ROBERT IAPADRE v SERCO AUSTRALIA PTY LIMITED [2026] SADC 86

Applicant: ROBERT IAPADRE Counsel: MR A LINDSAY SC WITH MS M DEMOSTHENOUS - Solicitor: TURNER FREEMAN LAWYERS Respondent: SERCO AUSTRALIA PTY LIMITED (ABN 44 003 677 352) Counsel: MR M DOUGLAS WITH MS L CARTER - Solicitor: SPARKE HELMORE LAWYERS Hearing Date/s: 06/05/2024, 07/05/2024, 08/05/2024, 09/05/2024, 10/05/2024, 13/05/2024, 14/05/2024, 15/05/2024, 16/05/2024, 17/05/2024, 20/05/2024, 21/05/2024, 22/05/2024, 07/08/2024, 16/09/2024 File No/s: DCCIV-13-2861 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. ROBERT IAPADRE v SERCO AUSTRALIA PTY LIMITED [2026] SADC 86 Judgment of his Honour Judge Burnett 21 July 2026 TORTS - NEGLIGENCE - STANDARD OF CARE, SCOPE OF DUTY AND SUBSEQUENT BREACH - AT COMMON LAW TORTS - NEGLIGENCE - MENTAL OR NERVOUS SHOCK OR PSYCHIATRIC HARM - AT COMMON LAW DAMAGES - ASSESSMENT OF DAMAGES IN TORT - PERSONAL INJURY The applicant, Mr Iapadre, was a guard employed by MSS Security Pty Ltd (MSS) at the Northern Immigration Detention Centre (NIDC). The Commonwealth of Australia was the owner of that facility. The respondent, Serco Australia Pty Ltd, was the operator of the NIDC and the facility was under its control. The respondent entered into a sub-contract with MSS for the provision, by MSS, of guards. On 14 December 2010, during the course of his employment at the NIDC, the applicant was directed by Serco employees to conduct patrol duties in an area known as the sterile zone. The sterile zone is an enclosed area of about four metres wide between electrified fences which extends around the whole of the NIDC and includes an area between the north and south compounds of the NIDC. There are no structures in the sterile zone where shelter could be taken. The applicant was patrolling in the sterile zone for a 12 hour shift on 14 December 2010 when a severe lightning storm struck near and around the NIDC at about 3.12pm. The lighting storm lasted about 40 minutes. The applicant developed significant stress at being trapped in the sterile zone and being exposed to the lightning storm (the Incident) and feared for his life. He did not have a key so as to be able to exit from the sterile zone. During the lightning storm, he contacted the control room of the NIDC (Control) and later, a Ms Williams, a Serco client services officer, and asked to be released from the sterile zone, but that request was refused as there was no replacement guard to take up the position. The applicant formed the view that he was going to die. -- 1 of 127 -- The applicant subsequently developed severe PTSD. The applicant claims that the respondent failed in its duty to take reasonable care for his safety and well-being and not to expose him in the course of his employment to unreasonable or unnecessary risks to his physical or mental health. The respondent denied that it breached its duty and contended, inter alia, that it was not foreseeable that a person such as the applicant would sustain a mental injury from patrolling in the sterile zone. As the Incident occurred in the Northern Territory, the common law of negligence applied to questions of liability. The Personal Injuries (Liabilities and Damages Act) 2003, (NT) (the NT Act) applied to the assessment of damages. Held: (1) The respondent breached its duty of care to the applicant by requiring him to work in the sterile zone during a lightning storm without providing him with a key or some other means to leave the sterile zone and/or by refusing his requests to leave the sterile zone. (2) In cases involving mental injury, the central inquiry as to the existence of a duty of care is whether the risk of the applicant sustaining a recognisable psychiatric illness was reasonably foreseeable in the sense that the risk was not-far-fetched or fanciful: Tame v New South Wales (2002) 211 CLR 317; Anwar v Mondello Farms Pty Ltd (2015) 123 SASR 321 applied. (3) It was reasonably foreseeable that a guard trapped in the sterile zone during a lightning storm, without any means of leaving the zone or seeking shelter, might develop a psychiatric injury: Hegarty v Queensland Ambulance Service [2007] QCA distinguished. (4) In determining whether there was a breach of the duty of care, the risk of harm must be identified at the appropriate level of generality, with a prospective enquiry: Ballina Shire Council v Moore [2023] NSWCA 155, Tapp v Australian Bushmen’s Campdraft and Rodeo Association Ltd (2022) 273 CLR 454 applied. The risk facing the applicant was that while being required by the respondent to undertake guard duties outside and in an enclosed area, such as the sterile zone, with no means to seek shelter or refuge, he would develop an extreme fear for his safety and suffer some mental injury. (5) Questions of breach are determined according to the criteria set out in Wyong Shire Council v Shirt (1980) 146 CLR 40. The respondent breached its duty of care to the applicant by stationing him in the sterile zone with no means to escape the lightning storm and by not responding affirmatively to his requests during the lightning storm to be allowed to leave the sterile zone. (6) Causation is assessed retrospectively: the court looks back at what happened and determines whether there is a link between the respondent’s conduct and the applicant’s harm: Vairy v Wyong Shire Council (2005) 223 CLR 422 applied. The medical evidence established that the applicant has PTSD and that the breach of duty by the respondent in relation to the Incident caused the PTSD. The triggering event for the PTSD was at the point of time when, after making a third request to Ms Williams to be allowed to leave the sterile zone, that request was refused unless he could find someone to replace him. It was at that point that the applicant formed the belief that he was going to die. (7) Under the NT Act, permanent impairment for the purposes of general damages is assessed, in the case of mental and behaviour disorders, according to the American Medical Association guide (AMA-6). (8) The loss sustained by an applicant who is unable to earn income because of an injury is for loss of earning capacity: Graham v Baker (1961) 106 CLR 340 applied. In relation to future or hypothetical events, the Court must assess the degree of probability that the event would have occurred and then adjust the award of damages to reflect that probability: Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638, Kallouf v Middis [2008] NSWSC 61 applied. (9) The applicant is entitled to damages for loss of earnings, including superannuation, although the amount of those damages should be discounted for contingencies. -- 2 of 127 -- (10) The applicant, as part of his damages for loss of earning capacity, is entitled to the value of the labour that he was not able to employ in the development of a property that he owned at Findon. Such a loss is the loss of capacity to build an asset of value: Spargo v Greatorex (1992) 59 SASR 1, Motor Accident Commission v Raccanello [2025] SASCA 146 applied. (11) The applicant’s claim for loss of rent had the Findon development been completed is rejected. That damage is pure economic loss consequent upon the loss of income and is not compensable: Mallonland v Advanta Seeds Pty Ltd (2024) 98 ALJR 956, Motor Accident Commission v Raccanello [2025] SASCA 146 applied. (12) The respondent’s claim that it is entitled to an adjustment for the collateral benefit comprising the capital gain that the applicant obtained through the purchase of a property on Henley Beach Road is rejected. The parties accept that the applicant must repay the workers compensation payment that was used to purchase that property. The capital gain on the property is an economic benefit that has been received through the investment decision made by the applicant. (13) The applicant’s claim for future economic loss is rejected. The Court is not satisfied, pursuant to s 21 of the NT Act, that the assumptions about the applicant’s future earning capacity accord with his most likely future circumstances had the injury not occurred. (14) The applicant has not established that the past gratuitous services with which he has been provided are or exceed 6 hours per week as required under s 23(2) of the NT Act. His sister in law, who provides these services, acts a carer for the applicant’s mother and commenced providing services to the applicant’s mother prior to the Incident. In these circumstances the services provided to the applicant are severable from the services provided to his mother and it is not possible to commingle all aspects of the services: White v Benjamin (2015) 70 MVR 188 applied. Civil Liability Act 1936 (SA) ss 31, 33, 42; Civil Liability Act 2002 (NSW) ss 5, 5B, 5I; Limitations of Actions Act 1936 (SA); Migration Act 1958 (Cth); Personal Injuries (Liabilities and Damages Act) 2003 (NT) ss 20, 21, 22, 23, 24, 24(a), 25, 26, 26(3), 27, 27(1), 27(3)(a), 27(3)(b); Superannuation Guarantee (Administration) Act 1992 (Cth); Work Health and Safety (National Uniform Legislation) Act 2011 (NT); Workers Compensation and Rehabilitation Act 1986 (SA); Workplace Health & Safey Act 2007 (NT), referred to. Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; Allianz Australia Insurance Ltd v Ward (2010) 79 NSWLR 657; Amaca Pty Ltd (under NSW administered winding up) v Booth (2011) 246 CLR 36; Anwar v Mondello Farms Pty Ltd (2015) 123 SASR 321; Australian Securities & Investments Commission v Rich (2009) 236 FLR 1; Ballina Shire Council v Moore [2023] NSWCA 155; Bonnington Casting Ltd v Warlaw [1956] AC 613; Caltex Oil (Australia) Pty Ltd v Dredge “Willemstad” (1976) 136 CLR 529; Chapman v Hearse (1961) 106 CLR 112; Clare & Gilbert Valleys Council v Kruse [2019] SASCFC 106; Commonwealth v McClean (1996) 41 NSWLR 398; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; Fox v Percy (2003) 214 CLR 118; Fox v Wood (1981) 148 CLR 438; Graham Barclay Oysters Pty Ltd v Ryan (2022) 211 CLR 540; Graham v Baker (1961) 106 CLR 340; Hegarty v Queensland Ambulance Service (2007) Aust Torts Reports 81-919; Ho v Powell (2001) 51 NSWLR 572; Hodges v Frost (1984) 53 ASLR 373; Husher v Husher (1999) 197 CLR 138; Jones v Dunkel (1959) 101 CLR 298; Kallouf v Middis [2008] NSWSC 61; Kavanaugh v Akhtar (1998) NSWLR 588; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; MacArthur Districts Motor Cycle Sportsmen Inc v Ardizzone (2004) 41 MVR 235; Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638; Mallonland v Advanta Seeds Pty Ltd (2024) 98 ALJR 956; March v E & M H Stramere Pty Ltd (1991) 171 CLR 506; Minister for Environment v Sharma [2022] FCAFC 35; Motor Accident Commission v Raccanello [2025] SASCA 146; Mulligan v Coffs Harbour City Council (2005) 223 CLR 486 ; Nagle v Rottnest Island (1993) 177 CLR 423; Palmer Tube Mills (Aust) Pty Ltd v Semi [1988] 4 VR 439; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167; Perre v Apand Pty Ltd (1999) 198 CLR 180; Plumridge v Pandelis [2022] SADC 42; Queen Elizabeth Hospital v Curtis (2008) 102 SASR 534; Road and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 ; Romeo v Conservation Commission of the Northern Territory (1988) 192 CLR 431; Rosenberg v Percival (2001) 205 CLR 434; Saadat v Commonwealth [2025] SASC 59; Smith v Samuels (1976) 12 SASR 573; Spargo v Greatorex (1992) 59 SASR 1; State of New South Wales v Fahy (2007) 232 CLR 486; Tame v New South Wales (2002) 211 CLR 317; Tapp v Australian Bushmen’s Campdraft and Rodeo Association Ltd (2022) 273 CLR 454; Todorovic v -- 3 of 127 -- Waller (1981) 150 CLR 402; Tunstill v SEC (WA) [1965] WAR 50; Vairy v Wyong Shire Council (2005) 223 CLR 422; Walker v Return to Work Corporation of South Australia (2020) 137 SASR 214; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; White v Benjamin (2015) 70 MVR 188; Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; Wyong Shire Council v Shirt (1980) 146 CLR 40, applied. -- 4 of 127 -- ROBERT IAPADRE v SERCO AUSTRALIA PTY LIMITED [2026] SADC 86 Civil Introduction 1 This judgment concerns a claim brought by the applicant, Mr Robert Iapadre (Mr Iapadre), for personal injuries alleged to have been caused by the negligence of the respondent, Serco Australia Pty Ltd (Serco). Mr Iapadre alleges that he suffered personal injuries on 14 December 2010 during the course of his duties as a security guard at the Northern Immigration Detention Centre (NIDC) in Darwin in the Northern Territory. The NIDC was owned by the Commonwealth. Serco was the operator of the NIDC, and the centre was under its control. The NIDC was used for the detainment of non-citizens pursuant to the provisions of the Migration Act 1958 (Cth). Serco sub-contracted some of the guard duties at the NIDC to MSS Security Pty Ltd (MSS). Mr Iapadre was employed as a security guard by MSS at the NIDC from October 2010 to December 2010. 2 Mr Iapadre claims that on 14 December 2010, during the course of his employment at the NIDC, Serco employees directed him to conduct patrol duties in an area known as the sterile zone. The sterile zone is an enclosed area of about four metres wide between electrified fences which extends around the whole of the NIDC. Access to, and egress from, the sterile zone, requires a key. It includes an area between the northern and southern compounds of the NIDC. Mr Iapadre claims that he was patrolling in that area for a 12 hour shift on 14 December 2010 when a severe lightning storm struck near and around the NIDC. He says that he had not been given a key so as to be able to exit from the sterile zone. Mr Iapadre contends that he developed significant stress at being trapped in the sterile zone and exposed to the lightning storm and feared for his life (the Incident). He said that through the use of a radio, he contacted the control room of the NIDC (Control) and later a Ms Williams, an officer employed by Serco, and requested to be released, but that request was refused and he was not released from the sterile zone as a replacement guard was not available to take up his position. 3 Mr Iapadre claims that as a result of the Incident, he developed post-traumatic stress disorder (PTSD) as well as irritable bowel syndrome and dysphagia. Apart from working for a short time at a detention centre at Inverbrackie in South Australia in 2011, he has not worked since the Incident. 4 Mr Iapadre claims that Serco was under a duty to take reasonable care for his safety and wellbeing and not expose him in the course of his employment to unreasonable or unnecessary risk of injury to his physical or mental health, and to comply with all relevant occupational, health and safety requirements. Mr Iapadre claims that Serco was negligent by, in broad terms, not taking reasonable steps to provide a safe system of work in that it did not provide him with a key so that he could leave the sterile zone, by unreasonably requiring him to remain in the sterile -- 5 of 127 -- [2026] SADC 86 2 zone, and not responding positively to his request to leave the sterile zone during the course of the lightning storm. 