having an invitation list is to provide some certainty both as to who attends the party and how many people attend the party. The latter is important to know for catering purposes and to ensure numbers remain manageable having regard to the overall party setup and the size of the premises. The former simply reflects a reasonable desire to control who is at the party and to ensure that people who are not known to the hosts (or otherwise welcome onto the premises) do not attend. 2426 Further, it is reasonable to assume that any responsible party host who became aware of the existence of any gate crashers (or suspected gate crashers) at the party would take action to address their attendance. This is what occurred in this case, when Owen approached the first and second respondents and ascertained they had been invited by Kelly. 2427 The existence of these facts, which demonstrate a host to have some control over the event they are hosting, cannot, alone, in my view, impose a duty on such hosts to prevent harm to a guest by the criminal conduct of a third party, even if the risk of harm is foreseeable. Otherwise, such a duty would be imposed on any responsible party host. 2428 At the core of the applicant’s submissions was a submission that Lloyd was someone known not to be of good character. He should therefore not have been allowed onto the premises and once he was allowed to stay, this resulted in the imposition of a duty on the hosts to control his behaviour. 2429 Mr Stankiewicz’s evidence was that he assumed the young people Owen invited had attended his schools, both of which were of good reputation. He trusted Owen, who was in fact, a young adult, to invite people who he would -- 432 of 496 -- [2026] SADC 27 427 consider to be acceptable. There is nothing unusual or out of the ordinary about this. Owen’s parents did not know many of the young guests. It was a party to celebrate the birthdays of both Owen and Kelly. They were best placed to determine who they wanted on the guest list. 2430 Owen gave evidence, which I accept, that his parents specified that the invited guests were not otherwise allowed to bring a ‘plus one’. This requirement served two obvious (and ordinary) purposes, that is, controlling who attended and how many people attended. The fact the third and fourth respondents purported to exercise that type of control did not, of itself, then impose upon them a duty of care going beyond that ordinarily imposed by the common law. Again, if it did, that duty would be imposed on most responsible party hosts. 2431 There was, in fact, no evidence to the particular effect that Lloyd was ‘not of good character’. At its highest, the evidence from Owen was that Lloyd was an aggressive person and a bit of a bully, who he had seen get drunk at parties, bringing out that part of his personality that he did not like. 2432 Owen gave evidence that he had never seen Lloyd fighting at a party. What he told the police in his statement about being ‘aware’ of such (prior) events was hearsay. There was no evidence from any witness that, prior to this party, they had ever seen Lloyd either get in a fight at a party or try to get into a fight at a party, resulting in someone having to try to hold him back. 2433 There was no evidence at all to the effect that Dunn-Lawless was either a person of poor character or a troublemaker or, prior to this party, had been seen by anyone, ever, fighting at a party or fighting per se.1968 2434 It was specifically pleaded that the third and fourth respondents were negligent in that they permitted the first and second respondents to remain on the premises when there was a foreseeable risk that they may behave in a disorderly and offensive manner. 2435 However, and importantly, the applicant did not argue that this case fell within that as outlined in Smith v Littlewoods Organisation Ltd,1969 that is, that the criminal conduct of the first (and/or second) respondent was attended by such a high degree of foreseeability and predictability that it took the case outside of the operation of the general principle, such that the law imposed a duty of care to take reasonable steps to prevent it. 2436 Many of the matters raised by the applicant were focussed on characterising Lloyd (and Dunn-Lawless) as gate crashers. The party was a joint party for both Owen and Kelly. Dunn-Lawless gave unchallenged evidence that he was invited 1968 Noting that although there was evidence which demonstrated the applicant had a propensity to act both aggressively and violently towards others, there was no argument made to the effect that he should not have been permitted to attend and/or remain at the party. 1969 [1987] AC 241 at [261]. -- 433 of 496 -- [2026] SADC 27 428 to the party by Kelly. Owen gave evidence that when he challenged both Lloyd and Dunn-Lawless about being at the party uninvited, they said that Kelly had invited them and that she subsequently confirmed this. 2437 The fact that Owen did not personally invite either Lloyd or Dunn-Lawless at the party did not mean they were gate crashers. Rather, they were Kelly’s guests at the party hosted by the third and fourth respondents. 2438 Even if Lloyd (and/or Dunn-Lawless) were gate crashers, the fact is, their attendance at the party was noticed by Owen and immediately addressed thereafter by him. I am satisfied that he did not, initially, want them at the party. Otherwise, he would not have approached them and asked them to leave. However, after speaking with them both in a civil manner, and being reassured they would not cause any trouble, he was comfortable to let them stay. This was an amicable discussion. There was nothing about the behaviour of either Lloyd or Dunn- Lawless at the party, either prior to this discussion, or during this discussion, or at any time prior to the incident which suggested any cause for concern. 2439 Owen knew both Lloyd and Dunn-Lawless whereas there was no evidence that either Ms Dansie or Mr Stankiewicz had previously met either of them. Owen was an adult. In the circumstances, he was the appropriate person to both address their presence at the party and having done so, to determine if he was comfortable for them to stay. 2440 The applicant relied upon the decision of Bragg v Returned and Services League Henley & Grange Sub-Branch Inc1970 to support the existence of the specified duty of care. However, the premises were a private property, not licenced premises. There was no reliable evidence that either Lloyd and/or Dunn-Lawless were behaving in a drunk or disorderly or aggressive manner before the incident, such that it was reasonably foreseeable that without positive intervention by the hosts, the risk of injury to the applicant was foreseeable. 2441 The third and fourth respondents did not provide alcohol for the young guests to consume, thus distinguishing this case from the situation in Hodge v Barham. However, the third and fourth respondents acknowledged they did not monitor what alcohol was either brought into the party or consumed by the young guests at the party. 2442 Although Dunn-Lawless gave evidence that Lloyd was drinking beer, and that Lloyd probably consumed more than one ‘long neck’ of beer, there was no reliable evidence that Lloyd was drunk and/or behaving as if he was drunk at any time prior to the incident. Dunn-Lawless was also drinking, but there was no evidence he was drinking to excess and/or was drunk and/or behaving in an intoxicated manner. 1970 [2003] SASC 226. -- 434 of 496 -- [2026] SADC 27 429 2443 The only evidence that anyone at the party was overly intoxicated related to the applicant. It was never suggested by the applicant that the third and fourth respondent ought to have taken steps to remove him from the party at any time. One may assume that this is because the applicant did not consider it reasonable for anyone to assume that because of his apparent level of intoxication, he posed a risk to anyone else’s safety. 2444 The applicant was under the age of 18. However, Mrs Chattaway gave evidence that the applicant had previously attended the Schoolies weekend, being an event well known for its heavy consumption of alcohol by all attendees, including those underage. She was not questioned on whether she would have refused the applicant permission to attend if she had been forewarned by the hosts that alcohol would be consumed by guests at the party. The applicant, in fact, bought his own beers to the party. It can be inferred from all of the evidence and I find that Mr and Mrs Chattaway knew there would be alcohol at the party and were comfortable both for the applicant to attend the party and to consume alcohol at the party. 2445 This party was held in December 2010. There was no evidence of any relevant party protocols or SA Government Advice applicable at that time relevant to parties attended by underage persons where alcohol was likely to be available for guests’ consumption. 2446 There are parties held to celebrate 18th birthdays in private backyards every weekend in Australia. At many of those parties there are guests in attendance under the age of 18 consuming alcohol. Although a host could check every guest, upon arrival, to ascertain what, if any, alcohol they had brought with them, many such guests may have consumed alcohol before they arrived at the party venue. In other words, simply checking what alcohol is brought in to the party, may not prevent any guest from becoming intoxicated. Further, monitoring the level of alcohol being consumed by the guests by checking what is in the eskies from time to time, will not assist to uncover alcohol (such as white spirits) otherwise concealed in water bottles and the like. 2447 None of the young guests were behaving in an overly drunken or raucous or disorderly manner. None of the young guests were throwing up in bathrooms inside or outside. There was no evidence that the young guests were playing drinking games or encouraging each other to drink to excess. There was no reliable evidence of any behaviour of any concern at all by any guest prior to the incident. Put another way, at the time of the incident, this was not a party where things were getting, let alone had gotten, out of control. There was nothing about the party per se which gave rise to any special danger as argued in Ryan. 2448 As stated earlier, I accept that the maximum number of guests in attendance at the party did exceed what Mr Stankiewicz was expecting (30 guests). However, there was no evidence that this created any problem with overcrowding or -- 435 of 496 -- [2026] SADC 27 430 somehow made the party unmanageable from the hosts’ perspective (or in any way contributed to the incident). 2449 There were, at all material times, four responsible adults in attendance at the party. They were not continuously monitoring the backyard, or patrolling it, or actively supervising what was occurring in every corner of the backyard. However, they were providing a general level of oversight. They were not actively intruding into the ‘young people’s space’. They were allowing the young guests to have fun, while being physically present in case more active intervention by them was required. Again, this is ordinary behaviour. 2450 I have considered whether there are enough significant features in this case which, in combination, constitute a sufficiently close relationship between the third and/or fourth respondents and the applicant to give rise to the specified duty of care. 2451 The alleged duty did relate to a positive act (that is, the exercise of control by way of appropriate supervision) as opposed to a mere failure to act. 2452 However, the harm suffered by the applicant was not the direct result of the conduct of the third and/or fourth respondents. The third and fourth respondents did not, at any stage, assume responsibility for preventing injury to the applicant. In the circumstances of this party, it cannot be said that the third and/or fourth respondent knew or ought to have known of the risk of injury to the applicant or that the applicant was vulnerable to the risk of injury from their (that is, the third and/or fourth respondent’s) conduct. 2453 As to whether the third and fourth respondents had the ability to control the risk of injury to the applicant, there was no reliable evidence that either the first and/or second respondent (or any other young guest) was behaving in an aggressive or threatening manner or that there was tension brewing, or that there was any raucous or stupid behaviour occurring amongst any of the guests, at any time prior to the incident. 2454 It was submitted that the hosts ought to have had a set of adult eyes fixated on every corner of the backyard (including the darkened bushes used by the boys to urinate), throughout the entirety of the party, so that someone could have stepped in and stopped the first ‘shove’ from turning into something more. It was suggested that if an adult was seated at the table on the grassed area they could have stepped in and intervened at the first sign of trouble. 2455 However, I do not consider it reasonable to impose on the host of a private party, attended by guests of this age group, where alcohol is being consumed by the young guests, a duty to have an adult positioned in locations throughout the premises such that every activity that occurs at such a party is occurring under adult supervision. Having adults lurking in every possible vantage point of a party -- 436 of 496 -- [2026] SADC 27 431 of this type is simply untenable from both a hosts’ perspective and that of the young guests. 2456 If there was reliable evidence that either the first and/or second respondent (or any other young guest) was behaving in an aggressive or threatening manner or if there was tension brewing, or even if there was raucous, stupid behaviour occurring, this may change the situation. 2457 However, the circumstances at this party did not meet that threshold. 2458 In all of the circumstances of this case, I am not satisfied that there were sufficient salient features in the relationship between the applicant and the third and/or fourth respondents so as to justify or require the conclusion that the relationship between them was sufficiently close as to give rise to the specified duty of care. I do not consider that the circumstances of this case are such as to justify a departure from the ordinary common law position that there is no duty of care to protect another from risk of harm unless that person has created or increased that risk of harm. 2459 The third and/or fourth respondents did not owe the applicant a duty to prevent the fight breaking out or to intervene in the course of the fight breaking out, in the circumstances of this case. Breach of duty - standard of care General principles 2460 If I am wrong in that conclusion, it is prudent to consider whether there was a breach of any such duty of care, in any event. 2461 Section 31(1) CLA prescribes the relevant standard of care in the following terms: 31—Standard of care (1) For determining whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant's position who was in possession of all information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose. 2462 Section 32 CLA prescribes the extent of the duty to take precautions against a risk of harm: 32—Precautions against risk (1) A person is not negligent in failing to take precautions against a risk of harm unless— (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and (b) the risk was not insignificant; and -- 437 of 496 -- [2026] SADC 27 432 (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if precautions were not taken; (b) the likely seriousness of the harm; (c) the burden of taking precautions to avoid the risk of harm; (d) the social utility of the activity that creates the risk of harm. 2463 The applicant carries the onus of proving that a reasonable person in the position of the third and fourth respondents would have taken precautions against the risk of harm. It is not for the respondents to prove that such precautions were not necessary. 2464 Section 32 CLA effectively codifies what is known as the ‘Shirt Calculus’ as set forth in Wyong Shire Council v Shirt,1971 save and to the extent that the statutory test is marginally more demanding insofar as the risk in question must be ‘not insignificant’, rather than ‘not farfetched or fanciful’. 1972 2465 A relevant duty of care will be discharged by the exercise of reasonable care and the Court must keep in mind that an obligation to exercise reasonable care is not an obligation to prevent harm occurring to others. The Court must avoid using hindsight to find negligence. Analysis 2466 It is alleged that the third and fourth respondents were negligent in that they:1973 9.1 failed to keep any or adequate lookout; 9.2 permitted the first and second respondents to remain on the premises when there was a foreseeable risk that they may behave in a disorderly and offensive manner; 9.3 failed to ensure that the premises were secure and the birthday party was conducted in a safe and non-dangerous environment and failed to ensure any or any adequate security for the purposes of the birthday party particularly when the party involved the provision and consumption of alcohol; 9.4 failed by not having the first and second respondents removed from the premises. 2467 In response the third and fourth respondents plead:1974 1971 (1980) 146 CLR 40 at [47]-[48], per Mason J. 1972 Clare & Gilbert Valleys Council v Kruse [2019] SASCFC 106 at [26]. 1973 FDN 94 at [9]. 1974 FDN 98 at [3]. -- 438 of 496 -- [2026] SADC 27 433 1. The Third and Fourth Defendants Respondents say that: (a) throughout the course of the birthday party they prepared food for the guests including food cooked on a barbecue; (b) throughout the course of the birthday party they supplied soft drinks and water to the guests; (c) they did not supply any alcohol to any of the guests; (d) they and two other adult couples were present at the premises to supply food and non-alcoholic beverages and provide supervision as required; (e) entry to the premises was only through the household of the Third and Fourth Defendants Respondents; (f) during the course of the evening they regularly went into the backyard area where the birthday party was being held to remove rubbish and replenish snack food; (g) they maintained a view of the backyard of the premises where the birthday party was held; (h) at no time prior to the Plaintiff Applicant suffering a physical injury on 5 December 2010 was there any aggressive or violent behaviour by any of the guests including either one or both of the First and Second Defendants Respondents; (i) at no time prior to the Plaintiff Applicant suffering a physical injury on 5 December 2010 did any of the guests including the First and Second Defendants Respondents behave in a disorderly or offensive manner; (j) at no time prior to the Plaintiff Applicant suffering a physical injury on 5 December 2010 was there any reason for the First and/or Second Defendants Respondents to be removed from the premises. 