5 Mr Iapadre has also brought a claim pursuant to the Workplace Health & Safey Act 2007 (NT) (the WHS Act) for, in general terms, failing to provide a safe system of work. Mr Iapadre did not make any separate submissions in relation to the alleged breach of the WHS Act other than to submit that the same facts that made out the claim at common law, also made out a breach of the statutory duty.1 It follows that if the circumstances of the claim in negligence are made out, there is no need to separately analyse the claim for a breach of the WHS Act. It also follows that if the negligence claim is not made out, then the claim under the WHS Act will also fail. It is not necessary therefore to separately analyse whether a claim for a breach of the WHS Act gives rise to a claim in damages. 6 The Incident occurred in the Northern Territory and therefore as at 2010, it was not the legislation enacted under the civil liability reforms that governed the alleged liability of Serco but the common law of negligence. The relevant legislation in force in the Northern Territory, the Personal Injuries (Liabilities and Damages Act) 2003 (NT) the Act), applies to the assessment of damages. 7 Serco denies liability for any injuries that were sustained by Mr Iapadre and denies that the Incident occurred or that Mr Iapadre suffered the alleged injuries. It says that Mr Iapadre was under the direction, control, supervision, management and care of MSS and subject to the MSS work system. Serco further pleads, in the alternative, that any direction was a matter of policy and is not justiciable. In this context, Serco refers to the requirements that it had to observe in operating the NIDC, including statutory and contractual requirements that the detention centre operator ensure the security of the detention centre. Serco further contended that it did not owe a duty of care to Mr Iapadre as it was not reasonably foreseeable that Mr Iapadre would suffer mental harm (if the Incident in fact occurred). Serco pleads that if it is liable, then any damages ought to be reduced by reason of Mr Iapadre’s contributory negligence. 8 Serco pleads that the proceedings are statute barred as the proceedings were instituted outside the limitation period prescribed by the Limitations of Actions Act 1936 (SA). This plea was based on the possibility that the Incident occurred prior to 14 December 2010. However, at trial, Mr Iapadre brought his case on the basis that the Incident occurred on 14 December 2010. There is accordingly no need to consider the limitation defence or the corresponding claim of Mr Iapadre for an extension of time to bring the claim. 9 Causation and the quantum of the claim were also in dispute. It is not in dispute that Mr Iapadre has PTSD but it is in dispute whether that PTSD was caused by a breach of a duty of care by Serco. 1 Applicant’s written submissions dated 19 July 2024, [287]. -- 6 of 127 -- [2026] SADC 86 3 The Trial Applicant’s witnesses 10 By way of overview, Mr Iapadre called three lay witnesses and five expert witnesses. 11 Mr Iapadre gave evidence about all aspects of the claim. His sister-in law, Ms Teresa Iapadre (Teresa), gave evidence about the services that she provides to care for Mr Iapadre as well as observations about his current mental health condition. Her evidence relates to quantum and whether Mr Iapadre, if he establishes liability on the part of Serco, is entitled to damages for the gratuitous services that she provides. Mr Iapadre’s brother, Mr Stefano Iapadre (Stefano), gave evidence about building work that Mr Iapadre had performed on projects that Stefano had undertaken in the past and the quid pro quo nature of that work. That evidence is relevant to quantum and the loss that Mr Iapadre claims from not being able to undertake the development of a property that he owned at Findon and the conversion of that property into units. Stefano also gave general evidence about his observations of Mr Iapadre’s mental health and the change in his personality upon his return from Darwin. 12 The five expert witnesses called by Mr Iapadre were Mr Grant Kirkby, Dr Marco Giardini, Dr Theodore Athanasiadis, Mr Luke Alexander and Mr Hugh McPharlin. Mr Kirkby gave evidence about the lightning storm that struck Darwin on 14 December 2010. Dr Giardini gave evidence about the psychiatric illness, namely PTSD, that Mr Iapadre suffers from. Dr Athanasiadis gave evidence about the choking difficulties that Mr Iapadre experiences and its relationship to the PTSD that he has developed. Mr Alexander gave evidence about the likely rent that could be obtained if Mr Iapadre had carried out the proposed development at Findon and converted the existing vacant shops into units. Mr McPharlin gave evidence about the calculation of the quantum of Mr Iapadre’s claim, based on various assumptions that he had been provided with, as to Mr Iapadre’s future work options. Mr McPharlin did not question those assumptions. 13 This is a case where the credit of Mr Iapadre is critical to the determination of the claim. That is often the case in personal injury claims, particularly where there was no witness to the event or circumstance that caused the loss or injury, and the extent of the alleged personal injuries that have been suffered is dependent on the testimony of the applicant.2 That observation is apposite in the present case. There were no witnesses to the Incident and the written records relating to the Incident do not provide any further confirmation of its occurrence. 14 Mr Iapadre provided a written affidavit but in addition gave further evidence in chief about the issues relevant to his claim. He was subject to extensive cross- examination. I am satisfied that Mr Iapadre was an honest witness. He answered 2 Papamanos v Commonwealth Bank of Australia [2014] VSCA 167, [33] citing Palmer Tube Mills (Aust) Pty Ltd v Semi [1988] 4 VR 439, 448. -- 7 of 127 -- [2026] SADC 86 4 questions directly and responded to the questions asked. He did not seek to argue his case and made appropriate concessions in cross-examination. He was obviously very emotional when recounting the Incident and the danger he was experiencing. He was clearly very affected by having to relive the experience. I do not have any doubt that he was trying to give honest evidence and an honest account of the Incident. 15 That does not mean that his evidence was reliable in all respects. There were some inconsistencies in his evidence about the date of the Incident which differed from earlier statements that he had made. There was also inconsistencies in relation to his evidence about possessing keys at the time of the Incident. These matters did not cause me to doubt the honesty of his evidence. It follows that I reject the submission of Serco that the Incident was an invention by Mr Iapadre. I will deal with the reliability of his evidence later in these reasons when dealing with the specific issues that need to be determined. 16 Teresa Iapadre gave evidence. She is married to Stefano, who is the brother of Mr Iapadre. She therefore is the sister-in-law of Mr Iapadre. Teresa provided an affidavit (exhibit A27) and gave oral evidence. Her evidence covered two broad topics. First, she gave evidence about her observations of the behaviour of Mr Iapadre before and after the Incident. Secondly, she gave evidence about the work that she did for Mr Iapadre. Since 2010, Teresa has been the carer for her mother-in-law, Ms Evelina Iapadre (Mr Iapadre’s mother). As Mr Iapadre lived with his mother, Teresa also undertook some voluntary work for him. This evidence is relevant to the claim of Mr Iapadre for damages for the voluntary services that were provided to him. 17 Teresa’s evidence was not controversial, and her credibility was not challenged. The only contentious aspect of her evidence concerned her estimation of the number of hours per week that she spent in caring for Mr Iapadre. That relates more to how that estimation was made rather than the credibility of Teresa. I will discuss that evidence when dealing with that topic later in these reasons. 18 Stefano was also a minor witness. He also provided an affidavit (exhibit A28) which he supplemented with further evidence in chief. He was subject to minimal cross-examination. He gave evidence about Mr Iapadre’s life before he went to Darwin and in particular the building projects that he undertook and his general capabilities as a builder. He also gave evidence about Mr Iapadre’s behaviour since he returned from Darwin. I accept his evidence. 19 Mr Kirkby was an expert on lightning. He provided two reports dated 16 March 2020 (exhibit A29) and 12 December 2023 (exhibit A31). His first report dealt with lightning storms in general, the application of the Lightning Protection Standard, the risks associated with being caught in a lightning storm and the steps that could be undertaken to minimise that risk. In his second report, he provided an opinion on the lightning storm that occurred on 14 December 2010 and how that would be perceived by someone in the sterile zone at the time, and the risks -- 8 of 127 -- [2026] SADC 86 5 associated with that storm. He elaborated on that evidence in examination in chief. Mr Kirkby’s expertise was not challenged in cross-examination. He was cross- examined in relation to the opinions expressed by the expert called by the respondent, Dr D’Alessandro, who focused on the probability of death from lightning strikes. Mr Kirkby accepted the opinions of Dr D’Alessandro. There was nothing put to Mr Kirkby that caused me to doubt his opinions. I accept his evidence. 20 Dr Giardini is an experienced and well qualified psychiatrist. He has been the treating psychiatrist of Mr Iapadre since 24 September 2012. He has prepared a number of reports dated 28 April 2016, April 2019, 8 October 2021, and 27 April 2022 (exhibits A32, A34 and A35). He also supplemented those reports with the evidence he gave in examination in chief. He was subject to cross-examination. 21 Dr Giardini diagnosed Mr Iapadre as having PTSD. He describes the severity of that condition as well as its cause (which he ascribed to Mr Iapadre’s experience in the sterile zone) and its consequences. The psychiatrist engaged by Serco, Dr Schutz, agreed that Mr Iapadre had PTSD but disagreed as to its severity and cause. Also in issue is the extent to which Mr Iapadre suffers from irritable bowel symptom caused by his PTSD. I will discuss my findings about all of these matters later in these reasons. 22 Dr Athanasiadis is an ear, nose and throat surgeon with a sub-speciality in laryngology. He was a very experienced and well qualified expert. He is the immediate past president of the Laryngology Society of Australasia. He provided a report dated 4 May 2021 (exhibit A36) which deals with the sensations of coughing and choking that Mr Iapadre experiences. Dr Athanasiadis concluded that the dysphagia was mostly related to the PTSD. The respondent’s expert, Dr Raj, disagreed with this conclusion. I will discuss my findings about all of these matters later in these reasons. 23 Mr Alexander is a director of a real estate agency. He prepared a report dated 26 April 2024 (exhibit A39) and gave evidence about the rent that might have been obtained from the units, had Mr Iapadre completed the Findon development. This issue is relevant to the quantum of Mr Iapadre’s claim and the loss that he might have suffered by not being able to complete the development because of the PTSD he sustained in the Incident. Mr Alexander was of the opinion that the units could command a rental of between $430-480 per week as at 2024. His opinion as to the likely rent was in the nature of an appraisal. It was not a detailed opinion. His report did not contain a statement that he had all necessary inquiries before expressing his opinion. His appraisal was based on photographs with which he had been provided and based on an assumption as to the quality of finishes. Further, he had not analysed in detail the impact of differing sizes of the units for the purposes of assessing the rent. Although I accept that Mr Alexander was an experienced real estate agent and familiar with the market in Findon, the qualifications that have been referred to above, affect the degree of certainty that can be attached to his opinions. -- 9 of 127 -- [2026] SADC 86 6 24 Mr Iapadre also called Mr McPharlin who is an expert forensic accountant. Mr McPharlin is a very experienced and qualified forensic accountant. He prepared two expert reports dated 28 May 2021 and 18 April 2024 (exhibits A40 and A41 respectively) which deal with the calculation of the loss suffered by Mr Iapadre on the assumption that he developed PTSD as a result of the Incident. Mr McPharlin was given various assumptions as to what Mr Iapadre would have done had he not developed PTSD. Mr McPharlin then prepared a number of scenarios based on those assumptions. He prepared those scenarios taking into account income tax, superannuation and other expenses. Ultimately, the question of quantum will be determined on the findings that the Court makes in relation to the underlying assumptions and then applying the appropriate calculations to those findings. Respondent’s witnesses 25 Serco also called a number of expert witnesses. Dr D’Alessandro is an expert in the field of lightning. He has a PhD in experimental computational physics and signal processing from the University of Tasmania. He has focussed on the field of lightning protection since 1997 and in 2007 established his own consultancy, specialising in that area. Dr D’Alessandro has provided two reports dated 6 December 2021 and 13 April 2022 (exhibits R69 and R70). 26 Dr D’Alessandro was obviously expert in his field. His reports focussed on the probability of a lightning strike causing death or serious injury. His calculations and conclusions on this topic are accepted. What is in issue is how these conclusions should be applied to the claim made by Mr Iapadre and whether, and to what extent, the probabilities of a strike are a relevant matter for the Court to consider. 27 Mr Wigg is a forensic accountant. He prepared two reports (exhibits R73 and R43) which dealt with Mr Iapadre’s alleged loss of income. Mr Wigg was an experienced and well qualified expert. There was no challenge to the methodology that he employed. Like Mr McPharlin, Mr Wigg was asked to make certain assumptions as to what Mr Iapadre would have done, had he not suffered from the PTSD. It is the adoption of these assumptions that caused the differences of opinions between Mr Wigg and Mr McPharlin. I will discuss those differences later in these reasons. 28 Dr Raj was an ear, nose and throat surgeon specialist. He did not have a sub- speciality. There was no doubt or challenge to his expertise. He saw Mr Iapadre on one occasion and prepared a report for the purposes of these proceedings (exhibit R75). His report and evidence related to the swallowing difficulties experienced by Mr Iapadre and whether they could be attributed to the PTSD. The opinion provided by Dr Raj was that it was a neuromuscular problem that was causing Mr Iapadre’s swallowing difficulties and not the PTSD. He gave evidence that he could not measure whether the PTSD increased the problem. 29 Dr Schutz was a psychiatrist called by Serco. He saw Mr Iapadre for the purposes of these proceedings and prepared a report (exhbit R90). Dr Schutz found -- 10 of 127 -- [2026] SADC 86 7 that Mr Iapadre’s account of the Incident was reasonably consistent with PTSD and a mood disorder. He was of the opinion that, based on the accuracy of Mr Iapadre’s account, the triggering event for the PTSD was the lightning strike. The multiple stressors suffered by Mr Iapadre at Inverbrackie would not have been sufficient to trigger PTSD. He said that Mr Iapadre’s PTSD was sub-syndromal until late 2011. He said that 50-60% could be attributed to the claimed storm and about 40-50% to events at Inverbrackie. He agreed that the PTSD might have emerged without the triggers of Inverbrackie. He agreed that Mr Iapadre had no work capacity. Dr Schutz applied an overall impairment of 20% to Mr Iapadre based on the PTSD and apportioned 10% to the lightning storm and 10% to the events at Inverbrackie. Dr Schutz said that exposure to an event such as a lightning storm is normally seen as one incident and it is not usually explored within a time range. He said that it was in the realm of speculation, but it is not implausible to say that the PTSD developed within a few minutes. He said that increased exposure to the event and an increasing feeling of helplessness could have aggravated or escalated the presentation of PTSD. 30 Serco also called four lay witnesses who gave evidence about the operation of immigration detention centres and in particular, the NIDC. Mr Richards was an operations manager at the NIDC between 2007 and 2010 and held that position at the time of the Incident. He was responsible for about 20-25 staff in that capacity. He did not have any recollection or knowledge of the Incident. He gave evidence, by way of an affidavit (exhibit R76) and in person about the layout and operations of the NIDC and the systems that were employed there. I accept that Mr Richards was an honest and generally reliable witness, although there are some instances, referred to later in these reasons, where his evidence is contrary to a number of other witnesses about the operations of the NIDC. In those instances, I prefer the evidence of those other witnesses. He generally was prepared to make concessions. He was occasionally defensive, particularly in relation to the circumstances in which a guard could be released from duties in the sterile zone and structures inside the sterile zone, but that did not cause me to doubt his overall honesty. 31 Mr Hayes was a senior executive at Serco. In 2010, at the time of the Incident, he was the centre manager of the Christmas Island Detention Centre. He was not at the NIDC at the time of the Incident and therefore did not know Mr Iapadre. In October 2011, he took up the position of regional manager-north for Serco. In this position, he was responsible for overseeing a number of detention centres. He gave evidence about the relationship between MSS and Serco and the respective training received by employees of those organisations. He also gave evidence about the operations of detention centres including the use of keys and patrolling of the sterile zone. I accept Mr Hayes as an honest witness. However, the weight to be given to his evidence is minimal because he was not working at the NIDC at the relevant time and further, because his senior position at Serco meant that he was not familiar with the details of the day to day operations of Serco officers and MSS guards. -- 11 of 127 -- [2026] SADC 86 8 32 Ms Williams was a Serco employee who at the relevant time was employed at the NIDC. She commenced employment at the NIDC in November 2009 as a client services officer and was promoted to a client services manager in 2010 and later in 2011, was further promoted to acting operations manager. She provided an affidavit for the purposes of these proceedings (exhibit R80) and also gave evidence. She gave evidence about the layout of the NIDC including the sterile zone and patrolling in that zone, operational issues, including the relationship with MSS guards, the morning meeting and the issuing of keys and the functions of Control. She did not specifically recall Mr Iapadre although it was obvious that she had contact with him when he worked at the NIDC as she provided a reference for him. She did not recall the Incident or being contacted by Mr Iapadre on that day. Ms Williams gave her evidence in a straightforward way and made appropriate concessions. There was no reason to doubt her evidence. I accept her as an honest and reliable witness except for one instance regarding the allocation of duties at the handover meeting where I prefer the evidence of Mr Iapadre. 33 Mr Trigar was another Serco employee who gave evidence. He worked at the NIDC from 2007 to 2014 in a variety of roles including detention services officer, detention services manager and operations manager. He also provided an affidavit (exhibit R88) as well as giving oral evidence. He does not recall Mr Iapadre or the Incident. He gave evidence about operational matters such as the sterile zone, Control and the use of keys. I accept Mr Trigar as an honest and reliable witness. Jones v Dunkel 34 Both parties made submissions that the other party should have called certain witnesses and that their failure to do so means that an adverse inference should be drawn against them pursuant to the rule in Jones v Dunkel. That rule states that an adverse inference may be drawn from the failure of a party to adduce particular evidence, where such evidence would reasonably have been expected. In Jones v Dunkel, Menzies J stated:3 In my opinion a proper direction in the circumstances should have made three things clear: (i) that the absence of the defendant Hegedus as a witness cannot be used to make up any deficiency of evidence; (ii) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence; (iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference. Kitto J stated:4 It was right enough to point out, in effect, that the evidence given might be the more readily accepted because it had been left uncontradicted, and that the omission to call Hegedus as 3 (1959) 101 CLR 298, 312; [1959] HCA 8. 4 Ibid, 308. -- 12 of 127 -- [2026] SADC 86 9 a witness could not properly be treated as supplying any gap which the evidence adduced for the plaintiff left untouched. 35 Davies A-JA (dissenting on the facts) in Ho v Powell5 explained the principle as follows: The rule permits evidence to be given greater weight and an inference or inferences to be more readily drawn when the other party who might have called evidence to the contrary has chosen not to do so. In Commonwealth Australia v McLean (Court of Appeal, 31 December 1996, unreported), Handley JA and Beazley JA said: '... the rule typically applies to strengthen or weaken an inference otherwise available on the evidence for the benefit of the party not in default. 36 Austin J in Australian Securities & Investments Commission v Rich6 indicated that there are three conditions for the application of the principle: 1. The missing witness would be expected to be called by one party rather than the other (which implies that the witness must be available to give evidence); 2. His evidence would elucidate a particular matter, which is a live matter at the trial; and 3. His or her absence is unexplained. The onus of establishing the unavailability of a witness, for the purposes of the principle in Jones v Dunkel, rests on the party against whom the principle would operate.7 37 The principles in Jones v Dunkel were summarised in Kuhl v Zurich Financial Services Australia Ltd (Kuhl):8 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 a 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. [citations omitted] correct and vary its reasons for judgment so as to address inconsistencies and apparent oversights when making its ultimate findings. 38 Mr Iapadre submitted that an adverse inference should be drawn against Serco for its failure to call either employees of Serco or MSS. I accept that it was 5 (2001) 51 NSWLR 572 [76]; [2001] NSWCA 168. 6 (2009) 236 FLR 1; [2009] NSWCS 1229. 7 Australian Securities & Investments Commission v Rich (2009) 236 FLR 1; [457], see also Cross on Evidence, at [1215] and the majority judgment in Smith v Samuels (1976) 12 SASR 573. 8 (2011) 243 CLR 361; [2011] HCA 11, [63]. -- 13 of 127 -- [2026] SADC 86 10 within the power of Serco to ascertain whether particular employees or former employees of Serco and possibly MSS, were likely to be able to give relevant evidence. However, without identification of the particular witnesses, it can be concluded that a witness would have given evidence which would have been relevant to a particular issue at trial. Mr Iapadre in his written submissions says that there was a possibility that other witnesses could have given evidence about how Mr Iapadre had left the sterile zone on previous occasions, how he was placed in the sterile zone on the occasion of the Incident and how his keys were removed and the content of his radio calls. It is not sufficient, to invoke the rule in Jones v Dunkel, to say there was a possibility that witnesses could have given that evidence. 39 Further, without identification of the particular witness, it is difficult to conclude, in the case of a former employee of Serco or MSS, that their absence was unexplained. 40 In these circumstances, I do not consider that the rule in Jones v Dunkel has any application against Serco. 41 Serco also sought to invoke the rule in Jones v Dunkel against Mr Iapadre. Serco submitted that it was equally open for Mr Iapadre to have called a Mr McAnally even though Serco had intended to call Mr McAnally but advised that it no longer intended to call Mr McAnally as a witness due to his family circumstances and the fact that the same evidence could be given by other witnesses. It has not been shown that: (1) in these circumstances, Mr Iapadre could be expected to have called Mr McAnally; (2) Mr McAnally could have given evidence relevant to an issue at trial; (3) the failure to call Mr McAnally was unexplained. 42 The same comments apply in relation to the failure on the part of Mr Iapadre to call any unidentified Serco or MSS employee. 43 The rule in Jones v Dunkel also has no application against Mr Iapadre. Mr Iapadre’s personal background 44 Mr Iapadre is now 67 years of age. He was therefore about 51 years of age when the Incident occurred. He was married but divorced in 1984 and since that date has lived with his parents in Lockleys, apart from the brief time that he spent in Darwin in 2010 when working at the NIDC. Mr Iapadre does not have any children or other dependants. Mr Iapadre’s evidence about the matters described below was not disputed. 45 Mr Iapadre partially completed year 12. He has since that time completed a number of vocational training courses, mainly in tourism, transport and marketing. -- 14 of 127 -- [2026] SADC 86 11 46 Mr Iapadre started his working career as a sales assistant at Harris Scarfe in 1974. He worked there until 1976 when he commenced work at Australian National Railways (ANR) undertaking administration work. He was made redundant from ANR in 1998. 47 Mr Iapadre gave evidence that while working at ANR, he undertook casual building and handyman work for friends and family. He said that he helped with tiling, painting, bricklaying, cabinetry and plastering. He obtained a builder’s licence in 1992 which he said involved undertaking some tests. He said that once he had obtained his builder’s licence, he undertook a significant amount of casual building work (whilst still working at ANR) including: (1) renovating his parent’s then house at Prospect; (2) renovating the house his parents built at Lockleys, including putting on an extension, repainting the house and undertaking tiling; (3) building a 3 storey house on an empty block at Bedford Park that he had purchased and personally performing the concreting, carpentry, bricklaying, plastering, painting and tiling. Other family members assisted. He said that this project extended over a number of years and he needed the assistance of a plumber, electrician and bricklayer towards the end. He said that he paid the plumber and the bricklayer but not the electrician because the electrician performed the work as part of a barter exchange. 48 Between 1999 and 2000, Mr Iapadre worked as a tour guide for Trans Adelaide. He ceased paid employment at that time but continued undertaking building and handyman work for family and friends. 49 In September 2001, Mr Iapadre purchased four of the seven vacant shops at 63 Angley Avenue, Findon (the Findon Property) for the sum of $50,000 with a plan to develop that property (the Findon Development). 50 Mr Iapadre obtained a commercial builder’s licence in 2002. For a time, he investigated undertaking a development of some land that he had purchased at Hilton but ultimately decided not to proceed with that development. 51 From 2005 to 2010, Mr Iapadre became the full time carer for his father. He received a Centrelink carer’s pension. He ceased this role when his father died on 7 September 2010. 52 Mr Iapadre obtained a security licence in 2009 which entitled him to work as a security guard. He started employment with MSS and also at Liamsans Security as a casual security officer in January 2010 and March 2010, respectively. He received an offer from MSS to work full time at NIDC in Darwin. He decided to accept that offer and commenced work at the NIDC on 19 October 2010. -- 15 of 127 -- [2026] SADC 86 12 53 Mr Iapadre was employed as a casual security officer pursuant to a letter of appointment dated 25 January 2010 (p 1263 of exhibit A5). He performed some casual security work in Adelaide in 2010 before moving to Darwin in October 2010 to work at the NIDC. The letter of appointment required Mr Iapadre to comply with specified MSS procedures and policies (p1264 of exhibit A5). Plans to develop the Findon Property 54 In 2008, Mr Iapadre obtained development plan consent for the Findon Development. The consent extended to all 7 vacant shops, including the 3 shops that were owned separately to Mr Iapadre. Units 1-3 were owned by the other owner. Mr Iapadre gave evidence that in 2008, he renovated one of the shops, unit 7, which he referred to as the bachelor pad. He also consolidated units 6 and 7 into the one unit. He said that he undertook most of the renovations himself, but it took about 6 months to complete, because he could only work part time due to his carer responsibilities. He said that he obtained the assistance of an electrician because the electrical work had to be signed off by a licensed electrician. He paid the electrician for that work. Mr Iapadre said that the consolidation of the units 6 and 7 was a temporary measure because his then partner and her children were living there, rent free. Later, he planned to separate the two units. 