2468 I have previously made findings of fact consistent with the factual matters as pleaded at paragraphs 3(a)-(c), (e), (f) and (h)-(j) of the third and fourth respondents’ defence. Lookout/Supervision 2469 Insofar as the applicant pleaded there had been a ‘failure to keep any or adequate lookout’, it was in fact submitted that what was required to fulfil the duty of care was for the third and fourth respondents, or someone else on their behalf, to maintain a constant view of the backyard throughout the party such that they were continuously and consciously supervising every aspect of the party. 2470 In addition to the third and fourth respondents, Mr and Mrs Allan were at the party at all material times. Mr Allan had first aid training. Mrs Allan was a teacher. Both were responsible adults who were at the party both to provide company for Ms Dansie and Mr Stankiewicz and to assist insofar as any adult help was required. 2471 At various times during the party, Mr Stankiewicz and/or Mr Allan were in the backyard, during which times they were undertaking activities such as cooking -- 439 of 496 -- [2026] SADC 27 434 the barbecue and/or cleaning up but they were also making general observations of what was going on at the party, including maintaining a general (albeit unintrusive) oversight of the behaviour of the young guests. 2472 When the adults were inside the house, it was possible for them to see into the backyard either through the window over the kitchen sink and/or through the glass doors and windows adjacent to the living room. I am satisfied that when not outside, or going into one of the toilets, Ms Dansie, Mr Stankiewicz and Mr and Mrs Allan were inside in either the kitchen or the living room and therefore in close physical proximity to the backyard. 2473 The adults were all inside in the kitchen/living area when they first learned of the incident. It is not the case that the adults were cocooned away from the party at the other end of the house, nor had Ms Dansie and/or Mr Stankiewicz effectively abandoned any hosting activities by going to bed and leaving the young guests to fend for themselves. As stated earlier the four adults in attendance at the time of the incident were all sober and able to respond appropriately to any incident and did so respond. 2474 As I have said many times, there was no reliable evidence that there was anything about the behaviour of any guest at the party which suggested there was any reasonable possibility of a fight occurring. The atmosphere was calm, friendly and peaceful. There was no overtly drunken or raucous behaviour. 2475 The first shove occurred at the bushes at the rear fence. I am satisfied that it was not mandated that the males use the bushes near the rear fence as a urinal. There were two bathrooms inside the house they could have used. It was rather a matter of convenience for the young males to urinate at the bushes. The very fact the bushes were secluded at the rear of the property is why they were a convenient location for a makeshift urinal. It was not, in my view, reasonable to have an adult positioned such that the rear bushes were under constant supervision and/or monitoring in the circumstances of this party. 2476 Further, given the circumstances of this party, it was not reasonable for there to have been an adult or adults positioned strategically throughout the backyard at various monitoring points maintaining a vigil over what was occurring, either in terms of behaviour and/or the consumption of alcohol. This would be different if the guests were obviously overly intoxicated or behaving aggressively or stupidly such as to promote some cause for concern. That was not the case here. 2477 Having regard to all of the evidence, I am not satisfied that any risk of harm to the applicant was foreseeable (that is, it was a risk of which the third and/or fourth respondents knew or ought to have known); and that any such risk was not insignificant, such that a reasonable person in the position of the third and fourth respondents would have taken the precaution of continuously monitoring the backyard, or patrolling it, or actively supervising what was occurring in every corner of the backyard. -- 440 of 496 -- [2026] SADC 27 435 2478 I am not satisfied that the third and fourth respondents failed to maintain any or adequate lookout. Allowing Lloyd and Dunn-Lawless to stay and/or not remove them from the party 2479 I refer to my previous discussion of Owen’s evidence as to the character of both Lloyd and Dunn-Lawless at paragraphs 587-592 and my findings at paragraphs 2225, 2230 and 2237. 2480 The evidence fell short of establishing that either Lloyd or Dunn-Lawless were drunk at the time of the incident. 2481 There was no reliable evidence that, at any time, prior to the incident, anyone saw either Lloyd or Dunn-Lawless behaving in an aggressive or threatening manner or even in an intoxicated or silly manner. 2482 Having regard to all of the evidence, I am not satisfied that any risk posed by the first and/or second respondent to the applicant was foreseeable (that is, it was a risk of which the third and/or fourth respondents knew or ought to have known); and that any such risk was not insignificant, such that a reasonable person in the position of the third and fourth respondents would have taken the precaution of requiring either Lloyd or Dunn-Lawless to leave the party, or removing them from the party. 2483 The circumstances of this party were not such that a reasonable person in the position of the third and/or fourth respondents would have taken such precautions, or other precautions such as shutting the party down, or warning those present to abide by a certain level of behaviour. The behaviour of those at the party prior to the incident did not reasonably require those precautions be taken. 2484 I am not satisfied that the third and/or fourth respondents were negligent in permitting Lloyd and/or Dunn-Lawless to remain on the premises and/or by not removing either of them from the premises. Failure to keep premises secure 2485 Dunn-Lawless was an invited guest at the party. Owen gave evidence, which I accept, that Lloyd told him he had been invited by Kelly and that Kelly confirmed this. There was no reliable evidence that they were ‘gate crashers’. 2486 In any event, their presence at the party was noted and appropriately dealt with by Owen. 2487 The young guests were accessing the party via the driveway/carport and a closed gate. There was no evidence that attendees were gaining access to the premises by jumping over fences or the like. This was not a party disturbed by, or taken over by, gate crashers. 2488 The third and fourth respondents did not fail to ensure that the premises were secure. -- 441 of 496 -- [2026] SADC 27 436 Failure to conduct party safely, and have adequate security 2489 The same considerations arise in considering this allegation as those which relate to supervision generally. 2490 Although in hindsight it could be said the party was unsafe as the incident occurred, that is not the way to approach a finding of negligence. 2491 I repeat my earlier observations and findings at paragraph 2476. 2492 The third and fourth respondents were involved in preparing for the party in terms of ensuring there was a closed invitation list. Insofar as the numbers may have exceeded the 30 as envisaged by Mr Stankiewicz, there was no suggestion the premises were over-crowded or the numbers unmanageable. The ambience of the party was peaceful and calm. The third and fourth respondents did not supply alcohol to the young guests. Food, water and soft drink were supplied. There were at least four responsible adults present at all material times maintaining a general oversight of the party, with two such adults occasionally circulating throughout the backyard. The party both started and ended at a reasonable time – it was not continuing into the early hours of the next morning. 2493 I am not satisfied that the third and/or fourth respondents were negligent in failing to conduct the party and/or in failing to have adequate security. 2494 The third and fourth respondents did not breach any duty of care they owed to the applicant. Factual causation General principles 2495 If I am wrong in my conclusion/s as to breach of duty, it is pertinent to consider whether any alleged breach of duty by the third and/or fourth respondent caused or contributed to the harm suffered by the applicant. 2496 It is for the applicant to prove, on the balance of probabilities, any fact relevant to the issue of causation and therefore any fact relevant to a determination of the issue as to whether a respondent’s negligence caused him injury, loss and/or damage.1975 2497 Section 34 CLA is relevant to the Court’s determination as to whether there should be any finding of liability as against the third and fourth respondents and if so, the extent of such liability. 34—General principles (1) A determination that negligence caused particular harm comprises the following elements: 1975 CLA s 35. -- 442 of 496 -- [2026] SADC 27 437 (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation); and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) … (3) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 2498 Section 34(1)(a) CLA requires the Court to consider whether the negligence of either the third and/or fourth respondents was a necessary condition of the occurrence of the harm suffered by the applicant. The question posed by s 34(1)(a) is whether that ‘harm’ would not have occurred ‘but for’ the respondent’s negligence. 2499 To establish the first limb (factual causation), the applicant must establish that it is more probable than not that, but for the respondent’s act or omission, the harm would not have occurred. This is to be determined on the facts.1976 2500 As to the second limb, the scope of liability, requires consideration of whether, and if so why, responsibility for the harm should be imposed on the third and/or fourth respondent, which questions will be answered by incorporating policy or value judgments and most often through the application of precedent. Analysis/findings 2501 The incident occurred spontaneously and was over within around 10 to 15 seconds. No one saw Lloyd push the applicant at the bushes. There was no evidence that anyone at the party (besides those involved), other than Ms McCallum, saw any aspect of the incident. 2502 If there was an adult seated at the table on the grassed area, or even a security guard monitoring the property, it is unreasonable to expect that person’s view to be fixated on the bushes at the precise moment that Lloyd pushed the applicant, such that what happened, in the seconds thereafter, could have been curtailed by adult intervention. 2503 The very fact no one (other than Ms McCallum) saw the incident unfold, despite there being multiple people in various areas of the backyard which had a line of sight to the location where the incident occurred, demonstrates how quickly the incident must have started and ended and how having an adult or adults performing a dedicated supervisory role outside was, in all of the circumstances, unlikely to have prevented the incident from occurring. Even if Lloyd and/or Dunn-Lawless was the aggressor, I am not satisfied that any purported failure to 1976 Wallace v Kam (2013) 250 CLR 375 at [14]-[16]. -- 443 of 496 -- [2026] SADC 27 438 keep an adequate lookout was a necessary condition of the occurrence of the harm sustained by the applicant. 2504 I refer to my previous findings as to the behaviour of both Lloyd and Dunn- Lawless, at the party, prior to the incident. There was nothing about their behaviour which reasonably required them to be removed from the party. Further, the fact there was no adult at the ‘gate’ monitoring who attended at the party, had no role to play as a cause of the incident. Dunn-Lawless was an invited guest. In all likelihood, Lloyd was also invited by Kelly. Their presence at the party was noted and appropriately dealt with by Owen. 2505 There was insufficient evidence to support a finding that Lloyd (or Dunn- Lawless) was drunk. As such, I am not satisfied that any purported failure to monitor their alcohol intake was a necessary condition of the occurrence of the harm sustained by the applicant, on any version of the incident. 2506 If the third and/or fourth respondents were negligent, that negligence did not cause the harm in fact suffered by the applicant, being harm sustained as a result of a spontaneous fight that could not have been reasonably predicted having regard to the circumstances of the party. Medical causation The law 2507 The issue as to whether the incident caused the applicant’s schizophrenia was referred to at trial, for the sake of convenience, as the ‘Medical Causation’ issue. 2508 It is for the applicant to prove on the balance of probabilities that any loss or damage suffered by him was caused by the acts or omissions of a respondent. Notwithstanding my findings as to liability, it is important that I make factual findings on this issue. 2509 The applicant did not make any submissions as to the law with respect to this issue. The submissions that were made by the parties assumed that the relevant test for causation was as set forth in s 34 CLA. 2510 Section 34 CLA outlines those elements required to be considered by the Court when determining whether negligence caused particular harm. Although negligence was pleaded as a cause of action against the first and second respondents, the case that was ultimately presented by the applicant was one founded on the intentional tort of battery. 2511 Although there were no submissions directed specifically to this issue, I am of the view that the common law test as to causation is applicable insofar as the applicant had claim against the first and second respondents. -- 444 of 496 -- [2026] SADC 27 439 2512 The common law test for causation was considered by the High Court in Tabet v Gett1977 at which time the Court adopted the ‘but for’ test for causation, that is, unless the defendant’s actionable conduct is shown to be a necessary condition of the plaintiff’s injury, the plaintiff’s claim will not succeed. 2513 More recently, the Full Court of the Federal Court of Australia rejected a proposition that the ‘material contribution’ test for causation allowed for causation to be established if there was evidence of an increase in the risk of the event even though it was not possible to say that the event would not have occurred but for the conduct which gave rise to the increase in risk.1978 The Court stated:1979 104. The rule that a plaintiff must establish as a necessary condition of recovery that he or she would not have suffered loss but for the defendant’s actionable misconduct is deeply rooted in the policy of the common law that one person should not be liable for the loss suffered by another unless the plaintiff can establish that the defendant’s actionable conduct caused the plaintiff’s loss. It is not open to this Court to decide that we should no longer adhere to this rule and that a different and “better” rule should henceforth be applied. This Court must proceed on the footing that for Mr Peterson to show that the consumption of Vioxx materially contributed to his MI, in the sense relevant in Australian law, he is obliged to show that his consumption of Vioxx was a necessary condition for the occurrence of the heart attack on 8 December 2003. To say that the consumption of Vioxx was, for example, “in the mix” of possible causes is not enough in this regard. As Beazley JA said in Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 at 339, the onus of proof of causation “is not discharged by establishing that a particular matter cannot be excluded as a cause of the injury”. 2514 As outlined below, I have ultimately determined that the applicant has not established, on the balance of probabilities, either that the incident was: • a necessary condition of the occurrence of the applicant’s schizophrenia; or • so connected with the applicant’s schizophrenia that, as a matter of ordinary common sense and experience, it should be regarded as the cause of it; 1980 or • materially contributed to the development of the applicant’s schizophrenia, such that, as a matter of law, it can be regarded as having caused the applicant’s schizophrenia. 2515 If the applicant had otherwise established, on the evidence, that a respondent or respondents were legally liable for any loss or damage sustained by him, I am satisfied that he has not established that such loss or damage extends to any loss or damage arising from his schizophrenia. I outline my reasons for such a finding below. 1977 (2010) 240 CLR 537 at [111]-[113]. 1978 Merck Sharpe & Dohme Australia Pty Ltd v Peterson [2011] FCAFC 128 at [102]-[104]. 1979 Ibid at [104]. 1980 Being the test as favoured by the High Court in March v E &MH Stramare (1991) 171 CLR 506, 522. -- 445 of 496 -- [2026] SADC 27 440 The pleadings 2516 The relevant pleading is at SOC [10A], namely: Further, as a result of the actions referred to in paragraph 5 herein and of the negligence of the third and fourth respondents referred to in paragraph 8 and 9 herein, the applicant suffered psychological injuries including post-traumatic stress disorder and schizophrenia which were cause as a direct result of the matters pleaded in those paragraphs, or, in the alternative, were substantially caused as a direct result of the matters pleaded in those paragraphs. 2517 The case run at trial by the applicant as to medical causation was wholly reliant on the Court accepting the hypothesis advanced by Prof McFarlane as to causation. Put in very simple terms, there were two strands to that hypotheses, that is: 1. the applicant suffered PTSD as a result of the incident which then caused the applicant’s schizophrenia; or 2. the trauma of the incident itself caused the applicant’s schizophrenia. 