55 Looking at the photographs of this work and considering the account given by Mr Iapadre, I am satisfied that the work was completed to a satisfactory, although relatively basic standard, and that Mr Iapadre was a competent builder and undertook the work detailed above. 56 The development plan consent that Mr Iapadre obtained in 2008, was amended in 2010. The amendment was obtained so that Mr Iapadre could carry out the development in two stages. Stage 1 consisted of the development of units 6 and 7 into a consolidated (one unit) residential accommodation. Stage 2 consisted of the development of units 1-5 as two-storey residential accommodation (see p 2078 of exhibit A8). The Council did not approve the two storey town houses but did approve the second storey consisting of a bedroom in the attic. 57 Mr Iapadre gave evidence that he expected to receive $300 per week for the one-bedroom apartments that he owned (which were units 4 and 5) but expected to receive in excess of $400 per week for the two bedroom town house (units 6 and 7). Mr Iapadre was not a real estate agent, and little weight can be attached to his personal expectations. 58 Stefano Iapadre gave evidence that he would have undertaken labouring and painting work at the Findon Development if Mr Iapadre asked him to assist with the renovations. He said that he did not have any trade qualifications but had previously worked as a labourer for about 10 years. He said that he would not have expected to be paid for that work. 59 The Findon Development is incomplete. Only the stage 1 work, the consolidation of units 6 and 7, has been completed, save that Mr Iapadre said that -- 16 of 127 -- [2026] SADC 86 13 he had intended to undertake further work on the exterior. The work that was completed is to the interior of those units. The exterior remains unaltered. Mr Iapadre said that there were hazards around the property although he did not identify the nature of those hazards. One of Mr Iapadre’s brothers lives in the consolidated unit, rent free. Mr Iapadre said that he does not charge rent because his brother looks after the Findon Property. He agreed that he had not attempted to earn income from the rental of units 6 and 7. 60 Mr Iapadre agreed that as at the end of 2011, he did not have cash reserves to complete the Findon Development. His plan was to continue to work at the NIDC to save the money necessary to undertake the development. Taxable income 61 Mr Iapadre’s taxable income: • for the year ending 30 June 2006, was $14,769; • for the year ending 30 June 2007, was $14,949; • for the year ending 30 June 2010, was $14,231; • for the year ending 30 June 2011, was $35,570 (which included the wages he earned whilst working for MSS at NIDC and some work at Inverbrackie); • for the year ending 30 June 2012, was $34,138 (which included the wages he earned whilst working for MSS at Inverbrackie). Prior fear of storms 62 Mr Iapadre agreed that since he was a child he had a fear of being outside in a storm. He said that it was drummed into him by his parents to be careful of thunderstorms to the extent that he became paranoid about it. He agreed that he had not told MSS about this fear and said that he saw no reason to do so. Other health issues 63 Apart from his PTSD, Mr Iapadre suffers from a number of health issues. Some of these issues pre-dated the Incident. Mr Iapadre suffers from a long- standing history of dysphagia which is the medical term for swallowing and choking problems. There is a dispute as to when those problems arose. Mr Iapadre denies that these problems manifested themselves prior to the Incident. 64 Serco refers to the report of Dr Dep dated 7 April 2017 which records a visit by Mr Iapadre to the gastroenterology clinic on that date (p 2747 of exhibit A9). That report refers to a “very long history of dysphagia, present for at least 20 years ago [sic]. 2 different symptoms one is related to the sensation of being unable to break… Second problem is food sticking.” -- 17 of 127 -- [2026] SADC 86 14 65 In cross-examination, Mr Iapadre did not accept that he had dysphagia prior to the Incident. He said that the 20 years was a misunderstanding and was not a precise figure. In cross-examination, Mr Iapadre admitted that he had swallowing issues before he went to Darwin. 66 A report from a speech pathologist, a Ms Webster, dated 9 August 2019 (p 3190 of exhibit A10), also referred to the dysphagia history of including “a 10- year history of choking on food most days with associated sensation of not being able to breathe… Today reporting frequent sensation of food sticking at the level of the base of tongue and sternal notch: sneezing after choking incident on intake.” The report went on to observe that in a previous report, Mr Iapadre reported sneezing fits after eating and drinking occurring for many decades on a previous speech pathology review in February 2018 but today reported it as a new concern. 67 Mr Iapadre made submissions that downplayed these statements and sought to draw a distinction between admitting that he had a long-standing problem with swallowing lentils and the problems that he had after the Incident. The above statements made to health professionals are specific and go well beyond mere swallowing problems. The fact that these statements were made after the Incident does not affect their weight. 68 Based on these statements, I find that Mr Iapadre had a long-standing history of swallowing and choking difficulties that pre-dated the Incident. There is no evidence of a formal diagnosis of dysphagia. The statements set out in the medical reports are clear 69 In 2018, Mr Iapadre had a spinal fusion for chronic back pain. A report of the operation appears at p 3020 of exhibit A9. In the history taken by Dr Munn for a report dated 27 April 2022 (p 257 of exhibit R58), Mr Iapadre said that he developed the back pain in about 2015 but was unsure of any specific date or incident that caused that pain. He said that he had no ongoing symptoms after the surgery. 70 Mr Iapadre developed issues with his left knee in 2008. He had an arthroscopy on that knee in 2008 and said that the matter then settled (p 259 of exhibit R58). He said that the knee pain was aggravated in about 2010 when he was involved in an incident with an ex-partner of his then girlfriend and subsequently the police. He said that during that incident he aggravated his knees and had worsening knee pain after that. He had an arthroscopy on his right knee in 2010 and said that he made a good recovery. He told Dr Bianca in April 2010 that the arthroscopy on his left medial knee helped but he now had increasing medial pain and increased clicking (p 2471 of exhibit A9). He developed knee pain when he was in Darwin but said that was not a significant concern. 71 It appears that his knee problems flared up from time to time. In February 2016, Mr Iapadre attended on Dr Bianca (p 2380 of exhibit A9) where he reported ongoing pain since the altercation with the ex-boyfriend of his partner in 2009 and -- 18 of 127 -- [2026] SADC 86 15 his right knee flaring, landing him in accident and emergency. In August 2016, he again reported to Dr Bianca that the knee was getting worse because of the incident that occurred with the ex-boyfriend and the police in 2009 (p 2382 of exhibit A9). Mr Iapadre agreed in cross-examination that he was on the waiting list for a possible knee replacement but that he no longer needs that operation. 72 Mr Iapadre had fractured his left lower rib in 2007. 73 Mr Iapadre admitted that he told a Dr Maloney, who he saw on 5 April 2022, that he had shoulder and neck pain (p 3095 of exhibit A10). In cross-examination, Mr Iapadre agreed that he had ongoing issues in his shoulder and neck area. 74 Mr Iapadre suffers from on-going issues with gout. He accepted in cross- examination that he was diagnosed with gout in 2015 but that he is now managing that condition with medication. 75 He was diagnosed with a fatty liver in 2020. Background facts Layout of the NIDC 76 There was no dispute as to the layout of the NIDC. Produced below is a photograph of the NIDC (p 1282 of exhibit A5). 77 The following matters are apparent from the photograph, the evidence of Mr Iapadre and the evidence of the lay Serco witnesses and in particular -- 19 of 127 -- [2026] SADC 86 16 Mr Richards and Ms Williams. Based on the photographs and that evidence, the Court makes the following findings: (1) there are two compounds in which detainees are housed, the northern compound (which is at the top of the reproduced photograph) and the southern compound (which is at the bottom of that page); (2) the external and internal perimeter fences at the NIDC are electrified; (3) the sterile zone is the area between the northern and southern compounds and extends around the whole of those compounds. There is a pathway leading to the sterile zone. The sterile zone is located between two electrified fences which are about 3 metres high. The strands of electrified wires are at the top of this fence. The sterile zone was about 4.5 metres wide; (4) there is a camera post in the sterile zone which is located at the western end of that part of the sterile zone which is located between the northern and southern compounds. It is against that camera post that Mr Iapadre says that he was up against for at least half an hour during the lightning storm that occurred on 14 December 2010. Apart from the camera poles, there was nothing in the sterile zone as at 14 December 2010; (5) outside of the sterile zone (and outside of NIDC) there are a number of static guard posts at which MSS guards are stationed. The guards are stationed under shade tents made of nylon. These guard posts were equally spaced out and a guard would sit under the canopy. General background to the operations of the NIDC 78 Serco called a number of former employees who gave evidence about the operations of the NIDC. This evidence was not in dispute and I accept the evidence set out below. 79 As operations manager at NIDC, Mr Richards oversaw about 20-25 Serco staff. There were about 450-490 detainees being held at the Centre at the relevant time. These detainees came from a number of different cultures. The detainees could walk freely around the compound but could not move from the northern compound to the southern compound. 80 Mr Richards said that NIDC could be quite volatile at times. There were instances of detainees lighting fires and there was destruction of property including the dining areas on a number of occasions. There were protests, including a protest on the roof. On 31 August 2010, about 100 detainees escaped from the centre. There were occasions, at least in other centres, where detainees escaped through the sterile zone. Ms Williams said that often detainees threatened to run away and jump the fence. She said that things could tend to get out of control fairly quickly. -- 20 of 127 -- [2026] SADC 86 17 She said that there were often multiple incidents occurring at the same time, including detainees self-harming. 81 Mr Richards said the Serco employees at the NIDC worked 12 hour shifts. There was a day and a night shift. There was an operations manager and one client services manager on duty for each compound for each shift. The client services managers reported to the operations manager. He said there could be 8 or 9 Serco officers in a compound at the start of a shift but some would be relocated to other compounds because of operational needs. 82 Mr Richards said that the MSS guards had different responsibilities from the Serco officers. He said that he could recall the MSS guards being posted outside of the compounds where they sat under a canopy. He said that he could recall officers being posted in different places for various reasons. 83 Mr Richards agreed that there were storms, including electrical storms, in December of each year, where the weather was clear in the morning and then a build-up of the weather occurred during the day before the storm came in the afternoon. The storms involved lightning and thunder. He said that he would expect Serco officers to seek shelter if they were outside and an electrical storm was approaching. He said that they could go indoors or somewhere else and that there were plenty of places for Serco officers to seek shelter from storms around the compound. He agreed that he would expect MSS officers on the external perimeter to seek shelter in a storm. He said that if someone asked to be relieved or relocated during the course of a shift, then they would contact Control or a client services manager and ask to be relieved. Mr Hayes, although not present at the NIDC in December 2010, said that when he was at the NIDC in 2011, Control did not have authority to release a MSS guard from the sterile zone. He said that he was not aware of any changes to the policy such that Control would have had that authority in December 2010. 84 Ms Williams said that if a guard was stationed at a static post, they could not leave that post until they were relieved or there was no longer a requirement for that post to be manned. She said that they could leave only if they were in imminent danger. 85 The standing orders of MSS confirm this position. Paragraph 1.13 of the MSS Standing Orders (p 1143 of exhibit A5) states that security officers are not to leave their posts or place of duty unless permitted as part of the normal course of business, are properly relieved by another officer, upon instructions or permission of a superior, client or their representative. The officer may leave in emergency or extenuating circumstances. 86 A record of interview of Ms Emily Graham (p 1373 of exhibit A5), which was provided as a result of a workcover claimed made by Mr Iapadre, was admitted into evidence without Ms Graham being called to give evidence. In the period between 2009-2011, Ms Graham was the state operations manager for MSS and -- 21 of 127 -- [2026] SADC 86 18 was based in Darwin. She said that she could recall on one occasion (without specifying the date of that occasion), that there was a storm that was not too far away from the detention centre and that she spoke to the MSS supervisor to make sure that Serco were aware that staff had to leave their posts because it was inappropriate for anyone to be out in such weather conditions. She said that she recalled concerns being raised and that the next time that there was a storm that she made contact with Serco management to ensure that all staff had been pulled from their posts because the conditions were inappropriate and that they were able to leave without affecting the contractual requirements of MSS. She said Serco were in complete agreement. She said that she spoke to the NIDC operations manager, and he assured her that he would relay through to his officers the need for the abandonment of posts under such conditions and it was completely acceptable. Relationship between the Commonwealth, Serco and MSS 87 The nature of the relationship between the Commonwealth, Serco and MSS was primarily contractual and set out in written agreements between the respective parties and is not in dispute. I make the following findings, which are based on documentary evidence, about the nature of the relationship between Serco and MSS and their respective duties. 