2518 Relevantly the case run by the applicant did not include, as an alternative proposition, that the incident brought forward the onset of the applicant’s schizophrenia. 2519 The second, third and fourth respondents denied the allegations in SOC [10A].1981 In addition, the third and fourth respondents positively pleaded:1982 The Third and Fourth Respondents say that the Applicant would have developed and did develop schizophrenias irrespective of the physical injury suffered on 5 December 2010. Analysis /Findings The applicant 2520 I refer to my previous observations as to the applicant’s evidence, and in particular what is set forth at paragraphs 2018-2023 herein. 2521 Notwithstanding the submissions advanced by the applicant in closing, the applicant gave very little evidence as to his mental health in the period immediately after the incident, prior to leaving for China. For example, he did not give any evidence that the decision to go to China, rather than start his UniSA course, was made in the context of him struggling mentally after the incident. He did not give evidence that he did not leave the house or was scared to encounter the assailants. 2522 The applicant did describe it as being ‘less stressful’ to go to China but did not elaborate on what he meant by that. Rather, he said he wanted to go to China 1981 FDN 103 at [7]; FDN 98 at [5]. 1982 FDN 98 at [6]. -- 446 of 496 -- [2026] SADC 27 441 because he wanted a break away from living in Adelaide, it was something different and he wanted to do things that would challenge him. 2523 This evidence is inconsistent with a finding that at that time, the applicant was lacking in motivation generally or afraid to leave the safety of his home or seeking to avoid social or difficult situations. What the applicant did was effectively take a ‘gap year’, something which many 18-year-olds do, after completing school, rather than immediately start their chosen course of study in Adelaide. The answer the applicant gave as to why he chose to take the trip is, in my view, similar to the likely response that others who also choose a gap year, would give to the same question - to have a break from Adelaide, to do something different and to be challenged. 2524 As I said, the applicant did not give any detailed or specific evidence as to any immediate impact on his mental health after the incident. 2525 This is relevant and important in the context of there being no medical evidence to suggest the applicant was suffering any mental health symptoms prior to his departure for China. There is no mention of the applicant suffering any ongoing symptoms from the incident in Dr Angas’ notes made on either 5 January 2011, or on 21 February 2011 when the applicant attended with an infected toe. Dr Lamb was not told about the incident when the medical clearance was sought on 7 January 2011. Although Prof McFarlane opined that the absence of any reported symptoms during this period may simply have reflected a reluctance on the part of the applicant to reveal those symptoms, there was no evidence to this effect. 2526 There were no medical or university records in evidence from the applicant’s time in China. The only evidence about this period came from the applicant. That evidence painted a number of different pictures. On the one hand, the applicant described significant social interaction with others, drinking alcohol almost every night, partying five out of seven nights and meeting and dating several different girls. He made friends, became very fluent in Mandarin and worked at both an orphanage and a school. He wanted to stay in China, rather than come home to Australia. 2527 On the other hand, he also described dropping out of university, breaking down and crying, getting drunk and being in floods of tears. He explained he was basically living the high life, spending all his money on food and alcohol, to push away the trauma he had suffered. He said he lost the teaching job because of his lack of punctuality and spent some time homeless and sleeping on his skateboard. 2528 The evidence the applicant did give about his mental health while in China was vague. He said that when he arrived in China, he started having problems with his PTSD and he ‘was traumatised by being almost beaten to death’.1983 However, 1983 T 1273.6. -- 447 of 496 -- [2026] SADC 27 442 when he was asked when he first felt that way, the applicant’s response was unclear, ‘Maybe – January, February, March - August. August to June.’1984 2529 Importantly, the applicant did not give any evidence of suffering nightmares or flashbacks associated with the incident while he was in China. He did not describe any worsening of his concentration, notwithstanding he did not take his Ritalin with him. He did not describe social withdrawal, or paranoia. He did describe experiencing a number of other distressing events, such as suffering from severe dysentery during his first month there, his experiences in the orphanage and witnessing two people being killed, one going under a bus. 2530 Ultimately, for the reasons previously explained, I am unable to accept the applicant’s evidence about his time in China, in the absence of there being any other reliable or documentary evidence to support it. 2531 I accept the applicant’s evidence, supported by his parents, that he did drop out of his studies in China. However, as the applicant did not take his Ritalin with him to China, it was, in my view, inevitable that he would find it difficult to focus on or properly commit to his studies. It must also be remembered that he was an 18-year-old, who had just finished Year 12, overseas on his own, surrounded by other foreign students. He described much drinking, partying and seeing girls. This is precisely what someone might have expected an 18-year-old male, fresh out of school, to do, in the circumstances in which the applicant found himself. 2532 While it is certainly possible that the applicant suffered from mental health issues when he was in China, precisely what those issues were, when they were experienced and what, if anything, prompted them at that time, is decidedly unclear on the evidence. 2533 The applicant arrived home from China on 26 December 2011. He did not seek immediate assistance for any mental health issues. He saw Dr Angas on 17 February 2012, primarily for a referral back to Dr Lamb, but also in relation to weight loss. Importantly, there is nothing in Dr Angas’ notes about any mental health concerns. 2534 The applicant then saw Dr Lamb on 3 March 2012, seeking a prescription for Ritalin in the context of him resuming his studies. Relevantly, Dr Lamb described the applicant’s presentation as ‘unchanged’ from when he had last seen him (which may have been on 7 January 2011, or otherwise in mid-2010). Dr Lamb did specifically note that the applicant was upset as he had just learned about the charges against the respondents having been dropped. This news appears to have contributed to a deterioration in the applicant’s mental state – it featured prominently in Dr Rowe’s notes and in the histories provided thereafter to various medical practitioners. 1984 T 1273.12-13. -- 448 of 496 -- [2026] SADC 27 443 2535 As stated previously, it was not until 16 April 2012 that the applicant saw Dr Watson, seeking a referral to a psychiatrist. 2536 The applicant gave evidence about experiencing paranoid beliefs in February 2012 that the Stonemasons were hunting him. Although his evidence was difficult to follow, its effect was that such beliefs had arisen while he was studying Surveying at TAFE. He also described the students at UniSA putting images of witchcraft and satanic rituals up on PowerPoint presentations to try to make him paranoid. When asked whether that was in fact a delusion or if it happened, he said it had happened.1985 That response, of itself, casts doubt on the reliability of the specific evidence given by the applicant at trial during February 2024, at which time he was very mentally unwell. This was when the applicant gave evidence on topics relevant to ‘medical causation’. 2537 I have ultimately determined that the medical records which are in evidence for this period, and particularly the observations and diagnoses of those who saw the applicant during this period, are the best evidence of the nature of, and progression of, the applicant’s mental health symptoms during this period. 2538 I do accept, consistent with the applicant’s evidence, that there was a deterioration in his mental health in the months after he returned from China, particularly in March 2012 after he learned the charges against Lloyd and Dunn- Lawless had been dropped, sufficient for him to seek psychiatric assistance. However, I am unable to accept the applicant’s evidence as to the nature and progression of his mental illness as being accurate, unless it is otherwise supported by the medical evidence.1986 Mr and Mrs Chattaway 2539 I refer to and repeat my analysis of the evidence given by Mr and Mrs Chattaway as to the applicant’s behaviour and life generally before the incident, and the changes they claim to have observed in him after the incident, particularly following his return from China as outlined at paragraphs 1726-1758 herein. Dr Lamb 2540 The evidence given by Dr Lamb was largely uncontroversial and I accept that evidence. Importantly, although Dr Lamb prescribed the applicant with Ritalin from time to time to assist with concentration difficulties during his school years, he did not formally diagnose him with ADHD, noting that diagnosis was made when the applicant was still living in the UK. Dr Lamb did not observe signs of 1985 T 1339.5. 1986 Noting my earlier finding that although I generally accept the evidence of Mr and Mrs Chattaway that their son’s mental health deteriorated following his return from China, I am not satisfied that they now have an accurate recollection of precisely when certain observations, relating to his mental health, were made by them. -- 449 of 496 -- [2026] SADC 27 444 ADHD when he first assessed the applicant and relevantly it was Dr Lamb who referred the applicant for cognitive testing undertaken by Dr Clark. 2541 I accept Dr Lamb’s evidence that the medication he prescribed for the applicant, Ritalin, both improved concentration span and reduced distractibility. 2542 Notwithstanding the applicant ultimately went on to successfully complete Year 12, I accept Dr Lamb’s evidence that the applicant struggled from an academic perspective during that year, as he had throughout his schooling. 2543 Relevantly, although Dr Lamb was approached on 7 January 2011 to write a letter effectively certifying the applicant fit to live and study in China for a year, he was not told anything about the incident at that time. Although Dr Lamb could not recall if he saw the applicant that day, he was quite certain he must have seen either the applicant or a parent, as he did not undertake telephone consultations in 2011. I accept that evidence. 2544 I accept Dr Lamb’s evidence that he only learned about the incident on 2 March 2012, being the same time he learned from the applicant that he was upset about the charges having been dropped. Dr Jasoria 2545 Dr Jasoria was in a difficult position as a witness. He only saw the applicant on two occasions, the first such consultation occurring on 7 December 2012, the purpose of which was to provide the applicant with a report for him to access a disability support pension. 2546 Although Dr Jasoria listed the applicant’s condition, on the report, as ‘PTSD with previous psychotic episode’, I am satisfied that he stipulated a diagnosis of PTSD primarily to placate the applicant. In this respect, Dr Jasoria was aware that the applicant had recently seen Dr Watson at the clinic and had read Dr Watson’s record of that consultation which included the notation, ‘Does not accept diagnosis of Schizophrenia’.1987 Dr Jasoria’s notes of his consultation with the applicant also included the statement, ‘doesn’t like the diagnosis of schizophrenia’.1988 He acknowledged that he always tried to manage his relationships with patients and use words that did not upset them.1989 2547 The records demonstrate and I find, that at the time of this consultation, the applicant had firmly rejected his diagnosis as being of emerging schizophrenia. He thought he had PTSD and he told Dr Jasoria that the paranoia and psychosis he had experienced was due to PTSD. The evidence shows, and I find, that the applicant has subsequently remained fixed in that belief. About a year later, when the applicant saw Dr Koh to complete a Centrelink Care needs form, the notes record that he ‘became very agitated & very aggressive when the diagnosis of 1987 Exhibit R42 at p 396. 1988 Ibid at p 395. 1989 T 1149.33-35. -- 450 of 496 -- [2026] SADC 27 445 Schizophrenia was inserted into the form’.1990 Although this occurred nearly 12 months later, it shows that there was a sound basis for Dr Jasoria to be concerned not to upset the applicant when completing the report. 2548 Dr Jasoria confirmed that he did not conduct a diagnostic interview. In other words, he did not specifically question the applicant with a view to determining whether he met the criteria for a clinical diagnosis of PTSD. He did not prescribe any medication or review the applicant’s treatment plans. 2549 Dr Jasoria sought to justify what he had written in the report, as being informed by the various documents and records to which he had access. However, he agreed that he had not consulted with Dr Rowe. He agreed that the records of the RAH, from the applicant’s recent psychiatric admission, had stipulated a diagnosis of psychosis, likely schizophrenia. He acknowledged that ‘the records reflect that I probably thought he had schizophrenia’.1991 2550 In re-examination, Dr Jasoria explained that there can be more than one relevant diagnosis, and that he ‘believed [the applicant] had an element of [PTSD]’. However, at the time of this assessment, the applicant had already experienced attenuated psychotic symptoms and been hospitalised as a result. For reasons explained hereunder, I am satisfied the applicant was suffering prodromal/emerging schizophrenia at that time. Both Prof Nielsen and Prof McFarlane acknowledged that some of the symptoms attributable to a diagnosis of PTSD were symptoms also experienced by those suffering prodromal schizophrenia and/or schizophrenia. This is also apparent from the various research papers in evidence. 2551 As such, although I accept Dr Jasoria’s evidence that he thought that the applicant may have had elements of PTSD (as well as psychosis, likely due to schizophrenia) when he saw him in December 2012, this is largely irrelevant. It does not lend support to the hypothesis advanced by Prof McFarlane, namely that by mid-2012, the applicant was suffering from PTSD, which then lead to the subsequent development of schizophrenia. Dr Rowe 2552 Dr Rowe was in the unique position of being the psychiatrist who was treating the applicant at the pivotal time, in terms of understanding the potential progress of the applicant’s psychiatric illness. 2553 I am satisfied that Dr Rowe is best placed to express an opinion as to the nature of that illness during the period under which he was responsible for the applicant’s psychiatric care, that is, from late April 2012 until mid-2013, at which time his care was transferred to the Inner South Community Mental Health team. 1990 Exhibit R42 at p 395. 1991 T 1147.8-9. -- 451 of 496 -- [2026] SADC 27 446 2554 I am satisfied from a review of Dr Rowe’s notes, his various letters and his evidence, that he was a careful practitioner, whose concern has always been to ensure the best treatment for the applicant. I accept Dr Rowe’s evidence that he has a particular interest in the assessment and management of patients with PTSD. He had a thorough understanding of the relevant diagnostic criteria under DSM- IV-TR which was applicable at the time. As such, I consider it likely, and find, that Dr Rowe was very careful in terms of how he conducted the assessment on 17 May 2012. It was important for him to identify if the applicant had PTSD, as such diagnosis would have informed his treatment of the applicant thereafter. 2555 I reject the speculative evidence given by Prof McFarlane that Dr Rowe did not diagnose the applicant with PTSD during the detailed assessment, conducted specifically for that purpose, on 17 May 2012, as he did not sufficiently probe the applicant in terms of his symptoms. There is simply no evidential basis for any such finding. It was never suggested to Dr Rowe that there was any inadequacy in the assessment, nor did Dr Rowe resile from the accuracy of his findings made at the time of that assessment. 2556 I accept Dr Rowe’s evidence that at the time he first assessed the applicant on 27 April 2012, he thought the applicant had an adjustment disorder, with a mixture of depression and anxiety. Relevantly he described the applicant’s symptoms of depression and social avoidance as ‘mild’. 2557 I accept Dr Rowe’s evidence that notwithstanding direct questioning during the assessment on 17 May 2012, the applicant denied having the ‘re-experiencing symptoms’ of PTSD at any stage and that as such, he did not fulfil criterion B for the diagnosis of PTSD. 2558 Prof McFarlane gave evidence that the applicant’s denial of such symptoms may have been due to him being guarded about such symptoms. He gave evidence, which I accept, that the frequency of psychotic symptoms is often under reported by patients. Prof Nielssen acknowledged that a patient may withhold information from a practitioner. 2559 Dr Rowe acknowledged in cross-examination that if, as the applicant claimed in his evidence, he was experiencing delusions of being persecuted by the Stonemasons while at TAFE in early 2012, that could suggest he was suffering attenuated psychotic symptoms at that time. 2560 I am satisfied that at times, when psychotic, the applicant has under reported psychotic symptoms, for example, his denial to Prof McFarlane of ever having experienced auditory or visual hallucinations despite there being documented evidence to the contrary. 2561 However, as previously outlined, I have significant reservations as to the reliability and credibility of the evidence given by the applicant during February 2024, in particular. Whether he in fact was experiencing such delusions about the -- 452 of 496 -- [2026] SADC 27 447 Stonemasons when he was at TAFE, or whether he has subsequently had such delusions, is far from clear. Importantly, Dr Rowe gave no evidence that the applicant’s presentation in April or May 2012 was consistent with him being psychotic at that time. 2562 Further, Dr Rowe gave evidence that he had no reason not to accept what the applicant said in response to the specific questions asked of him during the assessment on 17 May 2012.1992 2563 In notes prepared by Dr Rowe at the time of that assessment, he recorded that the applicant told him that he did not dream about the incident. He noted that although he did reflect upon it, the images did not intrude on him. In addition, adjacent to the second aspect of criterion B (‘intense distress @ exposure to events that symbolize/resemble an aspect of the trauma (ie anniversaries)’), Dr Rowe recorded, ‘not distress’.1993 2564 Notwithstanding the applicant did not fulfil criterion B, Dr Rowe continued to question the applicant as to criterion C, during which he apparently described a markedly diminished interest in significant activities and other ‘avoidance’ symptoms. 2565 Relevantly, both Dr Rowe and Prof McFarlane gave evidence that avoidance symptoms, such as social withdrawal, were also symptoms that may be experienced during the prodromal period of schizophrenia.1994 2566 Prof McFarlane opined that the basis for the applicant’s social withdrawal was likely a desire to avoid re-experiencing the trauma of the incident, lending support to his theory that the applicant did, in fact, fulfill criterion B for PTSD at the time of Dr Rowe’s assessment. 2567 What Dr Rowe recorded was a history that the applicant had ‘lost the urge to socialise’ and felt more serious and distant since the incident. The applicant also apparently described having lost his sense of humour and of feeling flat and less motivated. These were the relevant ‘avoidance symptoms’. 2568 It is clear from Dr Rowe’s evidence that he was well aware that the underlying fear of who may be at certain places, underpins aspects of social withdrawal.1995 I am satisfied that Dr Rowe’s expertise is such that if he considered the applicant’s responses to the questions asked pertaining to criterion C were such that it was prudent to revisit criterion B, he would have done so. The fact Dr Rowe went on to ask these additional questions demonstrates that he was thorough when undertaking the diagnostic testing. 1992 T 1419.16-17. 1993 Exhibit R42 at p 638. 1994 T 1432.8-17; T 1602.3-12; see also Exhibit R73 at p 101. 1995 T 1432.18-22. -- 453 of 496 -- [2026] SADC 27 448 2569 I accept Dr Rowe’s evidence that from what the applicant told him during the assessment, he was not suffering ‘re-experiencing symptoms’. I reject any suggestion that Dr Rowe has somehow overlooked the possibility that the avoidance symptoms described by the applicant did have, as their basis, symptoms which fulfilled criterion B. Further, and importantly, this possibility was never put to Dr Rowe. 2570 The notes suggest that the applicant was quite open with Dr Rowe during the assessment. For example, he explained that he had felt considerably depressed since the court case fell through and provided considerable detail to Dr Rowe about the impact upon him of the break-up with his girlfriend, just before the incident. 2571 There is nothing apparent, on the face of the notes associated with this consultation, to support a finding that the applicant was guarded in terms of the history he provided to Dr Rowe at that time. Dr Rowe gave no evidence to the effect that the applicant appeared guarded at that time. 2572 In such circumstances, I am satisfied and find, as did Dr Rowe, that as at 17 May 2012, the applicant did not meet the criteria for a formal diagnosis of PTSD. 2573 Dr Rowe was questioned about when he believed Mr Chattaway entered the prodromal period for schizophrenia. In answering that question, he made specific reference to his understanding that the prodromal period could extend for around five to six months and outlined various aspects of the DSM-V criteria for schizophrenia.1996 He explained that it was in August 2012 that he first observed the applicant had started to develop ‘attenuated symptoms’. He described these symptoms as:1997 ... the same sort of symptoms that people get with the more severe forms of the condition, but it's just as they're starting to evolve and haven't fully formed. They're in the nascent form, which in some people will go on and become frank psychotic symptoms, as it did for Mr Chattaway. In some people though they don't proceed. They're kind of like a warning bell, which is often called a prodrome. 2574 I accept Dr Rowe’s evidence that from his observations and treatment of the applicant, he thought that ‘attenuated symptoms’ of the type consistent with prodromal schizophrenia, first became apparent in the applicant in August 2012. However, as outlined above, he acknowledged the potential for a symptom (such as avoidance) to be a symptom of more than one psychiatric illness. He also acknowledged that he was not himself a ‘super expert’ on the DSM criteria applicable to the prodrome of schizophrenia.1998 1996 T 1433.10-27; Exhibit R73 at p 99. 1997 T 1416.4-12. 1998 T 1433.4-11. -- 454 of 496 -- [2026] SADC 27 449 Dr Kutlaca 2575 Dr Kutlaca’s opinion that the applicant suffered PTSD as a result of the incident was relied upon by the applicant to support Prof McFarlane’s opinion to the same effect. 2576 Dr Kutlaca first saw the applicant in February 2017, that is, more than six years after the incident. As such, Dr Kutlaca’s opinion was necessarily based on assumptions and, in particular, on the history provided to him by the applicant as to the nature of the symptoms he had suffered in the period prior to becoming psychotic. By the time Dr Kutlaca first saw the applicant, he had been hospitalised for several serious episodes of psychosis, had violently attacked his parents and had been detained in James Nash House for several years. 2577 I accept Dr Kutlaca’s evidence as to the nature and content of the history provided to him by the applicant (and the applicant’s parents and instructing solicitors) during his two consultations with the applicant. I also accept Dr Kutlaca’s evidence that from his observations of the applicant during those consultations, the applicant did not appear to be obviously psychotic and gave answers to questions which seemed to bear a relationship to those questions. I accept Dr Kutlaca’s evidence that as such, he formed the view that the applicant was a ‘reasonable historian’. 2578 However, Dr Kutlaca acknowledged that he did not know whether what the applicant had told him was true or false. I am satisfied, and find, that the history recorded by Dr Kutlaca, and upon which he relied to express the opinion that the incident had caused the applicant to suffer PTSD, was in some respects, demonstrably false, and in many aspects, contrary to the evidence given by the applicant at trial. It was also different in critical aspects to the history recorded by Dr Rowe in 2012. 2579 By way of example, the applicant was not an inpatient at the RAH for 10 days after the incident, nor did he spend any period of time in the Intensive Care Unit, nor was he an inpatient at the Calvary Hospital for two weeks, as he told Dr Kutlaca. 2580 The applicant’s description of the circumstances of the incident (as recorded and relied upon by Dr Kutlaca) was markedly different to the version as outlined by the applicant in evidence, including a description of being struck repeatedly by a bottle – possibly 17 such blows. 2581 Dr Kutlaca assumed, in error, that the applicant had not been seen by a psychologist or counsellor in the years prior to 2010. 2582 Dr Kutlaca recorded and relied upon the applicant’s history that he had suffered traumatic dreams and flashbacks relevant to the incident while he was in China. This is contrary to the applicant’s history as recorded by Dr Rowe when he saw the applicant in May 2012, at which time Dr Rowe recorded that the applicant -- 455 of 496 -- [2026] SADC 27 450 denied having any recurrent dreams or flashbacks of the incident (‘no, I don’t dream about it’).1999 2583 Although in evidence the applicant described periods when he became emotional while in China, he gave no evidence of experiencing any paranoia or of suffering flashbacks or disturbing dreams about the incident, while he was in China, contrary to what he told Dr Kutlaca. 2584 Dr Kutlaca acknowledged that he had relied on the applicant’s history that he had been paranoid and suffered both flashbacks and disturbing dreams while in China, in making the retrospective diagnosis of PTSD. There is no reliable evidence to support Dr Kutlaca’s assumption that the applicant was suffering paranoia, flashbacks and/or disturbing dreams related to the incident, while he was in China. 2585 In expressing his opinion, Dr Kutlaca had assumed that the applicant had been referred to Dr Rowe for treatment for PTSD after the incident and that Dr Jasoria had diagnosed the applicant with PTSD (and psychosis). 2586 As to the former, the applicant was not referred to Dr Rowe for such purpose and Dr Rowe did not diagnose the applicant with PTSD at any time during 2012, or, indeed, any time thereafter. As to the latter, at its highest, Dr Jasoria thought the applicant may have had elements of PTSD when he saw him on 7 December 2012, being after he was first detained at the RAH for severe psychosis. As stated, Dr Jasoria did not undertake any formal diagnostic testing for PTSD at that time (or any time). 2587 Dr Kutlaca acknowledged that his diagnosis of PTSD relied upon the accuracy of the history provided to him by the applicant. I am satisfied that important aspects of that history were inaccurate. I am also satisfied that many of the assumptions upon which Dr Kutlaca relied in expressing that opinion, were without proper foundation and/or simply false. 2588 As such, I cannot accept Dr Kutlaca’s retrospective opinion, made in 2017, that the applicant suffered a PTSD as a result of the incident. 2589 Relevantly, Dr Kutlaca: 1. could not say with any confidence that the incident had caused the applicant’s schizophrenia. For reasons I will elaborate upon hereunder, I accept Dr Kutlaca’s evidence that the cause of schizophrenia is unknown and, specifically, that there is ‘insufficient support for PTSD causing or precipitating schizophrenia’;2000 1999 Exhibit R42 at p 638. 2000 Exhibit P43 at p 10. -- 456 of 496 -- [2026] SADC 27 451 2. expressed the opinion that it was unlikely the applicant’s schizophrenia was caused by the medical treatment he received as a result of the incident. 2001 I accept that evidence, there being no evidence to the contrary; 3. expressed the opinion that on balance the applicant would have developed schizophrenia irrespective of the incident.2002 For reasons I will elaborate upon hereunder, I accept that evidence; and 4. expressed the opinion that the incident was not of a type likely to significantly predispose an individual like the applicant to schizophrenia.2003 For reasons I will elaborate upon hereunder, I accept that evidence. 2590 Dr Kutlaca’s evidence does not support a finding that there is a causal link between the incident and the applicant’s subsequent development of schizophrenia. Prof McFarlane General 2591 I acknowledge and accept that Prof McFarlane is an extremely well credentialled and qualified psychiatrist, with a particular interest in PTSD and its relationship with schizophrenia. He spoke passionately about his view of the association between trauma (and, specifically, PTSD) and schizophrenia and relevant research on this issue, which he firmly believed supported that view. 2592 For the reasons outlined hereunder, I do not accept Prof McFarlane’s evidence that the applicant developed PTSD as a result of the incident at some stage prior to August 2012. 2593 Further, insofar as Prof McFarlane’s evidence could be interpreted as supporting a finding that on the balance of probabilities, the trauma of the incident caused the applicant’s schizophrenia, I do not accept that evidence, it having insufficient support from the relevant research. Retrospective diagnosis of PTSD 2594 Prof McFarlane was in a similar position to Dr Kutlaca insofar as he did not have the opportunity of examining the applicant until many years after the incident. 2595 Prof McFarlane first saw the applicant about seven and a half years after the incident and over five and half years since his first psychiatric admission to the RAH in October 2014. By then, the applicant had experienced considerable trauma 2001 Ibid at p 11. 2002 Ibid, noting such opinion was expressed prior to Dr Kutlaca becoming aware of the extent of the behavioural issues suffered by the applicant before the incident, which he stated, in evidence, might show the applicant was vulnerable to developing schizophrenia. 2003 Ibid at p 12, noting this opinion was, in any event, based on a description of the incident circumstances which significantly differed from the evidence given by the applicant, insofar as it was more sustained and more serious than that described by the applicant in evidence. -- 457 of 496 -- [2026] SADC 27 452 associated with the various psychotic episodes and hospital admissions in October 2012 and July and September 2013, the horrifying assault on his parents, and being detained for several years in James Nash House. 2596 Prof McFarlane’s second assessment of the applicant was not until January 2021, more than 10 years post-incident. Although the applicant was in James Nash House at the time of that assessment, he had spent time in Yatala Labour Prison between the first and second assessments, which he described as being particularly traumatic. 2597 There are no objective signs for PTSD. The diagnostic criteria for PTSD require a clinician to assess subjectively reported symptoms elicited from a patient by reference to those relevant criteria. The symptoms must be related to the relevant trauma (that is, the incident).2004 2598 Prof McFarlane necessarily relied upon the history provided to him by the applicant when making the retrospective diagnosis of PTSD. I accept the evidence given by Prof McFarlane as to how he recorded that history in his various reports, that is, he effectively wrote down the words used by the applicant during the interview and then reproduced those words in each report. As such, I accept Prof McFarlane’s evidence as to what the applicant told him during his two assessments of him.2005 2599 Prof McFarlane outlined in his first report and in his evidence why he considered the applicant fulfilled the criteria for PTSD both at the time he first saw him, and earlier, after the incident, at least prior to August 2012. 2600 In reaching those diagnoses, Prof McFarlane agreed that he relied upon and accepted the history provided to him by the applicant. There were aspects of that history which were simply not borne out by the evidence given by the applicant and in particular, the history as to what occurred in China, being a critical period in terms of considering the course (and cause) of the applicant’s schizophrenia. 2601 Prof McFarlane gave evidence that he had assumed, from what the applicant told him during his first interview in June 2018, that the applicant was in quite a dysfunctional state when he was in China.2006 2602 The applicant told Prof McFarlane that when he was in China, his concentration was terrible, such that he could not study and dropped out after the first month. Importantly, Prof McFarlane was not told that the applicant had not taken his Ritalin with him to China, nor was he aware that the applicant contracted severe dysentery during his first month there. He was aware the applicant had some prior concentration problems as evident from his prior diagnosis of ADHD. However, he had accepted and relied upon the applicant’s history that his 2004 Exhibit R74 at p 271, noting both DSM-V and DSM-IV-TR require that association. 2005 That is, as to the fact it was said, not as to the truth of what was said. 2006 T 1575.1-2. -- 458 of 496 -- [2026] SADC 27 453 concentration got worse after the incident such that it disrupted his functioning.2007 The applicant gave no such evidence at trial. 2603 Prof McFarlane relied on the applicant’s history that when he was in China, he had no confidence talking to teachers and became distrustful and overwhelmed being around people. The applicant’s evidence about what he did in China included evidence that he had made many friends in China and that he had spent most of his time partying and drinking, associating with a lot of high rolling people. He gave evidence that he had worked at a nightclub for much of the time he was there, being paid in alcohol to bring in foreign clientele. If that history is accurate, it is at complete odds with the history relied upon by Prof McFarlane. 2604 Prof McFarlane relied on the applicant’s history that when he was in China, the incident was on his mind a lot, he was generally withdrawn and sad and found he was not in control of his emotions. Although the applicant gave evidence that when he was in China, he would get drunk and had been in floods of tears, more than once, being overwhelmed by his emotions and the memory of being almost beaten to death, in cross-examination he described the distress he had experienced working at the orphanage and seeing the babies die there. Relevantly, his evidence was that it was soon after eight babies had died in a day that he started drinking more ‘and having those sorts of issues’.2008 2605 Prof McFarlane was unaware of the applicant experiencing this unrelated distress in China. The applicant also gave evidence that he wanted to stay in China as he was enjoying it, again being at significant odds with what he told Prof McFarlane during his first interview. 