88 Serco entered into an agreement with the Commonwealth on 29 June 2009 pursuant to which it agreed to manage various detention centres for the Commonwealth, including the NIDC, for a period of 5 years. Pursuant to clause 3.1 of its contract with the Commonwealth (p 33 of exhibit A4), Serco had full responsibility for the management and control of the centres. Serco was granted the licence to occupy and use the facilities (in this instance the NIDC) (clause 24.1). Serco was required to take all reasonable safety precautions to prevent injury or illness or loss arising out of, or in relation to, the provision of services to the Commonwealth. Serco was required to use reasonable endeavours to prevent incidents (as defined) from occurring. Serco was permitted to subcontract parts of its services to third parties (clause 23.1). 89 Serco and MSS entered into an agreement where, in the period between 27 April 2010 and 1 July 2012, MSS agreed to provide guards to work at the detention centres. MSS was required to perform its services in accordance with notified Serco policies or guidelines. One such guideline or policy was the Serco MSS Induction (p 1046 of exhibit A5). That was a document prepared by Serco that provided employees of detention centres with guidelines as to an acceptable standard of professional conduct and behaviour. Staff were required to comply with lawful directions given by their line managers (p 1052) and to give effect to the lawful policies of the detention centre (p 1057). Serco stated that it was committed to the protection of all employees, contractors and visitors from workplace hazards and to identify, monitor and manage safety risks to provide a safe working environment (p 1060). A duty of care was owed to a “neighbour” to -- 22 of 127 -- [2026] SADC 86 19 take reasonable care to avoid acts or omissions that could be reasonably foreseeable to likely injure a neighbour (p 1065). 90 One of the matters referred to in the guidelines was key control. The guidelines stated that the effective control of keys was one of the most essential security elements of any detention centre. Operational keys were issued to Serco client services officers upon the commencement of a shift and were to be used to perform regular daily duties. The Operations Manager was responsible for the storage of keys and recording the issue of keys. 91 The guidelines also stated that significant daily events, including incidents, should be recorded in an occurrence log. 92 The main duties of MSS guards included being stationed at internal perimeter positions and external perimeter positions. It was stated that any guard found abandoning their post without relief would face disciplinary action. 93 The MSS Security Standing Officer Instructions stated that the position occupied by an MSS guard must be continually manned and at no time is the guard to leave the post without first seeking permission from Control. Control will then either allocate a relieving officer or permit the guard to leave the site unattended. Any relieving guard should be allocated within 10 minutes and any guard who leaves the position should return within 10 minutes. It was expressed that the golden rule was not to leave the post until relieved. 94 MSS had also prepared an induction for guards working at the NIDC. MSS guards were required to report all incidents to Control and follow all procedures produced by Serco and MSS. Keys were another topic in the induction guidelines. It was stated that security and proper control of keys was of paramount importance. The issue and return of keys were to be recorded in appropriate registers. Mr Iapadre agreed that if he had been allocated keys, part of his responsibilities were to ensure that those keys were accounted for. However, he said that things did not always go to plan. He said that he was never disciplined for failing to return keys. 95 Mr Iapadre gave evidence that he attended an induction course run by MSS and that the main things that he recalled were that he was not to leave his post unless relieved and that he had to follow any instructions given to him by Serco officers. He said that he could not leave a post without direct permission from a supervisor. He agreed that the permission could be given by a MSS supervisor, if they were on site, or a Serco officer. I accept that evidence which is consistent with the documentary evidence to which I have referred. 96 The Serco lay witnesses also gave evidence about the practical nature of the relationship between Serco and MSS at the NIDC. This evidence was not in dispute, and I accept the evidence detailed below. -- 23 of 127 -- [2026] SADC 86 20 97 Mr Richards gave evidence as to how, in practical terms, an MSS guard should deal with a detainee who was attempting to escape. He said that Serco staff were required to, if it was possible and safe to do so, restrain a detainee if they were attempting to escape. MSS guards were required to do the best they could to slow down the detainee and prevent them from getting over the outer external fence, and to call for back up. 98 Mr Richards said that it was the client services managers of Serco who had direct dealings with MSS guards on a daily basis. The client services managers and the operations manager would be present at the daily briefing at the start of the day at which duties would be allocated. Mr Richards agreed that it was part of his job, as the operations manager, to ensure the safety and security of Serco officers and MSS guards, including their health and safety. He agreed that part of Serco’s policy was not exposing such persons to unreasonable risk of injury. Ms Williams gave similar evidence about the duty of Serco to ensure the health and safety of MSS guards during the course of their work. 99 Mr Hayes, who held a senior position in the Serco hierarchy, agreed that Serco had a responsibility for the health and safety of all people within the detention centres, including MSS guards, and that the Serco policies included directives about the responsibilities. 100 Ms Williams said that MSS guards were obliged to follow any instructions given to them by Serco officers. 101 Ms Williams also gave evidence that if an MSS guard was stationed to a particular post, such as the sterile zone, then MSS’s authority would extend to replacing that person with another MSS guard. Serco had the authority to withdraw a person from a station and say that the post was finished. 102 In keeping with their different duties, Serco officers and MSS guards received different levels of training. The Serco officers were given training to deal with the situations that might arise in a detention centre. MSS guards did not receive that training. Work at the NIDC Mr Iapadre’s general working conditions 103 Mr Iapadre commenced work at the NIDC on 19 October 2010. He worked 12 hour shifts from 6.00am to 6.15pm each day, six days a week. He said that the shifts were equally divided between undertaking guard duties in the compound and outside of the perimeter. He said that Serco paid for his accommodation and travel to and from the NIDC. He ate breakfast and lunch at the NIDC but cooked his own dinner from a meal allowance that formed part of his employment package. 104 The conditions were very hot. He agreed that because of the working conditions associated with the heat and exposure to the sun, he suffered from blisters. -- 24 of 127 -- [2026] SADC 86 21 105 He said that he had a good relationship with his managers, with the exception of Mr Richards, the operations manager of Serco. He said that he felt that he was singled out and victimised by Mr Richards. Mr Iapadre described in a letter written to his then lawyer, Mr Esau, that he and MSS guards were “being treated like filth and scum” whilst working at the NIDC (exhibit R22). He said that the turnover of MSS employees was quite staggering and that no-one was prepared to stay longer than necessary.” 106 Mr Iapadre said that he found the job rewarding although parts of it were challenging, particularly the heat. 107 Ms Williams provided Mr Iapadre with a reference dated 25 January 2011 when he applied for the position as a client services officer at Inverbrackie in 2011 (p 1268 of exhibit A5). Ms Williams does not now have any recollection of providing the reference for Mr Iapadre. The reference was positive and said that Mr Iapadre had excellent communications skills, integrity, maturity and tolerance and was always punctual and reliable. He was rated average for his ability to handle stressful situations, assertiveness and decision making. Ms Williams said that she would reemploy him. The then operations manager, Mr Reki, also made positive comments and said that Mr Iapadre was a good employee who demonstrated a very high work ethic. He also said that he would definitely have him return. 108 Mr Iapadre gave evidence that when working at the NIDC, MSS staff undertook similar responsibilities to Serco officers, except that Serco officers did not patrol the external perimeter. Serco officers spent more time with the detainees, doing paperwork and documenting daily events. He agreed that the duties of MSS guards were directed more to guarding and security. 109 Mr Iapadre said that when on site at the NIDC, he would take directions from Serco officers because that is what he had been told to do by MSS staff. He said that he was told to do that at the induction course that he attended. The MSS supervisor was Mr Paul McAnally. 110 I make the following findings. 111 First, I accept Mr Iapadre’s evidence as to his daily working routine. 112 Secondly, there were aspects of the work that Mr Iapadre found difficult, particularly the heat and the way that MSS guards were treated by Serco management. In Mr Iapadre’s case, that included the way that he was treated by Mr Richards. These findings are based on Mr Iapadre’s letter to Mr Esau and his evidence concerning his relationship with Mr Esau. It follows from these matters that Mr Iapadre may have left the NIDC prior to the planned period of two years. 113 Thirdly, Mr Iapadre’s work performance was satisfactory. That is evident from the reference that was provided by Ms Williams. The reference also contained positive commentary from Mr Reki. -- 25 of 127 -- [2026] SADC 86 22 Allocation of duties at handover meeting 114 Mr Iapadre gave evidence that each morning at the commencement of his shift, there would be a handover meeting at which the tasks for the day would be allocated. At that meeting, keys and radios were also allocated, although if a MSS guard was to patrol the external perimeter of the centre, the keys had to be returned as there was no purpose in having them. He said that if he was allocated an internal post, this would involve walking around and monitoring what was going on inside the fence line. Sometimes he said that a Serco officer would direct him to leave the post, for example to escort a detainee to a medical appointment. On occasions, when stationed at an internal post, he would be directed by Serco officers to undertake a perimeter check of the sterile zone. This would involve two MSS staff walking the entire sterile zone and checking the ground and the fence. This would occur two or three times a day. 115 Mr Iapadre said that there would be about 20-30 persons at the meeting and an equal number of Serco and MSS staff. Mr Iapadre said that the MSS supervisor, Mr McAnally, rarely attended the meetings. A client services manager from Serco would run the meeting. The first topic discussed at the meeting was the events that occurred during the night shift. Following that discussion, duties for the day shift would be allocated. 116 Ms Williams said that both Serco and MSS staff attended the morning briefing. She said that the operations staff of Serco would tell everyone present what tasks were to be undertaken, although the MSS staff used to nominate their own people to the tasks that had been allocated to MSS by the operations manager. 117 Mr Richards said that he did not recall seeing MSS staff at the meeting. That is contrary to the evidence of Mr Iapadre and Ms Williams. I prefer the evidence of Mr Iapadre and Ms Williams on this topic. They had a direct memory of attending the meetings. It makes sense that MSS guards would attend the meeting. I accept the evidence of Mr Iapadre concerning the handover meeting. The only area where he differed from the account of Ms Williams concerned Serco allocating tasks at the meeting to particular MSS officers rather than Serco simply allocating the task to MSS and leaving it to MSS to determine which MSS guard would undertake that task. Mr Iapadre had a direct recollection of that occurring and that the MSS supervisor, Mr McAnally, rarely attended those meetings. I accept that evidence. Allocation of keys and radios 118 Mr Iapadre gave evidence that he was allocated, at the handover meeting, keys and a radio about 80% of the time but there were sometimes shortages of equipment which meant that there were times (the remaining 20%) when he received either a key or a radio. He said that he was not provided with a key when he was to be stationed at one of the external posts. He said that there was sometimes an informal handover of keys with the night shift as otherwise the post would be left unattended when the change of shifts occurred. -- 26 of 127 -- [2026] SADC 86 23 119 Mr Iapadre gave evidence that two-way radios were also issued to Serco and MSS staff. The radio was set to one channel and all staff across the NIDC could hear what was said on the radio. 120 Mr Richards gave evidence that when he commenced working at the NIDC, there was not a system that tracked the allocation and return of keys. He said that he introduced a key watch system whereby the identity of a person who had a key on a particular day was logged. He said that there was also a handwritten key log. However, keys could be removed from a safe and it was not necessary to make an entry on that log. 121 It was Mr Richard’s evidence that contractors did not ever get keys. He said that he was not aware of MSS guards being given keys because they were contractors and are therefore not accountable. He said that if they were a contractor, they should be escorted by a Serco officer who had keys. 122 When cross-examined in relation to the key and radio log for 14 December 2010 (exhibit R23), Mr Richards agreed that this log showed that a contractor, a Mr K Bailee, was provided with a key. The log also showed that Mr Iapadre was given a key. In cross-examination, he also admitted that the key log did not appear to be reliable as there were only a few cases where a key was recorded as being returned. Mr Richards said that he did not recall there being a problem with not having sufficient keys. 123 Mr Hayes said that keys were issued to MSS guards depending on their level of training and where they were working. If MSS guards were issued keys, then they would be subject to Serco direction. 