2606 Prof McFarlane also assumed, from the applicant’s history, that after leaving the student accommodation in China, he became homeless and slept on the streets on his skateboard, showering every three days in youth hostels, with the accommodation sourced for him by friends being infested by rats. While the applicant did give evidence that for about a month in China, he slept on the streets on his skateboard, he also gave evidence that for several months, including one period of about three months, he had stayed with friends in their apartments, albeit often sleeping on the couch. While his evidence was that he did not have a permanent home as such during that period, it painted a somewhat different picture of his time there, than that he described to Prof McFarlane during the first interview. 2607 Prof McFarlane was cross-examined at length about certain aspects of the evidence which differed from the history he had relied upon and/or which demonstrated the existence of other relevant matters for example, the volume of evidence identifying the behavioural issues experienced by the applicant at school. 2007 T 1529.12-1530.5. 2008 T 1400.9-10. -- 459 of 496 -- [2026] SADC 27 454 2608 Prof McFarlane acknowledged that there were differences in the applicant’s evidence about his time in China compared to what he had been told. He attributed those differences to his detailed and structured method of questioning the applicant and suggested that the questioning of the applicant at trial may not have been as detailed. There was simply no basis for Prof McFarlane to assert that the applicant had not been thoroughly and properly questioned at trial about this important period in his life. I reject that evidence. 2609 The applicant’s evidence is the only evidence we have of what occurred during the critical period during which he was in China from March to December 2011. 2610 Although Prof McFarlane acknowledged that it would be important to have other sources of information to verify the applicant’s history, he went on to say:2009 ... it doesn’t mean that you can’t make a reasoned assessment on the basis of what he said to me. It would be unusual for somebody to give the history that he gave me if there wasn’t some reality to it. 2611 In giving this evidence, Prof McFarlane was elaborating on why he maintained his opinion that the applicant had suffered PTSD after the incident, notwithstanding it was demonstrated to him that many aspects of that history were inconsistent with the applicant’s own evidence, and other aspects of that history established to be false. 2612 Insofar as Prof McFarlane relied upon a history which was not otherwise established by the evidence, the foundation for that history and the assumptions underpinning it, have simply not been made out, thus significantly undermining that opinion and the weight that can be afforded to it. 2613 Prof McFarlane described the symptoms reported to him by the applicant which he said fulfilled the relevant criteria for PTSD, both as at the time of the first interview in June 2018, and after the incident. He acknowledged there had been other traumas suffered by the applicant between the date of the incident and June 2018, most relevantly the attack on his parents, but explained that he was very careful to delineate what symptoms had arisen after the incident and what, for example, had arisen after that attack.2010 2614 As previously stated, contrary to what Dr Rowe found when he assessed the applicant in May 2012, Prof McFarlane found the applicant did fulfil criterion B, that is, that he persistently experienced the ‘traumatic event’ (the incident), in several ways, namely:2011 2009 T 1576.37-1577.3. 2010 T 1546.35-1547.1. 2011 Exhibit P59 at p 8. -- 460 of 496 -- [2026] SADC 27 455 • he had recurrent and involuntary intrusive memories of the assault that included the sensation of being hit and the pain (first symptom); • he had distressing nightmares that related specifically to him being assaulted (second symptom); and • he experienced significant distress on exposure to traumatic reminders, including marked physiological reactivity (and he gave the example of the applicant being unable to remain in a room if there was a television showing violent movies) and would be significantly agitated by such triggers (third symptom). 2615 Only one of these symptoms was required to fulfill criterion B. 2616 However, when the report is carefully considered, the first symptom relied upon by Prof McFarlane was a current symptom.2012 There is nothing to suggest the applicant told Prof McFarlane about experiencing such memories in the immediate aftermath of the incident or, for example, when he was in China. At its highest, as recorded by Prof McFarlane, the applicant described the incident as being something he would think about often and was on his mind a lot, both immediately after the incident and when he was in China.2013 2617 As to the second symptom, again, Prof McFarlane recorded this as a current symptom.2014 Under the heading, ‘Immediate Psychological Effects’, Prof McFarlane recorded that, ‘He cannot remember if he had nightmares but he did struggle to sleep, in part due to the pain.’2015 Prof McFarlane’s record of what the applicant told him about his time in China, did not include any complaint about nightmares associated with the incident. 2618 The first reference, in terms of time, to the applicant describing having suffered nightmares was in the context of him having become psychotic and he was seeing Dr Rowe. The applicant continued to see Dr Rowe until July 2013. Precisely when these nightmares started is difficult to glean, but from the way Prof McFarlane recorded the history, it can be inferred that it was at or after a time when he had started to think he was Jesus and the incident had been part of a plot to kill him.2016 In other words, these symptoms were experienced when he was actively psychotic. 2619 Importantly, Prof McFarlane agreed that psychosis of itself can cause PTSD.2017 I accept that evidence. 2012 Exhibit P59 at p 2. 2013 Ibid at pp 4-5. 2014 Ibid at p 3. 2015 Ibid at p 4. 2016 Ibid at p 5. 2017 T 1547.34-35. -- 461 of 496 -- [2026] SADC 27 456 2620 Although the applicant also described having nightmares involving his head crashing through glass, at a time after his return from China, he also said he found it hard to remember how his sleep disturbance had emerged.2018 It is by no means clear as to precisely when any such symptoms in fact started, which is important given Prof McFarlane dated the onset of the PTSD to sometime before August 2012. It was in August 2012 that Dr Rowe observed the applicant to have symptoms of attenuated psychosis, consistent with being in the prodrome for schizophrenia. If the PTSD caused the schizophrenia as per Prof McFarlane’s hypothesis, it therefore must have arisen before August 2012. 2621 The third symptom refers to an example based on the history Prof McFarlane recorded in his report under ‘Current Symptoms’ as follows:2019 He has nightmares about once a week and recently woke up with himself pounding on the wall in his room. Triggers to his memories are when he thinks about the past or when he is being interviewed. Sometimes these memories come so spontaneously that they make him wince. When he was first put in James Nash House he was unable to watch any violence on the television because in these situations he would panic and need to leave the room. He still avoids watching horror movies but will still watch action movies. These triggers have emerged since the assault on his parents. (my emphasis) 2622 The applicant was detained in James Nash House after the attack on his parents in October 2014. Prof McFarlane did not record any such similar symptoms as being part of the applicant’s history regarding his symptomology immediately after the incident, or in China, or when he first returned from China. 2623 Prof McFarlane did not agree with a proposition put to him in cross- examination that he had effectively used a blend of the applicant’s current symptoms, and those experienced in 2011, to make the retrospective diagnosis of PTSD, rather than trying to separate out the timing of such symptoms.2020 Prof McFarlane maintained he had been careful to differentiate symptoms that arose from the incident and those which arose from the applicant’s attack on his parents. He said, ‘I specifically address that issue where I say these symptoms have been more intense since the assault on is parents’.2021 2624 That evidence misstates in fact what Prof McFarlane reported, namely, that ‘these triggers have emerged since the assault on his parents’.2022 2625 Notwithstanding Prof McFarlane’s evidence to the contrary, I am satisfied that in making his retrospective diagnosis of PTSD, Prof McFarlane has erroneously attributed ‘current symptoms’ described by the applicant, in June 2018, as symptoms experienced by the applicant prior to August 2012. From what 2018 Exhibit P59 at p 5. 2019 Ibid at p 3. 2020 T 1579.11. 2021 T 1579.23-25. 2022 Exhibit P59 at p 3. -- 462 of 496 -- [2026] SADC 27 457 he reported as being the applicant’s history to him at that time, there was no clear history from the applicant that he had suffered any of those three symptoms, said to satisfy criterion B of the diagnosis at any time prior to August 2012. 2626 There are other difficulties associated with Prof McFarlane’s retrospective diagnosis. 2627 The differences in the history provided by the applicant as to his prior symptoms, in his second interview with Prof McFarlane, as compared to what he said in his first such interview, demonstrates the difficulty associated with making a retrospective diagnosis. In addition, Prof McFarlane acknowledged that he had given some prominence in his diagnostic formulation to an assumption that the applicant had sustained a mild traumatic brain injury in the incident. No brain injury was pleaded and there is no reference in the RAH notes to any brain injury, noting the results of the CT Head undertaken on 6 December 2010 showed no acute intra cranial abnormality.2023 2628 Further, I am satisfied, having regard to the evidence given by Prof McFarlane and Prof Nielssen and the various research papers tendered, that some of the symptoms which can be indicative of PTSD are also present in many other psychiatric illness, including schizophrenia and prodromal schizophrenia. 2629 As previously stated, I am satisfied that the applicant has a fixed belief that he has PTSD arising from the incident. He has held that belief since 2012 and therefore had such a belief when he was assessed by Prof McFarlane. Prof McFarlane agreed that it was possible that such a fixed belief might consciously or unconsciously affect the way in which a patient gave their history.2024 2630 I accept Prof McFarlane’s evidence that he did not discuss with the applicant his knowledge of the diagnostic criteria for PTSD and he did not see the need to do that as the applicant’s description of his symptoms was not couched in overly technical language.2025 Insofar as there was any submission advanced by the third and fourth respondents that the applicant consciously tailored his history of symptoms to meet that diagnosis, in the contest of this litigation, I reject that submission. I am satisfied the applicant genuinely, but erroneously, believes he has PTSD caused by the incident. However, I am also satisfied that this belief necessarily impacts on the applicant’s ability to now accurately recall when certain symptoms first arose and the context in which they arose. 2631 A diagnosis of PTSD necessarily relies on the accuracy of the patient’s reported symptoms. For reasons already discussed, the applicant was not a reliable historian at trial. I am satisfied and find that similarly, on each occasion the applicant was assessed by Prof McFarlane, his history was unreliable, insofar as it 2023 Exhibit P13 at p 5. 2024 T 1565.29-1566.2. 2025 T 1544.5-33. -- 463 of 496 -- [2026] SADC 27 458 contained multiple inconsistencies with other recorded histories provided by him, his evidence and the various contemporaneous medical records. 2632 Prof McFarlane assumed that both Dr Jasoria and Dr Kutlaca had also diagnosed the applicant with PTSD following the incident. I refer to my previous findings above. Dr Jasoria made no such diagnosis and, in any event, did not see the applicant until December 2012. In expressing an opinion that the applicant had suffered PTSD as a result of the incident, Dr Kutlaca erroneously assumed that both Dr Rowe and Dr Jasoria had previously diagnosed the applicant with PTSD. 2633 Prof McFarlane gave the following evidence:2026 Q. What if you were the only person to have observed it where would that place your opinion. A. I would be careful in considering my opinion and I would only come to that diagnosis if I felt it was justified on the basis of the history I obtained but clearly I wasn't the only clinician who came to that conclusion and I think accepting, you know, the observations of other clinicians is always important to take into account, particularly when somebody is suffering. 2634 There is no evidence that the applicant was diagnosed with PTSD by anyone before August 2012. 2635 I am satisfied that, as submitted by the third and fourth respondents, Prof McFarlane is an outlier in terms of his retrospective diagnosis of PTSD. 2636 For the reasons outlined above, I prefer and accept Dr Rowe’s contemporaneous evidence that as at May 2012, the applicant was not suffering PTSD. 2637 I do not accept Prof McFarlane’s opinion that the applicant developed PTSD as a result of the incident prior to August 2012. 2638 There is no other evidence that the applicant was diagnosed with PTSD at any time prior to August 2012, or at any time prior to October 2012, at which time he was detained as a result of developing attenuated psychotic symptoms, consistent with him being in the prodrome of schizophrenia at that time. Causation hypothesis 2639 Prof McFarlane is the only expert who expressed an opinion that there is a causal link between the incident and the applicant’s subsequent development of schizophrenia. 2026 T 1538.19-27. -- 464 of 496 -- [2026] SADC 27 459 2640 In addressing the basis for that opinion, it is important to first outline, in general terms, what is known, and generally accepted (including by both Prof McFarlane and Prof Nielssen) about schizophrenia. 2641 Schizophrenia, in its typical form, is a neurodegenerative disorder which manifests in a range of cognitive, behavioural and emotional dysfunctions. Symptoms include severe depression, mania, hallucinations and psychotic and delusional thinking and perceptions. The psychotic features of schizophrenia typically emerge between the late teens and the mid-30s, with onset prior to adolescence being rare. The onset may be abrupt or insidious, with many sufferers manifesting a slow and gradual development of a variety of clinical signs and symptoms.2027 2642 Although schizophrenia is known to be a genetically mediated condition, precisely what causes the development of schizophrenia remains unknown.2028 2643 There has been and continues to be a plethora of research specifically addressing the nature of the illness, its course and development. That research, and the opinions of both Prof McFarlane and Prof Nielssen, recognise that there are both genetic and environmental risk factors in the incidence of the illness. The research has been focussed on identifying risk factors to assist with early intervention and better treatment of the disease. 2644 Prof McFarlane gave evidence that trauma, and in particular PTSD, in an individual who is otherwise vulnerable to developing schizophrenia, can cause a stress response, which then activates a range of chemical and metabolic pathways, changing certain genetic pathways responsible for the onset of the illness.2029 2645 In his written reports, Prof McFarlane highlighted the role of the applicant’s PTSD, suffered post-incident, in the subsequent development of his schizophrenia.2030 Indeed, the way Prof McFarlane expressed his opinion as to the causal link between the incident and the applicant’s schizophrenia, was in the following terms:2031 ... it is my opinion that Mr Chattaway, on the balance of probabilities, developed a posttraumatic stress disorder following the assault that occurred on 5th December 2010. In the setting of these symptoms he progressively developed a prodrome of schizophrenia. 2646 In his evidence, Prof McFarlane emphasised that stress or trauma falling short of PTSD increased the risk of the onset of schizophrenia of itself.2032 2027 Exhibit R73 at pp 100-102; T 1522.9-1523.33; T 1565.29-1566.2. 2028 T 1500.28-30. 2029 See discussion of Prof McFarlane’s evidence at [1117]-[1119] herein. 2030 Exhibit P59 at pp 21-22. 2031 Ibid at p 22. 2032 T 1475.12-22. -- 465 of 496 -- [2026] SADC 27 460 2647 It was submitted by the respondents that Prof McFarlane had changed his evidence at trial, in circumstances where he was now less certain as to the accuracy of his retrospective diagnosis of PTSD. Prof McFarlane rejected such a proposition put to him a trial. 2648 I have carefully considered that submission. Prof McFarlane’s reports emphasised the specific role he believed the applicant’s PTSD played in leading to the onset of the applicant’s schizophrenia. However, the language used by Prof McFarlane in his first report demonstrates his view that ‘exposure to traumatic events’ is a contributing risk factor to schizophrenia, and that ‘traumatic events can trigger a neurobiological cascade, particularly the experience of an antecedent posttraumatic stress disorder...’. 2649 As such, I accept that since his involvement in this matter, Prof McFarlane has held the view that stress (or trauma) of itself is a relevant risk factor in the onset of schizophrenia, notwithstanding his reports emphasised the specific role played by PTSD in the applicant’s subsequent development of schizophrenia. I do not accept the submission made by the third and fourth respondents that Prof McFarlane effectively changed his evidence at trial. However, it is fair to say that the emphasis placed by Prof McFarlane on trauma itself as a cause of stress, rather than PTSD, assumed much more prominence at trial. 2650 Prof McFarlane described the ‘causal link’ between the trauma of the incident, and the subsequent development of the applicant’s schizophrenia, in several different ways. 2651 During his evidence-in-chief, Prof McFarlane explained that the fact the applicant developed anxiety and depression after the incident placed him in a ‘higher risk category’ for the development of schizophrenia.2033 He said, the incident was ‘the type of event that does provide and create a significant risk for the onset of the disorder.’2034 2652 In cross-examination, Prof McFarlane disagreed that the trauma of the incident ‘significantly increased’ the applicant’s risk of developing schizophrenia but reinforced his view that it increased that risk.2035 2653 He did not expressly give evidence to the effect that on the balance of probabilities, the trauma of the incident (absent PTSD) caused the applicant’s schizophrenia, notwithstanding the applicant’s submissions urged me to draw that inference. At its highest, Prof McFarlane’s evidence on this issue, came from his answer to a question about the validity of that aspect of his hypothesis relating to epigenetic activation. It was suggested to Prof McFarlane that the research only showed an association, rather than a causal link, between ‘traumatic stress 2033 T 1487.30-1488.10. 2034 T 1494.35-37. 2035 T 1518.22-1519.18. -- 466 of 496 -- [2026] SADC 27 461 disorder’ and schizophrenia.2036 The specific evidence given by Prof McFarlane was:2037 Again, this is about probability, and I think people would make similar arguments with the ideology of cancer, but I think as a reasonable working hypothesis at a level of probability greater than one as to one, I think it’s in the direction of causation, because these studies are based on levels of probability at a minimum of one as to 20, which is far greater than the levels of legal probability on the balance of probability. 2654 Although that evidence is difficult to understand, what it demonstrates is the difficulty of using medical research, which is based on studies and observed frequencies of various phenomenon in control groups in order to identify any association between such phenomenon and an illness, and applying that to the legal standard which requires proof as to causation on the balance of probabilities. I will discuss this further below in my discussion of the Bradford-Hill criteria. 2655 Prof McFarlane relied on several studies to justify and support his opinion that there was a causal link between trauma such as that experienced by the applicant as a result of the physical assault upon him and the onset of schizophrenia. 2656 I have carefully considered all of the research papers tendered in evidence. I have previously summarised those papers but will refer below to those aspects of that material which are the most relevant. Having done so, I am satisfied that Prof McFarlane has overstated the support provided by such research to his ‘causation hypothesis’. 2657 Chen’s study, based on data gathered from Swedish population register, concluded that there was an association between various traumatic events and psychiatric disorders, with individuals exposed to certain trauma, being at an increased risk of various psychiatric disorders, including schizophrenia.2038 Prof McFarlane emphasised that this sibling controlled study had made comparisons not just with the general population and a cohort who developed schizophrenia, but as between siblings, such that genetic risks were excluded. He emphasised the study’s finding that as between siblings, those exposed to any assault had a 2.8 times greater chance of developing schizophrenia than those who had not been assaulted.2039 He said:2040 So, assault of its own right was a significant contributor to the onset of schizophrenia. 2658 In my view, that misstates the study’s findings. 2659 ‘Assault’ within the meaning of this study, included physical assault, assault with a weapon and sexual assault. The increased risk of 2.8 times as described by 2036 T 1626.18-29. 2037 T 1626.30-37. 2038 Exhibit P67 at p E6, my emphasis. 2039 T 1482.1-22; Exhibit P67 at p E8, figure 3. 2040 T 1482.31-33. -- 467 of 496 -- [2026] SADC 27 462 Prof McFarlane therefore included a cohort who had suffered sexual assault. It was not confined to those who had suffered a physical assault with or without a weapon. Further, the study found that the greatest increased risk was observed during the first year after sexual assault, loss of child and injury with exposure to a toxic substance. Several of the other research papers identified sexual assault (particularly in children) as a significant risk factor. 2660 As such, Chen’s study does not support the specific finding as described by Prof McFarlane at paragraph 2657 herein. 2661 Further, I accept the evidence of Prof Nielssen, supported by various research papers,2041 that as that study was based on data collected from a population register, it carries some risk of potentially inflating the diagnosis of schizophrenia (in other words, it captures patients who have been classified as having schizophrenia but may in fact suffer from other disorders). 2662 Varese’s study examined the association between adversity and trauma in childhood (under age 18) and the later diagnosis of psychotic disorder, schizophrenia and schizoaffective disorder. The types of trauma were many and included childhood sexual abuse and childhood physical abuse (that is, ‘violent acts leading to physical injury or harm, such as harsh physical punishment.’).2042 2663 The authors noted that the association between adverse childhood events and psychosis had been a topic of enduring controversy, with much research on that topic, producing inconsistent results.2043 2664 The review found that childhood adversity and trauma substantially increased the risk of psychosis with an OR of 2.8. Further, the findings showed that if those risk factors (ie all of the trauma types included in the study) were entirely removed from the population and other factors remained unchanged, the number of people with psychosis would be reduced by 33%.2044 2665 What is important about this study is its focus on childhood adversity encompassing a broad range of different traumas, and its association with psychosis. While the applicant was technically a child at the time of the incident, he was aged 17 and 10 months. 2666 Further, while I do not doubt the incident was traumatic for the applicant, it can be distinguished from, for example, sexual or physical abuse perpetuated on a child by a parent or relative. This often involves the continued exposure of the child to the perpetrator of the abuse, meaning there is a fear the abuse may be repeated, even if it is not. This is fundamentally trauma of a very different type to that potentially arising from the incident. Without derogating from the seriousness 2041 Davis’s study and Jongsma’s study. 2042 Exhibit P70 at p 662. 2043 Ibid. 2044 Ibid at pp 665-666. -- 468 of 496 -- [2026] SADC 27 463 of the incident, it can be distinguished from many other serious types of childhood trauma. 2667 I also note the observations in Jauhar’s study from 2022, namely that Varese’s study used mostly retrospective designs, being a methodology that paper considered to be flawed. The authors stated:2045 ... a 2019 meta-analysis that compared retrospective measures of childhood maltreatment with prospective ones (eg, official records, contemporaneous interviews with parents, teachers, and the children themselves) reported only a low level of agreement ... between the two ... 2668 Okkels’ study was another study based on case register data and as such, its results may be inflated. The study found that persons with either ASR or PTSD had a significantly increased risk of schizophrenia, schizophrenia spectrum disorder and bipolar disorder, with those risks highest in the first year after diagnosis. Those risks remained significantly elevated after more than five years.2046 2669 Relevantly, the study found that traumatic stress, especially when occurring in childhood or early adulthood, seemed to be an important risk factor.2047 2670 However, the authors themselves noted some limitations from the study, including the possibility of reverse causation (that is, that persons predisposed to severe mental illness and prodromal symptoms might have an increased likelihood of experiencing trauma).2048 2671 Importantly, the authors noted that their study did not establish that persons who suffered trauma but did not go on to develop ASR or PTSD were at an increased risk of severe mental illness.2049 As such, this paper does not support Prof McFarlane’s proposition that the fact the applicant suffered the trauma of the incident, irrespective of whether he went on to develop PTSD, meant he was at an increased risk of schizophrenia. 2672 Shevlin’s study is concerned with effect of cumulative traumatic experiences on psychosis, rather than a single exposure to trauma of a type suffered by the applicant. 2673 The third and fourth respondents submitted that Prof McFarlane had acknowledged that a comment in that paper, namely that exposure to ‘a single trauma type did not increase the risk of psychosis’, applied to the applicant.2050 Prof McFarlane agreed with a proposition put to him to that effect. However, 2045 Exhibit R77 at p 846. 2046 Exhibit P71 at p 180. 2047 Ibid at p 183. 2048 Ibid. 2049 Ibid at p 184. 2050 FDN 318 at [321]; T 1632.16-19. -- 469 of 496 -- [2026] SADC 27 464 I consider that question misrepresented what was, in fact stated in the paper, namely: Results clearly demonstrate that multiple traumatic experiences were associated with an increased likelihood of psychosis. Although a single trauma type did not significantly increase the likelihood of psychosis, experiencing 2 or more types of trauma significantly increased the likelihood of psychosis, with dramatic increases associated with experiencing all trauma types. (my emphasis) 2674 The study questioned participants as to whether they had ever experienced any of five different types of trauma (ie sexual assault was one type, physical assault was another). Participants were only required to answer yes or no. They were not asked how many times they had experienced that type of trauma. There was no age limit on the categories of trauma which related to ‘childhood’ trauma. As such, what that passage means is that the study did not identify a significant increase in the risk psychosis for those participants who had only experienced one type of trauma. 2675 However, the study’s findings are relevant insofar as participants who reported only one trauma type were not significantly associated with a diagnosis of psychosis. That finding has incidental relevance to Prof McFarlane’s causation hypothesis but does not lend support to it. 2676 Fusar-Poli’s study did not specifically address Prof McFarlane’s causation hypothesis. 2677 There were other relevant research papers in evidence, including Radua’s study referred to by both Prof Nielssen and Prof McFarlane. Prof Nielssen relied on that study as indicative of a vast body of research which did not support Prof McFarlane’s causation hypothesis. He described that study as summarising the literature on the causes of psychotic illness, which included schizophrenia. He said that study ‘did not list psychological trauma or a diagnosis of PTSD among the identified risk factors for schizophrenia.’2051 2678 Prof McFarlane disagreed with Prof Nielssen’s interpretation of that study. He relied on what was stated in the study as follows:2052 This study has several conceptual implications. On an etiopathological level, our findings corroborate the notion that psychotic disorders can be related to adversities in an individual’s social milieu, whereby environmental exposures during critical developmental periods impact brain, neurocognition, affect and social cognition. It is also apparent that most of these factors are likely not specific to psychosis, but also other associated mental disorders. From a transdiagnostic perspective, the current study can provide a benchmark for comparing the magnitude of association of these factors with other nonpsychotic mental disorders. On a risk prediction level, these results may substantially advance our ability to 2051 Exhibit R76 at p 183. 2052 Exhibit P72 at p 61. -- 470 of 496 -- [2026] SADC 27 465 prognosticate the onset of psychosis in populations at risk, paralleling the recent advancements observed in genetics. 2679 Prof McFarlane highlighted the last sentence of that passage as supporting his opinion that the genes which led to the risk of developing schizophrenia could be activated by the stress response. 2680 A specific focus of this study was the level of evidence for the association of perinatal factors and psychotic disorders. The authors concluded that certain perinatal factors (for example, winter/spring season of birth in the northern hemisphere) was highly suggestive or suggestive of an association with psychotic disorders. 2681 The study also found only convincing evidence for two risk factors, that is, those persons already in the ultra-high-risk state for psychosis, and those with Black/Caribbean ancestry in England. As to the former, the authors suggested this result be interpreted with caution. As to the latter, the authors considered this group may better represent a true risk factor, with ‘increased socio-environmental adversities’, such as substance abuse, social isolation, social fragmentation and discrimination, contributing to the development of psychosis.2053 2682 The passage quoted by Prof McFarlane at paragraph 2678 herein needs to be interpreted in the context of these findings. 2683 Relevantly, PTSD was not one of the specific risk factors considered, or identified, in the study. 2684 In addition, the authors of that study acknowledged its limitations, expressly stating ‘association is not causation’ and highlighting the possibility of ‘reverse causation’ impacting on the results.2054 Further, the authors acknowledged their conclusions about the relevance of epigenetic risk factors and the interaction between environmental and genetic factors in psychotic disorders, remained to be elucidated.2055 2685 I agree with Prof Nielsen’s evidence as to the effect of that study. 2686 The recent study by Tandon specifically addressed the association between certain environmental factors and schizophrenia. The authors described there as being a well-established association between physical abuse, sexual abuse and neglect during childhood and an increased risk for subsequent psychosis. Other relevant factors were a history of migration, cannabis use, older paternal age at birth and birth in late winter or spring. Neither single episode adult trauma, nor single trauma itself were listed as ‘risk’ factors.2056 2053 Ibid at p 58. 2054 Ibid at pp 62-63. 2055 Ibid at p 63. 2056 T 1671.26-1672.6; T 1674.15-16. -- 471 of 496 -- [2026] SADC 27 466 2687 However, the authors concluded that pulling together all of the relevant information across different levels of analysis ‘there appear intriguing associations, but none are definitive or proven’.2057 2688 That conclusion succinctly summarises what can be deduced from the large volume of research undertaken on this topic. 2689 There is therefore some support for Prof McFarlane’s hypothesis that the trauma of the incident and/or any PTSD suffered by the applicant arising from the incident, may be associated with him having a slightly higher risk of subsequently developing schizophrenia. However, the research goes no further than that. 2690 Insofar as Prof McFarlane’s causation hypothesis relies upon a diagnosis of PTSD prior to the onset of prodromal schizophrenia, that evidentiary foundation has not been satisfied. 2691 It is pertinent to note that Prof McFarlane gave evidence that an individual with ADHD had a 3.5% chance of developing psychosis in contrast to a 1% chance in the absence of that diagnosis.2058 If that evidence is accurate, it equates to 3.5 times the risk. 2692 In his third report, Prof McFarlane referred to a long-term follow-up-study of a Danish psychiatric case register by Dalsgaard,2059 which showed that in a 31- year follow-up of ADHD cases, schizophrenia emerged in 3.8% of cases. 2693 Many of the studies recognised that being born in the late northern winter was a risk factor in the later development of psychosis. 2694 The applicant was, apparently, diagnosed with ADHD and was treated for that condition during childhood and adolescence. He was born on 1 February in the UK, that is, towards the end of the northern winter. While Prof McFarlane remained focussed on association between trauma and schizophrenia, he placed little weight on these other, identified relevant risk factors. 2695 I referred earlier to the difficulty of determining whether (and when) ‘association’ can equate to causation at law. This issue has been addressed recently by the Federal Court in McNickle v Huntsman Chemical Company Australia Pty Ltd.2060 2696 As outlined by Lee J, the Bradford-Hill criteria are not a set of hard and fast rules as to causation but they do provide a guide or set of commonplace propositions that the Court should take into account when determining whether or 2057 Exhibit R77 at p 876. 2058 T 1496.1-22. 2059 Noting a copy of this study was not in evidence. 2060 [2024] FCA 807. -- 472 of 496 -- [2026] SADC 27 467 not it should infer, on the balance of probabilities, that a particular exposure/event caused injury.2061 2697 The Bradford-Hill criteria have been expressed as those aspects of an association between two variables (ie exposure and event) that should be considered before inferring that the most likely interpretation of any association between those two variables is causation. The criteria include:2062 • the strength of the association; • consistency in the observed association (ie has it been repeatedly observed by different persons in different places, circumstances and times); • the specificity of the association; • temporality – the temporal relationship of the variables; • biological gradient; • plausibility -whether the expected causation is biologically plausible; • coherence; • experiment; and • analogy. 2698 Of these criteria, Prof McFarlane’s evidence expressly addressed the issue of temporality. However, Prof McFarlane agreed that the applicant’s schizophrenia emerged at a time when it was most likely, that is between his late teens and mid 30’s.2063 Further, the incident occurred in December 2010, more than 18 months prior to the likely onset of prodromal symptoms in around August 2012. 2699 Although Prof McFarlane couched his evidence in terms that the incident ‘triggered’ the onset of the applicant’s schizophrenia, he acknowledged the applicant was at risk of developing schizophrenia in any event and agreed it may have been ‘triggered’ by any number of events. That concession is important in circumstances where there is simply no reliable evidence of precisely what occurred to the applicant while he was in China. 