124 Ms Williams said that keys were a controlled item and therefore the only person who should return the key is the person to whom it was provided in the first place. She said that keys should not be swapped or thrown over a fence. She accepted that the key and radio log (exhibit R23) showed that swapping did occur on occasions, even though it was not supposed to happen. 125 She said that MSS staff were provided with keys. She said that a contractor such as Mr Bailee was not given keys. She said that a person such as Mr Bailee should have been under escort although it appears obvious that he had been given a key on this occasion. She said that there were rare occasions, later on, that there were not sufficient keys, but did not believe that there was a shortage of keys as at December 2010. 126 Mr Trigar agreed that keys were a controlled item. He also agreed that keys would be provided to MSS guards if they needed them. He said that a MSS guard could only get a key through Serco staff such as the detention services manager. He said that if a Serco officer obtained a key out of the key press, then they were responsible for that key. He said that he had never seen a MSS guard hand keys to someone else. -- 27 of 127 -- [2026] SADC 86 24 127 Serco admitted in its response to the Notice to Admit Facts that it was responsible for issuing keys to security staff (exhibit A2). 128 I make the following findings. 129 First, MSS guards were provided with keys if they were required. That is the evidence of Mr Iapadre, Ms Williams, Mr Hayes and Mr Trigar. Mr Richards gave contrary evidence. Not only is that evidence contrary to the evidence of the other witnesses, but it is also contrary to the records contained in the key log. I reject the evidence of Mr Richards on that topic. 130 Secondly, although keys were a controlled item, it was not always the case that they were handled in accordance with the relevant policies and procedures. In particular, keys were given to contractors and were swapped between persons who had them in their possession. 131 Thirdly, the key and radio log was often not complete and did not always record who returned the keys and at what time. Duties of Control 132 Ms Williams gave evidence about the functions of Control. She said that the function of Control was to be aware of what was happening in the centre. This involved monitoring the cameras that were throughout the centre, listening to the radio and being able to communicate through the radio with Serco and MSS staff. Control kept a log of ordinary comings and goings and important or unusual events or incidents (exhibit A7). Logs of daily events were also kept by the particular compounds (e.g. North 1). Mr Richards gave evidence to the same effect. 133 Mr Richards gave evidence that Control did not fit into the hierarchy of decision-makers but had an overall picture of what was happening at the centre at any particular time through the cameras. He said that Control can open automated gates including the gates in the sterile zone that lead into the north and south compounds. Ms Williams disagreed with that statement and said that the sterile zone had to be operated by key and Control cannot actually open the gate to the sterile zone. Mr Trigar agreed that the sterile zone could only be accessed by key and that Control could not electronically open or close gates to the sterile zone. 134 Mr Hayes said that the operations of Control were designed to respond quickly to incidents and operational needs. He said that it was not necessary that a guard be provided with a key so that they could leave a locked area to which they had been posted because Control operated the whole centre. When asked whether there were areas where gates couldn’t be operated by Control, Mr Hayes said that he was not across that level of detail. 135 Mr Trigar said Control would be aware of and hear requests that were made by Serco or MSS guards but did not have any say in the level of priority given to those requests. Control did not have authority to change postings or let people out -- 28 of 127 -- [2026] SADC 86 25 of or into areas other than through public access gates. Control could not let someone out of the sterile zone but could organise for someone to do that. Mr Trigar said, for example, that Control could say that there is a person in the sterile zone, the closest officer would then go and let them out. 136 Mr Iapadre agreed that Control was a communications centre and not a decision-making centre. Control would contact someone else if a decision needed to be made. He said that general calls were made to Control unless there was communication with a particular officer. 137 A daily occurrence log is kept by Control of operational matters and any events of significance. The daily occurrence log for 14 December 2010 (exhibit A77) does not show any unusual events except that at 16.53 it shows that a number of cameras were out and that a subcontractor had been contracted to repair them. 138 I make the following findings about the duties and functions of Control. 139 First, Control is a communications and monitoring centre and not a decision- making centre. That is not disputed. Control did not have authority to let someone out of a particular area such as the sterile zone but could arrange for someone else to do so. 140 Secondly, the sterile zone could only be accessed by key and could not be operated by Control automatically. I prefer the evidence of Mr Iapdre, Ms Williams and Mr Trigar on this issue, rather than Mr Richards. I consider that they were more directly involved in the day-to-day operations of the centre and gave clear evidence on this issue. 141 Thirdly, a daily occurrence log is kept by Control of operational matters and any events of significance. There was no entry on 14 December 2010 relevant to the Incident. Sterile zone 142 Mr Iapadre gave evidence that the sterile zone needed to be patrolled in its entirety once or twice a day. It took about half an hour to undertake that patrol. Mr Richards said that there were about 4-5 patrols of the sterile zone each day. There is no need to resolve that difference in the evidence. 143 Mr Richards said that there would either be one or two MSS guards or Serco officers who would undertake that patrol. He said that there was no weather protection or shelter or other structures inside the sterile zone. He said that there were no internal gates within the sterile zone and a guard can walk the entire length of the zone. There were camera posts in the sterile zone. He said that Security & Technology were the contractors who undertook electronic repairs to the electric fences and cameras. He said that they had been authorised to have keys on occasions. -- 29 of 127 -- [2026] SADC 86 26 144 Mr Richards gave evidence that there was no security imperative that required a MSS guard to be posted inside the sterile zone for a lengthy period of time. He agreed that the security imperative in relation to the sterile zone was to patrol it every now and then rather than to have a presence in it. He agreed that it would be very uncomfortable to be in the sterile zone for a 12 hour shift. 145 Mr Richards said that there were multiple reasons for sterile zone checks. These included to check the conductivity of the electric fences (by using a broomstick with a piece of pipe on the end to touch the electric wire and the fence), to make sure that it worked, and to make sure that nothing was thrown into the sterile zone from either outside or inside (as that was how detainees obtained phones and other items). 146 Mr Richards said that a Serco officer could release someone from the sterile zone. Ms Williams agreed with that evidence. Equally, Control could tell a Serco officer in the zone to release someone from the sterile zone. Mr Hayes said that a response to an emergency call over the radio could be actioned in two or three minutes. Mr Hayes said that if someone was to be removed from the sterile zone, that position needs to be maintained, and the person replaced. He said that if this did not occur, the position in the sterile zone would be compromised. He said that if someone was in a position maintaining security, then that position needed to be maintained and that they needed to be replaced before leaving that post. 147 Ms Williams gave evidence that from time to time the MSS guards would patrol the sterile zone. They would walk around the entire sterile zone and check whether the fence was in good condition and create awareness for the detainees of the presence of guards. Ms Williams gave evidence that over a short period, Serco placed guards in the sterile zone. She said that it did not happen every day. She said that Serco placed someone in the sterile zone when it had advance warning that a detainee might try to escape by jumping the fence. The allocation to the sterile zone was made at the morning briefing. She agreed that it was not appropriate to leave someone in the sterile zone for a 12-hour period. She said that if someone was placed in the sterile zone, including an MSS guard, they should be issued with keys. There was no reason for them not to have keys. 148 Mr Iapadre also said from time-to-time MSS guards were placed in the sterile zone (and he was placed there on a number of occasions). He said that they were informed that this placement was to guard against escapes. He said that anyone trying to escape would need to get over a fence into the sterile zone, go through the sterile zone and over the second fence. He agreed that at least one of the things that could be done by a MSS guard was to make a report or intervene to avoid the need for a code (meaning some form of emergency) or prevent an incident from developing. 149 Mr Trigar agreed that he observed MSS guards being posted in a static position in the sterile zone for an entire 12-hour shift. He said that occurred very frequently because that was their role in the sterile zone. He said that he had been -- 30 of 127 -- [2026] SADC 86 27 required to patrol the sterile zone during a lightning storm. He said that the MSS guards had their own supervisor, but it was sometimes the case that the supervisor did not turn up. He said that he also observed Serco staff in the sterile zone for their entire shift. In cross-examination, he said that his may have occurred later than December 2010 at which time shelters had been placed inside the sterile zone. Mr Trigar said he could recall the MSS guards complaining about the conditions in the sterile zone. He said that when he worked in Control, he would receive requests over the radio for the guards to be relieved from their duties in the sterile zone. 150 Mr Trigar said that it was it was not normal for MSS guards who were in the sterile zone to be issued keys. He said that sometimes if a person was in the sterile zone by themselves, they may not be issued a key because they were not authorised to have a key. Mr Trigar accepted that the guard needed a key, but he might be led in and out of the zone by someone who had a key. Although these statements applied to situations after 2010 (when persons were placed in tents in the sterile zone), they do indicate that it is possible that Mr Iapadre might have been placed in the sterile zone without a key. Mr Trigar also gave evidence that MSS guards were consistently trying to get out of the sterile zone and would be on the radio and calling through the fence to try to get out. He said that Control could give an instruction to a Serco officer to open a gate once they had cleared it with the client services manager. 151 I make the following findings about the sterile zone which are not in dispute. 152 First, there was no protection or structure (other than camera posts) in the sterile zone as at 14 December 2010. 153 Secondly, both Serco and MSS guards would undertake patrol duties in the sterile zone. At least on some occasions, MSS guards were placed in the sterile zone for an extended period. Mr Iapadre and Mr Trigar both gave evidence to this effect. The evidence from Ms Williams, which I accept, was that MSS guards should not be placed in the sterile zone for a 12-hour shift. That accorded with the evidence of Mr Richards that there was no security imperative for guards to be in the sterile zone for such a period. 154 Thirdly, at least on some occasions, when placed in the sterile zone, MSS guards were not provided with keys. That accorded with experience of Mr Iapadre and was also the evidence of Mr Trigar. Although Mr Trigar’s evidence related to a time subsequent to 2010, there is no reason that this was not the case as at December 2010. There was no evidence that there had been a change to practice sometime after 2010. According to Ms Williams, the MSS officers should have been issued keys. 155 Fourthly, a Serco officer could release a MSS guard from duties in the sterile zone but their post had to be maintained and if a guard was to be released, they -- 31 of 127 -- [2026] SADC 86 28 must be replaced. Mr Hayes gave evidence to that effect which is consistent with the policies and guidelines of Serco. Previous work by Mr Iapadre in the sterile zone 156 Prior to the Incident, Mr Iapadre gave evidence that he had been allocated to perform guard duties in the sterile zone for an entire shift on three occasions. He said that on each of these occasions, he was placed in the sterile zone without any other guard. He said that on one of the occasions he did not have keys and on another occasion, he had keys but no radio. On each occasion, he was told at the handover meeting, that he would be placed in the sterile zone for two hours but ended up being placed there for his entire shift. 157 He said that on the first occasion, he just stood in that part of the sterile zone between the north and south compounds and did not have to conduct a patrol of the entire zone. On the other occasions, he was required to undertake a patrol. 158 On the third occasion that he was stationed in the sterile zone, Mr Iapadre said that there was a storm. He said that he had keys but not a radio. He was given the keys by a Serco officer. He said that during the storm he let himself out of the zone and went towards the soccer fields in the north compound and found some shelter underneath the sports shed under the verandah. He said that he was later directed by a Serco officer to return to the sterile zone. He said as the storm had passed, he followed that direction. 159 Mr Iapadre gave evidence that he had made complaints about being allocated to work in the sterile zone. He said that he made these complaints to a Serco client services manager, the name of whom he cannot now recall. He agreed that his complaints were in relation to the fact that there was no shelter, and the conditions were not pleasant. That accords with the evidence of Mr Trigar that MSS guards had also made complaints about working in the sterile zone. 160 In cross-examination, it was put to Mr Iapadre that the reason that he had been provided with a radio was because the purpose of being stationed in the sterile zone was to provide an additional level of security if a detainee attempted to escape between the electrified gates. Mr Iapadre denied that this was the case. 161 I accept Mr Iapadre’s evidence regarding his previous experiences in working in the sterile zone. There was nothing in his evidence or cross- examination that provided reason to doubt the credibility or reliability of that evidence. Previous experience of storms at the NIDC 162 Mr Iapadre had, prior to the Incident, previous experience of storms at the NIDC. For his workover claim, he provided a statement to an investigator (p 1400 of exhibit A5) in which he stated that there were frequent electrical storms in which he was exposed to thunder, lightning and rain. He stated that he could recall on one occasion, in about November or December 2010, when lightning struck a security -- 32 of 127 -- [2026] SADC 86 29 camera. At that time, he was patrolling the external perimeter of the centre and can recall being terrified because the storm was directly above and “we were in fear of our lives.” The statement went on to say that he and other officers radioed Control to be relieved because the storm was directly above them, but Control denied their request. 163 This prior storm will be examined in more detail later in these reasons. Lightning storm on 14 December 2010 164 Mr Iapadre did not work on 13 December 2010 or 17 December 2010 (p 1293 of exhibit A5). 165 Darwin and its surrounding areas have the highest prevalence for lightning activity of any major population centre in Australia, and December is one of the worst times for lightning in Darwin, where thunderstorms can be a daily occurrence. 166 The records from the Bureau of Meteorology for Darwin airport (which was the closest site to the NIDC where observations were made) show that there was very heavy rainfall in the afternoon of 14 December 2010 (about 40mm) (pp 1304- 1305 of exhibit A5). The records show that there was no rain on 15 December 2010 (pp 1314-1315 of exhibit A5). There was also only .2mm of rain on 16 December 2010, that rain occurring in the morning (pp 1327-28 of exhibit A5). 167 The TOA lightning incident search shows a series of lightning strikes on the afternoon of 14 December 2010 (pp 1342-1344 of exhibit A5). There were 173 strikes in total on that day. A number of the lightning strikes that occurred around 3.30pm on that date occurred within a 5km radius of the NIDC (p 1354 of exhibit A5). Mr Kirkby gave evidence that it was a severe storm. 168 The daily occurrence log for 14 December 2010 (exhibit A77) records that at 16.53 a number of cameras were not giving a signal. There is a reference to “resolve” and job number 1737658. The records of the contractor show that a technician attended the NIDC at 17.30 in response to that request (p 1358 of exhibit A5). The document headed “fence related activities” prepared by the contractor, Security and Technology (p 1356 of exhibit A5), records that all cameras were knocked out (by a storm) and that a Nigel Smith was the technician. The work order and service reports confirmed that work was done to repair the cameras (pp 1360-1363). 169 The TOA Incident search (p 1339 of exhibit A5) shows that on 13 December 2010 there were a total of 5 lightning strikes, four of which occurred between 5.04pm and 5.11pm. All of these strikes were some distance away. On 15 December 2010, there were a total of 76 lightning strikes. Only about 10 of those occurred during the afternoon between 4.52pm and 6.00pm. Those strikes were all some distance away (p 1352 of exhibit A5). On 16 December 2010, there were no lightning strikes recorded (p 1348 of exhibit A5). -- 33 of 127 -- [2026] SADC 86 30 170 Mr Kirkby’s first report (exhibit A29) provided opinions about the nature of lightning storms, the risks that they pose and the steps that should be taken to minimise that risk. Mr Kirkby referred to AS/NZS 1768 2007 Lightning Protection Standard (the Standard) (exhibit A30) which states at paragraph [3.3.1] that the threat to personal safety is greatest if a person is outdoors when the thunderstorm is local. The 30/30 safety guideline should be used (i.e. an approaching thunderstorm is treated as local when the time interval between the lightning flash and the hearing of thunder is less than 30 seconds). The 30 second interval corresponds to the lightning strike being within 10 km (similarly a 15 second interval corresponds to the lightning strike being within 5 km). Mr Kirkby was of the opinion that more recent advice from the scientific community was that the criterion for taking precautions should be when the thunder could be heard rather than 30 seconds (although that does not matter in the present case given the proximity of the storm). Dr D’Alessandro agreed that in 2010 the 30/30 rule was the basis for defining what is a local and therefore, a dangerous lightning storm. 171 The Standard sets out some of the measures that might be adopted to reduce risk during a local thunderstorm. These measures include seeking shelter in a substantial building. These measures are expressed in the Standard as being guidelines and are not enforceable recommendations. Dr D’Alessandro also confirmed that the Standard is not a mandatory standard but provides guidelines and recommendations only. 172 I accept the submission of Serco that the Standard addresses the risk of physical harm and when, and what, steps ought to be taken to minimise that risk. It does not directly address the risk of mental harm. It is however relevant to assess the foreseeability of the risk that someone who is trapped outside and unable to seek shelter might experience some form of mental distress about the risk or perceived risk of physical harm. 173 Mr Kirkby said that most people who are killed or injured in lightning strikes are outdoors and suffer injuries or death from indirect causes (which arise from the person being in contact with differential voltages) rather than being directly struck by the lightning. He said that lightning was a recognised cause of workplace injury and fatality. 174 Mr Kirkby said that the sterile zone amplifies the risk as the person is outdoors and cannot access safe shelter. The large metallic masts that are present in the sterile zone effectively act as lightning rods and amplify that risk. The proximity to the fence exposes a person to a side flash. Mr Kirkby said that a person is left outside to such dangerous localised conditions should be removed from that exposure to risk. The person so exposed should be permitted to seek shelter. 175 The second report of Mr Kirkby (exhibit 31) provides opinions about the lightning storm that struck Darwin on 14 December 2010. The lightning strikes occurred between 3.12pm and 3.52pm. The amplitude of the lightning strikes was considerable with numerous events exceeding the 50th percentile average. The -- 34 of 127 -- [2026] SADC 86 31 closest strike was just .9km from the NIDC. Mr Kirby said that there were 19 strikes within 10km of the NIDC and 5 strikes within 5km of that facility. He said that some of the strikes were of considerable amplitude and exceeded the 50th percentile average. 176 Dr D’Alessandro provided three reports (exhibits R68, R70 and R71). 177 In his first report (exhibit R68), Dr D’Alessandro analysed, in statistical terms, the likelihood of a person being killed or seriously injured by lightning in Australia. The risk of being killed is one in 2 million (there are about 10 deaths per year in Australia from lightning) and the risk of being seriously injured is one in 200,000 (about 100 people in Australia are seriously injured each year from lightning). The calculations do not differentiate between people who were outside and those who were inside or which States and where the people were located. A more relevant calculation would be the probability of death or serious injury when outside in a local storm because that is where all injuries or deaths would occur, but it is not possible to get that information or make that calculation. 178 However, Dr D’Alessandro did state that “it is well known that people may be injured or killed by lightning, particularly when outdoors in open spaces such as on a golf course or out on a large body of water.” He also accepted in cross- examination that it was common knowledge that a good way to protect yourself from the risk of a lightning strike was to go inside. As Dr D’Alessandro said in his second report, the Standard does not deal with the psychological aspects of lightning storms. 179 Dr D’Alessandro said that the Standard provided that a risk of 1 in 100,000 was generally considered tolerable although public money may be spent on education to avoid the risk. Dr D’Alessandro compared the risk to other common events such as traffic accidents or work accidents and said that the risk of death serious injury by a lightning strike was much lower than either of those events. He said the concept of tolerable risk is used in a number of standards around the world. He accepted in cross-examination that the concept of tolerable risk was directed at those who might have to spend money to mitigate the risk. 180 In his second report, Dr D’Alessandro made the point that it is not possible to make the NIDC without risk from lightning, but that lightning risk can be reduced to low levels but not eliminated. In cross-examination, Dr D’Alessandro said that if lightning was within 15km, he would recommend that persons go indoors. He also agreed that the closer that the storm approached, the risk of being injured by lightning increased. In re-examination, he said that the recommendation to go inside when a storm was within 15km did not take into account circumstances where there may be some form of utility or need to stay outside, provided the risk was not higher than the tolerable risk. 181 Dr D’Alessandro, in his second report, also calculated the risk of a direct strike on the NIDC as one in every 3 years and on the perimeter fence as one in -- 35 of 127 -- [2026] SADC 86 32 every six years. That analysis did not consider an indirect strike which he acknowledged could also be dangerous. 182 I make the following findings. 183 First, there was a lightning storm of considerable magnitude near the NIDC on 14 December 2010 between about 3.12pm and 3.52pm. The existence and extent of the storm is recorded in documentary evidence and confirmed by Mr Kirkby and Dr D’Alessandro. 184 Secondly, the Standard, although not mandatory, suggests that the greatest threat that is posed by a lightning storm to individuals is to a person who is outdoors when the storm is local (i.e. within 10 km). The Standard recommends that persons who are outdoors in such conditions to seek shelter or go indoors. Those findings are clear from the Standard. 185 Thirdly, statistically the probability of getting killed by a lightning storm is very remote (1 in 2 million) and the probability of getting seriously injured is also remote (1 in 200,000). These statistics are derived from the report of Dr D’Alessandro which I accept. These probabilities are very much smaller than what is often referred to in safety standards as a tolerable risk (1 in 100,000). Dr D’Alessandro said these probabilities did not include psychological injury. 186 Fourthly, it is well known (to the public) that lightning storms cause death or injury. That opinion was expressed by Dr D’Alessandro which I accept. 187 Fifthly, the records of lightning activity and the work records of Mr Iapadre suggest that the relevant lightning storm in respect of which he gave evidence occurred on 14 December 2010. Mr Iapadre did not work on 13 December 2010 or 17 December 2010. There was no lightning activity on 16 December 2010. There was some lightning activity on 15 December 2010, but that was only relatively minimal activity (about 10 strikes in total) in the afternoon between 4.52pm and 6.00pm (and more between 6.00pm and 7.55pm) and that the activity up to 6.00pm was some distance away. The activity on 15 December 2010 does not accord with the evidence of Mr Iapadre. 188 Serco criticised Mr Iapadre for only tendering records of lightning strikes for a select group of dates. I do not accept that criticism. The dates selected accorded with the evidence of Mr Iapadre. It was open to Serco to positively assert some other date or provide records of other possible dates when it says that the Incident occurred. The Incident 189 By way of summary, Mr Iapadre claims that the Incident occurred on 14 December 2010. He claims that on that date he was assigned to guard duties in the sterile zone and was not provided with a key. He stayed in the sterile zone through the entirety of his shift, from 6.00am to 6.00pm. He says that he was stuck -- 36 of 127 -- [2026] SADC 86 33 in that zone during the lightning storm and was not released when he contacted Control or Ms Williams. He says that he was in fear of his life during the storm. It is his claim that this experience caused his PTSD, the onset of which was delayed. Did the Incident occur at all 190 The Court’s assessment of Mr Iapadre as a credible and reliable witness is critical to a finding that the Incident occurred. Serco disputes that the Incident occurred at all. 191 Serco refers to four matters which it says provides a basis for the Court to reject the evidence of Mr Iapadre relating to the occurence of the Incident. They are: first, the various inconsistent accounts given by Mr Iapadre as to the date of the Incident; secondly, the unreliable history given by Mr Iapadre to medical practitioners; thirdly, the objective data relating to lightning strikes was unreliable; and; fourthly, alleged implausibilities and inconsistencies in the evidence of Mr Iapadre and prior statements made by him. 192 Therefore, Serco contended that the Court could not be satisfied, to the appropriate standard, that the Incident occurred. Serco referred to the statement in Fox v Percy9 for the proposition that the court should not focus on the demeanour and credibility of the claimant but on contemporaneous documents and objective facts. The statement of principle in Fox v Percy merely emphasises the importance of contemporaneous documents where they are available and does not suggest that findings cannot or should not be made based on the credibility of the claimant. Serco submitted that at the very least the Court should find that Mr Iapadre’s evidence was unreliable, particularly in the absence of any corroborating evidence or material. 193 Serco submitted that the failure of Mr Iapadre to call any other witnesses to corroborate or support his claim, together with the lack of supporting documentary evidence, also casts doubt on the reliability of the evidence given by Mr Iapadre and whether the Incident occurred. As to the failure to call witnesses, the Incident occurred whilst Mr Iapadre was alone. There is no evidence that anyone else witnessed the Incident. It could not be expected that Mr Iapadre would call, as a witness, unidentified persons who may have heard him on the open channel on the radio when the onset of the PTSD was delayed such that it would have been at least a year later before such persons were asked as to what they heard on the radio. Further, on the findings of the Court, it would not have been obvious that Mr Iapadre was experiencing distress. 