2700 Prof McFarlane’s evidence also addressed the issues of plausibility and biological gradient, insofar as he outlined his view, that there was a plausible biological basis for his causation hypothesis (that is, that the trauma response resulted in the dysregulation of multiple neurological pathways, resulting in 2061 Ibid at [106]-[107]. 2062 Amaca v Booth Pty Ltd (2011) 246 CLR 36 at [44]. 2063 T 1522.12-21. -- 473 of 496 -- [2026] SADC 27 468 epigenic activation of the genes implicated in schizophrenia). Prof McFarlane specifically relied upon Okkels’ study as providing support for this theory. 2701 However, as previously stated, the research makes it clear that how genetic and environmental factors interact, and the nature of any role they play in the subsequent expression of schizophrenia, remains most uncertain. Relevantly, in Okkels’ paper, the authors concluded:2064 ... our study cannot establish whether trauma without traumatic stress disorder is a risk factor of severe mental illness. Further, our study tells nothing of the character, nor the severity of the trauma and how this might relate to the outcome. 2702 That final sentence is very important in the context of this case. 2703 As to the other criteria, the research, properly considered, taken at its highest, shows that the strength of any association between trauma (considered generically, rather than the specific trauma suffered by the applicant in the incident) and schizophrenia, is modest. 2704 Specifically, there is no scientific evidence to establish there being a strong or substantial association between trauma in the nature of physical assault and schizophrenia. 2705 There is an absence of evidence to support a finding that there is a consistency in any asserted association. There is no experimental or semi-experimental evidence to support the hypothesis. There is a body of evidence that acknowledges the usual and typical course (ie the natural history) for the onset of the illness, which provides a coherent explanation for why the illness emerged, when it did, in the applicant. 2706 Using the Bradford-Hill criteria as a guide, and having regard to all of the evidence, I am not satisfied that it is possible to infer, on the balance of probabilities, that there was a causal link, as understood in the proper legal context, between the incident and the applicant’s subsequent development of schizophrenia. 2707 Having carefully considered Prof McFarlane’s evidence, it is unclear to me whether he ever expressed the opinion that the incident was a necessary condition of the applicant’s subsequent development of schizophrenia, or that the incident materially contributed to the applicant’s schizophrenia or that it was ‘so connected with the applicant’s schizophrenia that, as a matter of ordinary common sense and experience, it should be regarded as the cause of it’. 2708 Insofar as he did express such an opinion, the research simply does not support such a finding. As Prof McFarlane recognised, association does not necessarily equate to cause. 2064 Exhibit P71 at p 184. -- 474 of 496 -- [2026] SADC 27 469 Prof Nielssen 2709 Prof Nielssen is a highly qualified psychiatrist who is eminently qualified to provide an expert opinion on the nature and cause of schizophrenia and on PTSD. I reject any submission to the contrary as advanced by the applicant. 2710 Prof Nielssen’s analysis of the relevant research was, that at its highest, it showed a weak association, and not a causative link, between psychological trauma and the neurological changes that result in the syndrome of schizophrenia. My analysis of the various research papers is in accord with that opinion, albeit I have preferred to describe the strength of the association as ‘modest;’, rather than ‘weak’. That difference in expression is of little consequence. I reject Prof McFarlane’s criticism of Prof Nielssen’s analysis of the available research on this issue. 2711 The applicant submitted that Prof Nielssen’s evidence was the only expert who expressed the opinion that the applicant was likely in the prodrome of schizophrenia at the time of the incident and as such, his evidence to that effect should be rejected. Ancillary to this was the applicant’s submission that there was no independent proof to support Prof Nielssen’s opinion that the applicant was on an inevitable course to schizophrenia at the time of the incident. 2712 There was some, but not extensive, evidence given at trial by Dr Rowe, Prof McFarlane and Prof Nielssen about the prodrome for schizophrenia. 2713 As previously stated, Dr Rowe gave evidence that he considered the applicant first demonstrated attenuated symptoms of psychosis in August 2012 and for that reason, he expressed the opinion that the applicant first became prodromal at that time. In expressing that opinion, he acknowledged he was not a ‘super expert’ on the prodrome of schizophrenia. 2714 Dr Rowe accepted that if, as the applicant claimed in his evidence, he was experiencing paranoid delusions involving the Stonemasons when he was at TAFE, that may indicate that those attenuated symptoms were suffered even earlier, around March 2012. Prof McFarlane gave similar evidence. 2715 I accept Dr Rowe’s evidence as to when he first noticed the applicant to present with such attenuated symptoms. 2716 In rejecting any assertion that the applicant was in the prodrome for schizophrenia at the time of the incident, Prof McFarlane gave the following evidence:2065 ... the symptoms that one looks for, for high-risk prodrome is having a attenuated positive symptoms of schizophrenia. Now, what we mean by attenuated positive symptoms - that's having symptoms such as hallucinations. A second category of prodrome is where people have brief intermittent psychotic symptoms and again there was no evidence that Mr 2065 T 1497.5-20. -- 475 of 496 -- [2026] SADC 27 470 Chattaway had experienced them. The third pattern is where the person has a steep decline in functioning plus a family history of the schizophrenia. Now, those three different classes would be defined as individuals who have got a high-risk prodrome and I didn't identify any of those patterns of symptomology in the history that he gave me or saw documented in the records in reports that the clinicians had seen him prior to December 2010.(my emphasis) 2717 Later, Prof McFarlane gave the following evidence:2066 Mr Chattaway, prior to the assault, didn't demonstrate any of the prodromal symptoms that would seem to be indicative of high risk. I previously mentioned these and they are listed in the courtroom paper that I have mentioned where, firstly, the patient must have one of the three issues. Firstly, a tenure of positive symptoms, that is hallucinations or delusions. Secondly, they would have had an episode of briefly intermittent psychotic symptoms. Or thirdly, that they have had a steep decline in functioning plus a family history of schizophrenia. Now, Mr Chattaway didn't have any of those phenomenon. (my emphasis) 2718 When Dr Rowe referred to ‘attenuated symptoms’, I am satisfied he meant symptoms of the type described by Prof McFarlane as indicative of the high-risk prodromal period. 2719 In his first report, Prof Nielssen expressed the opinion that it was quite likely that the applicant was already showing the early signs of an emerging psychotic illness prior to the incident.2067 In evidence, he described these as ‘prodromal features’.2068 Later, in his evidence, Prof Nielssen said ‘non-specific anxiety symptoms are very common in the prodromal, the pre-psychotic phase of schizophrenia.’2069 2720 Prof Nielssen opined, that in hindsight, the applicant’s prior diagnosis of ADHD and behavioural and learning difficulties identified in childhood and the pattern of impairment in executive function identified by Dr Clark in 2006 following neuropsychological testing, were ‘very likely to have been signs of the underlying neurological changes of emerging schizophrenia’.2070 2721 It is apparent from a careful review of Prof Nielssen’s evidence, that what he described as ‘prodromal features’ were those behavioural and learning difficulties. He was not suggesting the applicant had symptoms indicative of him being in the ‘high risk’ prodrome. 2722 This is evident from his second report2071 and from what he said in cross- examination:2072 2066 T 1505.5-16. 2067 Exhibit R76 at p 165. 2068 T 1661.12. 2069 T 1668.34-35. 2070 Exhibit R76 at p 182. 2071 Ibid 2072 T 1709.6-7. -- 476 of 496 -- [2026] SADC 27 471 It's my view that the symptoms that were called ADHD were probably prodrome or (sic) symptoms, signs of early neurological changes 2723 A prodrome is, by definition, an early sign or symptom indicating the onset of a disease or illness. 2724 When it was suggested to Prof Nielssen that none of the practitioners in this case had described the applicant as having any symptoms consistent with ‘prodromal schizophrenia’ before the incident, Prof Nielssen explained that it was a retrospective diagnosis, in the sense that looking back, those symptoms could be explained as emerging signs of psychosis.2073 2725 My interpretation of Prof Nielssen’s evidence is that it was not that the applicant was in the high-risk prodrome for schizophrenia at the time of the incident, that is, in the acute phase referred to by Prof McFarlane as outlined above.2074 I agree that the evidence does not demonstrate that at the time of the incident, the applicant had symptoms which suggested he fell into any of the three criteria described by Prof McFarlane as indicative of the high risk prodrome. 2726 Prof Nielssen gave the following evidence in re-examination:2075 Q. Perhaps I will just put it directly, Professor. What if anything is the difference between neurodevelopmental changes and the occasion of and prodromal behaviour. OBJECTION: MR KERIN OBJECTS QUESTION ALLOWED A. Yes, obviously it occurs on a continuum for some people and it's a very subtle onset in some people and of quite variable duration. So, some people have a fairly onset of acute psychosis and other people have a clear, morbid change at some point. The average is about a year before the emergence of acute symptoms. And that morbid change often is withdrawal; it is often irritability; it's often anxiety and mood symptoms as they appear to other people; and it's an insidious onset in many cases. 2727 Importantly, Prof Nielssen also gave the following evidence:2076 Q. What, if anything, does the timing of the prodromal features mean to your opinion about the course of the schizophrenia. A. Well earlier and more protracted prodromal features is usually associated with a more severe syndrome, a more disabling syndrome of subsequent schizophrenia, or from more treatment resistant, subsequent schizophrenia. 2073 T 1709.19-22. 2074 As per his evidence at T 1497.5-20. 2075 T 1722.8-23. 2076 T 1662.1-14. -- 477 of 496 -- [2026] SADC 27 472 Q. Does the timing of the prodrome, compared to the emergence and the retrospective diagnosis of schizophrenia have any impact on your opinion as to the role of psychological trauma. A. No, it doesn't, because I don't think psychological trauma is the cause, I think it's a neurological condition. 2728 I am satisfied that the ‘prodromal changes’ to which Prof Nielssen referred, were the ‘neurological soft signs’ or ‘pre morbid’ signs, or ‘clues’ which demonstrated, when looked at retrospectively, that the applicant was suffering early neurological change which later presented as schizophrenia, that is ‘pre- prodromal’ changes, using the language in Tandon’s study.2077 2729 I accept Prof Nielssen’s evidence, supported by Prof McFarlane, that schizophrenia is a neurodegenerative disorder affecting the frontal and temporal lobes of the brain. The illness typically exhibits a natural course with premorbid impairments, a prodrome, and a relapsing and remitting course following the onset of psychosis.2078 2730 The normal development of schizophrenia is by way of the slow and gradual development of a variety of clinically significant signs and symptoms before the frank illness emerges. Those signs can include disorganised behaviour and cognitive impairment. They may also include other signs such as depression or disorganised speech. However, the fact someone presents with one or more of those symptoms may be explained by many number of other reasons or common conditions. It is only once the illness emerges that the importance or relevance of those earlier symptoms becomes clear.2079 2731 It is irrelevant that none of the experts who assessed the applicant before the incident identified the applicant’s presentation as being consistent with the early stages of schizophrenia. There are no radiological, laboratory or psychometric tests for the disorder. Schizophrenia is only diagnosed after there are sufficient signs and symptoms, characteristic of the illness, present for certain periods, with some signs of the disturbance required to be present for a continuous period of at least six months.2080 It is only thereafter, with the benefit of hindsight, that the likely course or progression of the illness, in an individual, can be properly identified. 2732 There is no dispute that the illness emerged in the applicant at a time when it typically emerges, that is, in late adolescence or early adulthood. 2733 There is no dispute that as the applicant developed schizophrenia, he had a prior vulnerability to developing that illness. Prof Nielssen disagreed with Prof McFarlane’s assessment that the applicant was at a low risk of developing schizophrenia. Although precisely what constitutes ‘low’ is a matter of conjecture. 2077 Exhibit R77 at p 871. 2078 Ibid at p 863. 2079 Exhibit R73 at pp 99-103. 2080 Ibid at pp 99-100. -- 478 of 496 -- [2026] SADC 27 473 I am satisfied that the applicant had a greater risk than others of developing schizophrenia given his childhood diagnosis of ADHD and the fact he was born in the late northern winter. 2734 What precisely caused the applicant’s schizophrenia remains unknown. However, given what is known about the ordinary and typical progression of schizophrenia, I consider it is most likely that, consistent with Prof Nielssen’s opinion, the ‘pre-morbid impairments’ associated with the applicant’s emerging illness, expressed themselves in the applicant’s behavioural issues and cognitive difficulties experienced throughout his childhood and adolescence, before the incident. 2735 Having regard to the extensive scientific material before the Court as to the nature and features of schizophrenia, and my previous findings, I accept Prof Nielssen’s evidence that, in all likelihood, the applicant was on an inevitable neurological course to chronic schizophrenia in any event, at the time of the incident. 2736 I accept the evidence given by both Prof Nielssen and Dr Kutlaca that, on balance, the applicant would have developed schizophrenia irrespective of the incident. 2737 It is not for the respondents to prove the applicant’s schizophrenia has another cause, absent the incident. It is for the applicant to prove, on balance, a causal link between the incident and the development of his schizophrenia. I am not satisfied the applicant has done so. Summary of findings – Medical Causation 2738 As a child and in adolescence, the applicant struggled with both behavioural and learning difficulties. From a behavioural perspective, he found it difficult to concentrate, he was often late and disorganised for class and he had issues with time management generally. He was noted to be disruptive during class and several concerns were raised by his teachers about aggressive behaviour. 2739 When the applicant was still living in the UK, he was diagnosed with ADHD, dyslexia and dyspraxia. The applicant and his family came to Australia in 2002, when he was aged nine. When the applicant started school at St Peter’s, the school was aware of his diagnoses with dyspraxia and dyslexia, and provided him with appropriate support, including placing him in a special needs group. 2740 When the applicant first started school at St Peter’s, he was bullied. I am uncertain what the school did to deal with the students who were bullying the applicant. However, they were concerned at the applicant’s response to that bullying, that is, his propensity to react aggressively and with violence towards the perpetrator(s). This was what prompted the applicant’s referral to Mr Robinson in September 2002. -- 479 of 496 -- [2026] SADC 27 474 2741 Mr Robinson provided the applicant with strategies as to how to better respond to the bullying. He also suggested that the applicant undergo further testing for dyslexia and APD. Testing subsequently undertaken by Ms Hannell demonstrated the applicant to be highly intelligent (something also readily apparent to the Court in its observations of the applicant). However, tests showed that he had short term memory issues and found it very hard to write, symptoms which can be typical of a dyslexic/dysgraphic learning disorder. 2742 In 2005, the applicant’s parents arranged for him to be assessed by Ms Lindy Petersen, Child and Family Psychologist. I am satisfied from all of the evidence that they did so as the applicant was soon to move up to the senior school and they were concerned about his identified difficulties with concentration, organisation, memory for instructions, literacy and behaviour. Ms Petersen thought these difficulties were attributable to the applicant’s ADHD. 2743 It was in this context that the applicant was referred to Dr Lamb in 2006. Although he did not observe signs of ADHD in his examination of the applicant, he prescribed Ritalin, to assist with the applicant’s concentration difficulties. He also arranged for the applicant to undergo formal neurocognitive testing with Dr Clark. That testing did not find a pattern ‘strongly consistent’ with ADHD, however it did find evidence to suggest that the applicant’s cognitive difficulties were likely frontal in origin. 2744 Although Ritalin helped to improve the applicant’s concentration, he continued to struggle, both academically and behaviourally, throughout Years 8, 9 and 10. In 2009, when the applicant was in Year 11, he returned to see Dr Lamb, who was surprised at the small dose of Ritalin the applicant was taking and recommended an increase in the dose to bring him into the therapeutic range. 2745 During Year 11, the applicant made better progress academically, albeit he was still under achieving in terms of his intellectual capability and at times demonstrated poor concentration, poor organisation, lack of attention to detail and distractibility. 2746 At the start of Year 12, the applicant was seen by Dr Timothy Hill, Psychologist, primarily for the purpose of recommending some concessions be provided to him during the Year 12 examinations. 2747 As outlined by Dr Lamb in a letter to Dr Angas dated 19 June 2010, the applicant still struggled during Year 12. He was continuing to receive assistance from the special needs teacher and continuing to take Ritalin as needed. 2748 The applicant successfully completed Year 12, achieving an ATAR of 77.4. 2749 During Year 12, the applicant participated in ordinary social activities such as attending the school formal, socialising with his friends and spending time with girls. He participated in rowing during the first semester, water polo and swimming and undertook outdoor activities with the school Exploration Society. He was a -- 480 of 496 -- [2026] SADC 27 475 ‘House Captain’ in swimming. He did not play more physical sports such as rugby or AFL (as he had in his younger years) because of the anterior cruciate ligament injury he sustained to his right leg in 2008. 2750 Whether the applicant smoked cannabis between the ages of 16 and 18 is uncertain. However, he attended various parties during Year 12 and ‘Schoolies’ where he consumed alcohol. 2751 The applicant was offered and accepted a position at UniSA to study Construction Management. 2752 The incident occurred on 5 December 2010, shortly after the applicant finished Year 12. The applicant was alert and orientated when treated by ambulance personnel and conveyed to the RAH, where he remained until he was discharged home on 7 December 2010. 2753 As a result of the incident, the applicant sustained a naso-ethmoidal complex fracture, involving fractures to the nasal bones and nasal septum, a small fracture of the right orbital floor, the superomedial aspect of the right orbit, the inferior aspect of the right frontal sinus and a fracture of the left lamina papyracea, extending to the left frontal sinus. There is no evidence to support a finding that he suffered a closed head injury (or traumatic brain injury), noting that no such injury was pleaded. 2754 On 13 December 2010, the applicant underwent surgery performed by Prof David. This involved bone grafting of the orbital floor on the right side and reduction of the fracture of the left nasal bone. He experienced some numbness and swelling of the nasal tip thereafter. 2755 The applicant initially had two black eyes. He experienced some issues with double vision, which improved. He has continued to report slight double vision in his right eye with upward gaze and some loss of his sense of smell. 2756 The applicant did complain about some anxiety associated with the initial numbness experienced in his nose tip, and concerns about his facial swelling. However, the applicant did not complain of any other mental health issues to any medical practitioner in the period immediately after the incident, and before he left for China, notwithstanding he saw several medical practitioners during this period. 2757 On 5 January 2011, the applicant saw Dr Angas for the purpose of being vaccinated to travel to China to study. Two days later, a medical clearance was sought from Dr Lamb for the same purpose. Dr Lamb certified the applicant as fit to travel overseas and study overseas for 12 months. He was not told about the fact of the incident. 2758 As such, within about a month of the incident, positive steps were being made to send the applicant overseas, by himself, to study in China. This was -- 481 of 496 -- [2026] SADC 27 476 notwithstanding he had no prior experience speaking Mandarin, knew no one there and was travelling by himself having just turned 18. 2759 Neither Mr nor Mrs Chattaway had any concerns about the applicant’s ability to cope in China. There is no reliable evidence that they sought any specific advice from any medical practitioner as to the merits of the applicant undertaking that trip from a health perspective. 2760 I accept that there was a period of time, immediately post-incident, when the applicant was effectively housebound due to the physical impact of his injuries. He missed a trip to New Zealand with the Exploration Society. He likely missed out on attending other social activities, while he was physically recovering (ie going to the beach). 2761 However, I am not satisfied that the applicant was mentally incapable of leaving the house thereafter or reluctant to socialise, except with people he knew well, throughout the period post-incident, prior to leaving for China. The fact the applicant and his parents had no qualms about sending him by himself, to China, at the start of March 2011, to study for the rest of the year, demonstrates, and I find, that they thought he was both mentally and physically fit to do so. 2762 The applicant left for China around the start of March 2011 after having just turned 18. He did not take his Ritalin with him. He had a demonstrated history of concentration difficulties, even when taking Ritalin. It is therefore unsurprising that he dropped out of his studies within about two months of arriving. 2763 Very little is known about what happened while the applicant was in China. If, as the applicant claimed, he spent much of his time drunk, partying and seeing girls, this is inconsistent with him suffering any marked social withdrawal while in China. It may explain why he appeared dishevelled upon his return. 2764 The applicant did not experience any psychosis or delusions while in China, nor did he experience nightmares or flashbacks which were associated with the incident. 2765 Although the applicant gave evidence that while in China he would get drunk and be in floods of tears, which he attributed to his memory of being beaten nearly to death in the incident, he also described a great deal of distress associated with his work at the orphanage. If that evidence was accurate, it suggests that what the applicant witnessed while working in the orphanage had a significant impact on him and had much to do with any such episodes. 2766 I am satisfied on all of the evidence that the applicant left his university accommodation only months after he arrived in China. Whether he in fact spent any time sleeping on his skateboard on the streets is uncertain. I consider it likely and find that in the absence of having any other organised stable accommodation, the applicant spent periods of time living with the various friends he made, much of which was effectively ‘couch surfing’. -- 482 of 496 -- [2026] SADC 27 477 2767 I accept the evidence given by Mr and Mrs Chattaway that they both noticed changes in the applicant following his return from China. Physically he looked different as he had long hair. 2768 However, it was not until 16 April 2012, some three and a half months after the applicant’s return from China, that he sought referral to a specialist for any mental health issues. I am therefore satisfied that during the period between 26 December 2011 and mid-April 2012, the applicant’s mental health deteriorated. However, the fact he did not mention mental health issues during attendances on his general practitioners on 30 December 2011 or 17 February 2012, or when he saw Dr Lamb on 2 March 2012, suggests, and I find, that as at those dates, the mental health issues suffered by the applicant were not of such concern as to prompt the need for expert assistance. 2769 In about mid to late April 2012, in light of the deterioration in his mental health, the applicant dropped out of his TAFE studies in Surveying, which he had started in early February 2012. 2770 I accept Dr Rowe’s evidence and find that as at 27 April 2012, the applicant fulfilled the diagnosis for an adjustment disorder with a mixture of depression and anxiety. He had mild depressive symptoms and some anxiety. He was describing a loss of faith in human beings, which related to several things including difficult experiences at school, the incident and his perception that Prof David had ‘rescinded his testimony’ about the incident, which had then led to police charges being dropped. He was clearly bitter and upset about the latter. 2771 The applicant did not meet the formal criteria for a diagnosis of PTSD at a targeted assessment conducted by Dr Rowe on 17 May 2012. I am satisfied the applicant did not have PTSD at that time. 2772 During 2012, the applicant’s mental health continued to deteriorate. 2773 On 11 June 2012 the applicant underwent a CT scan of the head, which showed no abnormality. 2774 I accept the applicant’s evidence, supported by Dr Rowe’s records, that by August 2012, he was becoming increasingly paranoid and felt harassed by others. He was making impulsive decisions and experiencing possible delusions. The applicant was exercising incessantly, prioritising going to the gym, rather than going to his classes. At some time prior to the end of year exams, he stopped studying altogether. 2775 I accept the evidence of Dr Rowe and find that by August 2012, at the latest, the applicant was in the high risk prodrome for schizophrenia. 2776 On 11 August 2012, the applicant was arrested for multiple offences including property damage, after he jumped on the roof of a security vehicle parked -- 483 of 496 -- [2026] SADC 27 478 on King William Road, adjacent to Government House, and attempted to run from police. 2777 On 28 September 2012, the applicant was involved in a single vehicle car accident when he drove his vehicle into a tree. He hit his head during the accident but did not sustain any significant injuries. 2778 On 1 October 2012, the applicant fell after slipping on a wet floor and lacerated his left ear. He presented to the RAH Emergency Department where the diagnosis was concussion, with no loss of consciousness. 2779 On 15 October 2012, the applicant’s parents took him to the RAH Emergency Department because he had been running around the house naked, claiming to be a gorilla and expressing other delusional beliefs. He was admitted to the RAH where he was detained under an Intensive Treatment Order (Level 1). 2780 On 19 November 2012, the applicant was discharged home, to the care of his parents, with follow up care to be provided by Dr Rowe and the Southern Community Mental Health Team. His principal diagnosis upon leaving the RAH was of ‘First Episode Psychosis’ with ‘likely schizophrenia’. The applicant was not diagnosed with PTSD while at the RAH. During his admission, RAH staff sought clarification from Dr Rowe about whether he was of the view the applicant had PTSD and he confirmed that he had not made such a diagnosis.2081 That clarification was sought in the context of the applicant providing a history to RAH staff that he had been seeing Dr Rowe for treatment for PTSD. 2781 The applicant and his father were very concerned about the possible ramifications of a diagnosis of schizophrenia. When the applicant saw Dr Watson on 27 November 2012, he told Dr Watson that he did not accept the diagnosis of schizophrenia. 2782 On 7 December 2012, the applicant saw Dr Jasoria for the first time, for the purposes of obtaining a Centrelink Report to support an application for a Disability Support Pension. He told Dr Jasoria that he had PTSD, not schizophrenia. Dr Jasoria did not conduct a formal diagnostic assessment at that time. Although he thought the applicant had ‘psychosis likely schizophrenia’, he recorded the disabling condition on the report as PTSD, because he was concerned not to upset the applicant in circumstances where the applicant was adamant he did not have schizophrenia and because, in his mind, he thought the applicant had ‘elements of PTSD’. 2783 Dr Jasoria did not formally diagnose the applicant with PTSD at that time. At that time, the applicant was, in fact in the high risk prodrome for schizophrenia. 2081 Exhibit R42 at p 331. -- 484 of 496 -- [2026] SADC 27 479 2784 Since at least November 2012, the applicant has held a fixed but mistaken belief that he suffers from PTSD. 2785 The applicant has fulfilled the diagnostic criteria for schizophrenia since early 2013. 2786 On 10 July 2013, the applicant was conveyed by police to the RAH after his brother raised concerns about his increasing aggression. The applicant was admitted to the Flinders Medical Centre on 13 July 2013 and remained an inpatient there until he was discharged home on 2 August 2013, with his follow up to be managed by the Carramar team. The Principal Diagnosis was recorded as schizophrenia. 2787 On 5 September 2013, the applicant was admitted to the Margaret Tobin Centre after having been detained by SAPOL on 3 September 2013, when he pushed an elderly man off his bicycle, apparently in response to auditory hallucinations. The applicant continued to reject the diagnosis of schizophrenia during that admission. 2788 The applicant has been detained in a secure mental health facility since October 2014, when he stabbed both of his parents, multiple times, resulting in him being charged with attempted murder. This was an incredibly horrific and traumatic experience for all involved. 2789 While detained in James Nash House, Yatala, Farmfield and Broadmoor, the applicant has been isolated from family and friends, forcefully medicated and has endured multiple and many traumatic experiences associated with that detention. At the time of trial, the applicant remained detained at Broadmoor, suffering from treatment resistant schizophrenia. 2790 I reject Prof McFarlane’s retrospective diagnosis of PTSD, made following an examination conducted in June 2018, for the reasons previously explained. 2791 I reject Prof McFarlane’s causation hypothesis, for the reasons previously explained. 2792 I am not satisfied on the balance of probabilities that the incident was either: • a necessary condition of the occurrence of the applicant’s schizophrenia; or • so connected with the applicant’s schizophrenia that, as a matter of ordinary common sense and experience, it should be regarded as the cause of it; or • materially contributed to the development of the applicant’s schizophrenia, such that, as a matter of law, it can be regarded as having caused the applicant’s schizophrenia. -- 485 of 496 -- [2026] SADC 27 480 2793 The applicant has not proved, on the balance of probabilities, that as a result of the acts of omissions of any of the respondents, he suffered psychological injuries including PTSD and schizophrenia, and/or that the applicant’s schizophrenia was either caused or substantially caused by the incident, as alleged.2082 He has not proved that the onset of his schizophrenia was brought forward as a result of the incident.2083 Orders 1. The applicant’s claims as against the second, third and fourth respondents are dismissed. 2. I will hear the parties as to costs and any further orders to be made. 2082 SOC at [10A]. 2083 Noting there was no such allegation specifically pleaded in any event. -- 486 of 496 -- APPENDIX A Academic results for Nicholas Chattaway Year Level Semester Subject Semester Grade Common Grade Term 1 Grade Term 2 Grade Mid-Year Test Result Year 8 Semester 1 2006 Art BC B Design Technology CD D Drama B B English C D DE C Geography N/A DE E N/A German D C D D Language Studies C C C Mathematics Level 2 D DE C CD -- 487 of 496 -- [2026] SADC 27 2 Year Level Semester Subject Semester Grade Common Grade Term 1 Grade Term 2 Grade Mid-Year Test Result Physical Education BA B Science E CD D N/A Studies in Religion C C -- 488 of 496 -- [2026] SADC 27 3 Year Level Semester Subject Semester Grade Common Grade Term 3 Grade Term 4 Grade Examination Grade Year 8 Semester 2 2006 Art A A Design Technology D D English N/A C B N/A German E D D 0-E History B CD B 37-B Language Studies B CB B 47-B Mathematics Level 2 D D D 49-C Physical Education BA Science E DE ED 28-E Studies in Religion D D -- 489 of 496 -- [2026] SADC 27 4 Year Level Semester Subject Semester Grade Common Grade Term 1 Grade Term 2 Grade Mid-Year Test Result Year 9 Semester 1 2007 Art Elective D BC BC CD Design Technology DE D Drama BC B English N/A B B N/A Geography C C CB C Language Studies B B BA Mathematics Level 1 C B A C Physical Education CB C Science E D C E -- 490 of 496 -- [2026] SADC 27 5 Year Level Semester Subject Semester Grade Common Grade Term 3 Grade Term 4 Grade Examination Grade Year 9 Semester 2 2007 Art D E Art Elective D C E 53-C English D B D 45-D History C D DE 30-C Language Studies C B C 46-CD Mathematics Level 1 C C C 57-C Music Film C C Physical Education C C Science D DE D 40-D -- 491 of 496 -- [2026] SADC 27 6 Year Level Semester Subject Semester Grade Common Grade Term 1 Grade Term 2 Grade Mid-Year Test Result Year 10 Semester 1 2008 Biology E DE E E Chemistry E E N/A E Drama E BC C E English E E D E History D C D D Material Products D DC DC Mathematics Level 2 C BC BC C Physical Education N/A N/A Physics E N/A D E -- 492 of 496 -- [2026] SADC 27 7 Year Level Semester Subject Semester Grade Common Grade Term 3 Grade Term 4 Grade Examination Grade Year 10 Semester 2 2008 Biology C A C 50-CD Chemistry E D E 27-E Drama D DE DC English B C DC 73-B History C E C 57-C Material Products E CD E Mathematics Level 2 D CD CD 41-DC Physical Education N/A N/A Physics E D DE 13-E -- 493 of 496 -- [2026] SADC 27 8 Year Level Semester Subject Term 1 Grade Term 2 Grade Mid-Year Test Result Year 11 Semester 1 2009 Australian Studies BA C Biology D CD C Design CD D Economics CD D D English C CD DE Mathematics D E E -- 494 of 496 -- [2026] SADC 27 9 Year Level Semester Subject Semester Grade Common Grade Term 3 Grade Term 4 Grade Examination Grade Year 11 Semester 2 2009 Australian Studies D C Biology B C 55-C Economics D C 54-C English C D 58-C Geology C C 61-C Mathematical Applications C B 72-B -- 495 of 496 -- [2026] SADC 27 10 Year Level Semester Subject Assessment 1 Course Work Grade Assessment 2 Course Work Grade Assessment 3 Course Work Grade Assessment 4 Course Work Grade Year 12 Semester 1 2010 Biology C- C B- C+ Economics C C D C Geology C C- C C Mathematical Applications C- C+ B C English Communi- cations A- A- -- 496 of 496 --