194 For the same reasons, the lack of documentary evidence, such as the recording of the Incident or any complaint is understandable. 195 In fact, there is documentary evidence relating to the placement of a guard in the sterile zone on 14 December 2010, the presence of a technician at the NIDC at 9 (2003) 214 CLR 118, [31]; [2003] HCA 22. -- 37 of 127 -- [2026] SADC 86 34 the time that Mr Iapadre said that he encountered him, the key log in which there is no record of Mr Iapadre returning the key on 14 December 2010 and the lightning strike that occurred on that date. These matters do not prove that the Incident occurred but are confirmatory of some of the matters upon which Mr Iapadre gave evidence. 196 Addressing first the alleged inconsistent accounts, Mr Iapadre filed a claim in the Work Health Court in the Northern Territory on 1 October 2015. In the particulars of the claim (exhibit R19), he pleads that on or about 20 December 2010, in the course of his employment, he was trapped between two electrified perimeter fences during a lightning storm as a result of which he developed PTSD. In cross examination, Mr Iapadre said that when this document was prepared (i.e. on 1 October 2015), he thought that 20 December 2010 was the date that the Incident had taken place. 197 Mr Iapadre was also referred to the initial statement of claim that was lodged in these proceedings on 13 December 2013 (exhibit R20). That statement of claim referred to the Incident occurring “on or about 15 December 2010”. In cross examination, Mr Iapadre said that he told his lawyers that the Incident occurred on or about 15 December 2010. 198 Mr Iapadre was also referred to the second statement of claim that was lodged in these proceedings on 18 November 2016 (exhibit R21). That document states that the Incident occurred on or about 16 December 2010. In cross-examination, Mr Iapadre said at that time be believed that the Incident occurred on or about 14, 15 or 16 December 2010. He said at this stage that he had forgotten the actual date of the Incident. It was put to Mr Iapadre that it was as a result of his lawyers obtaining the survey report of lightning strikes (p 1342 of exhibit A5) that 14 December 2010 was specified as the date of the Incident. Mr Iapadre agreed that he had not kept track of the date so he needed all the assistance that he could obtain to pinpoint the actual date of the Incident. He agreed that it was from the survey information, that the 14 December 2010 was identified as the date of the Incident. Mr Iapadre had left Darwin on 18 or 19 December 2010. He agreed that there was no information, other than the survey information provided to him by his lawyers, that he used to identify the date of the Incident. He said that he has no recollection of the actual date except that he remembered when it “roughly” was and knew that it was in December 2010. 199 Dr Giardini records that Mr Iapadre stated in a consultation with him on 4 March 2013 (pp 3374-3375 of exhibit A10) that “he cannot remember the day or date of the major Incident, it was probably in December 2010, but that he could work it out if he had the rosters identifying the African guard who was glaring at him from outside the fence…his first name was Moses, and he could then identify the day and time”. 200 I do not consider that the inability of Mr Iapadre to be able to independently recall the exact date of the Incident or the inconsistent dates that had been specified -- 38 of 127 -- [2026] SADC 86 35 in various court and other documents detracts from his credibility or reliability. His inability to recall the actual date at the time that he gave evidence was not surprising given that the Incident occurred about 14 years previously. Further, given that the PTSD did not develop immediately, there was no need for Mr Iapadre to recall the actual date of the Incident. Mr Iapadre was consistent, (with the exception of the reports of Dr Fallo and Ms Anne Williams), that the Incident occurred in December 2010. The fact that, in these circumstances, the survey or the lightning strikes was used to identify the actual date, is entirely reasonable. 201 The reports of Dr Fallo and Ms Williams which refer to a date in October 2010 do not provide a sufficient basis to reject Mr Iapadre’s evidence. Dr Fallo’s report is equivocal. He was not called to give evidence. Mr Iapadre was referred to Dr Fallo for anxiety. The report of Dr Fallo (exhibit A44) refers to a number of anxiety related issues that Mr Iapadre was experiencing, including being given guard duties in unsafe places such as near power generators during a storm in October 2010. It is unclear whether this is a reference to the Incident. At the end of the list of issues, it is recorded that Mr Iapadre left Darwin a few days later. Again, it is not clear whether that is reference to the last of these issues or all of the issues. 202 The report of Ms Williams (exhibit A47) also does not cause me to doubt that the Incident occurred. She refers to the Incident as occurring in October 2020 but goes to include other aspects of the Incident which are consistent with Mr Iapadre’s evidence. These were: (1) being forced to patrol in the sterile zone during an electrical storm; (2) having a conversation with the technician on the day of the storm: (3) being trapped for hours; (4) asking to leave but being refused permission to do so; (5) fearing for his life. 203 Further, the letter of instruction to Ms Williams is unclear. In the first paragraph of that letter (exhibit A47), there is a reference to October 2020, but it is not clear whether that is a reference to the date when he was engaged as a guard at the NIDC or the date when the Incident occurred. Further, later in the letter of instruction, the Incident is described as occurring “towards the end of our client’s two-month stint in Darwin” and Mr Iapadre leaving Darwin and returning to Adelaide shortly after the event. The account is generally consistent with the evidence of Mr Iapadre about the Incident. The evidence relating to the date of October is ambiguous. 204 As to the second matter, Serco made submissions regarding the failure of Mr Iapadre to refer to a prior lightning incident during the course of his -- 39 of 127 -- [2026] SADC 86 36 consultation with Dr Schutz. This incident will be discussed later in these reasons. There is no basis to conclude that Mr Iapadre deliberately misled Dr Schutz about this prior lightning incident or that his omission to refer to that incident detracts from his credibility generally or in relation to the Incident. 205 As to the third matter, being the data in relation to the records of the lightning strikes, I have dealt with that issue earlier in these reasons. That evidence, in my view, is consistent with the evidence given by Mr Iapadre. It does not prove that the Incident occurred but is a piece of evidence that is consistent with its occurrence. 206 As to the fourth matter, being the alleged inconsistencies of the evidence and prior statements of Mr Iapadre when dealing with the key, I will deal with that issue later in these reasons. I do not consider that the evidence relating to the key causes me to doubt the credibility or reliability of Mr Iapadre. 207 Serco also referred to the evidence given by Mr Iapadre about the letter that he wrote to Mr Esau on 10 November 2011 (exhibit R22) and his failure to acknowledge that the purpose of this letter was to ascertain if he had a claim against Serco. The letter recites a litany of complaints against Serco including in relation to working at the NIDC generally, the Incident and a separate dispute in relation to overpayment. The letter concludes “Serco have hurt me considerably and through no fault of my own. I would like to know if they can be held legally accountable for what they have done and more so for my treatment in Darwin.” I accept that this letter is contemplating some form of action against Serco, but I do not consider that it is sufficiently clear such that Mr Iapadre’s denial, some 13 years later, of his intentions to sue Serco in relation to the Incident, can be a reason for the Court to doubt the credibility of his evidence. 208 The matters raised by Serco do not therefore cause me to doubt the credibility or reliability of the evidence that Mr Iapadre gave about the occurrence of the Incident. I am satisfied that the Incident occurred. 209 I will now deal with the details of the Incident. Briefing at the start of the day on 14 December 2010 210 Mr Iapadre gave evidence that on 14 December 2010 he worked on the 6am to 6pm shift. He said that he attended the morning briefing that day at the commencement of his shift. He said that at that meeting he would have been allocated his duties. There would have been a sheet of paper which specified where he was to work on this occasion, although he does not have a direct recollection of that. He said that they were told at the briefing that one of the detainees was going to try to escape and go over the fence. He said that he was allocated to the sterile zone and was required to walk the entire length of the sterile zone three times per hour. -- 40 of 127 -- [2026] SADC 86 37 211 Mr Iapadre said that at the briefing he objected to being placed in the sterile zone but was told that it would only be for 2 hours. 212 In its response to the Notice to Admit Facts, Serco admitted that on or about 14 December 2010, it was decided that an MSS guard was to be placed in the sterile zone of the North Compound of the NIDC in response to threats made by a client. Serco put to Mr Iapadre that there were no written records that named him as being in the sterile zone on that date. That may be the case but equally Serco cannot point to anyone else being placed in the sterile zone on that date or the names of guards being posted in other places. That fact that there was no written record of Mr Iapadre’s placement in the sterile zone on 14 December 2010 does not cause me to doubt his evidence that he was in fact placed there. 213 Ms Williams gave evidence about the briefing sheet for the 14 December 2010 handover meeting (p 1299 of exhibit A5). This document was signed by Ms Williams. She said that it might be that this document was the briefing sheet that she prepared at the end of the day shift and for the night shift. She says that she is not the person who allocates the placement of guards to particular posts. The operations manager decides on the particular postings. The terms of the briefing sheet suggest that the briefing was prepared for the night shift. There is an entry “Client Aryan, DAL 129, in North 2 is allowed to have a visitor. Nightshift, please ensure that this is facilitated as it very important for his wellbeing.” 214 In the section “new items” (which might be items that occurred over the last couple of days), there is an entry that states “GIR032 has told officers that he will be going over the fence soon, he was also shaking hands and telling them goodbye. This client is on High Imminent PSP [psychological support program] and needs to be within arm’s length at all times. MSS guard is to be placed in the sterile zone of North compound.” The reference to arm’s length means that one officer is allocated to that person and that officer needs to be able to see the client at all times. She said that the content of the instructions might be the same for the dayshift as the nightshift. 215 I find that it is likely that the briefing sheet was prepared for the night shift by Ms Williams. It is also likely that the reference to the detainee intending to go over the fence and that a MSS guard should be placed in the sterile zone also applied to the day shift and was part of the briefing for the day shift. Ms Williams said that content of the briefing sheet might have been the same for both the day and night briefings. Given that information, a guard would have been placed in the sterile zone during the course of the day. Further, Serco has admitted that in the Notice to Admit Facts a guard was placed in the sterile zone on 14 December 2010 because of threats made by a client. Still further, Mr Iapadre’s evidence was that he was told of the detainee’s talk of escape at the briefing and was told that he would be placed in the sterile zone at that meeting. It follows that I reject the submissions of Serco that it is speculation to make any finding as to what might have been in the briefing sheet for the day shift. -- 41 of 127 -- [2026] SADC 86 38 216 I also find, based on the briefing sheet and the response to the Notice to Admit Facts, that Serco directed an a MSS guard to be in the sterile zone on 14 December 2010. This guard was Mr Iapadre. From the Notice to Admit and the documentary evidence, it is not in dispute that an MSS guard was placed in the sterile zone on 14 December 2010 because of the risk that a detainee might try to escape. Mr Iapadre gave clear evidence that it was he who was posted to the sterile zone on that day. There was nothing in his cross-examination that caused me to doubt that evidence. There was no evidence that it was anyone else who was posted to the sterile zone on 14 December 2010. Serco referred to the evidence of Mr Trigar that he had never seen anyone posted to that part of the sterile zone that was between the two compounds. That evidence is not inconsistent with Mr Iapadre being posted to the sterile zone and being in the sterile zone between the two compounds during the lighting storm. Presence in the sterile zone on the morning of the storm 217 Mr Iapadre says that he walked to the sterile zone with a female Serco client services officer. He said that he did not believe that he had been given keys but if he had, then he would have handed them to the client services officer at the time that he entered into the sterile zone. 218 He said that he believed that he entered the sterile zone just after 6am. He said that after he had been in the sterile zone for about two hours, he sent a message on his radio to Control and said that he had been required to be in the sterile zone for 2 hours and that time was now up. He said that the response was that there was not enough staff to let him out and that he would have to stay bit longer. Mr Iapadre said that he made a similar request after a further two hours but was met by the response that there was no-one to take his place. He said that he made a further call but was met with a similar response. 219 He said that during the morning, no detainees had attempted to escape and there was nothing to report to Control about any activities of the detainees. 220 In its defence, Serco denies that Mr Iapadre was in the sterile zone on 14 December 2010 and says that if he was, then he was not directed to be there by Serco but was directed to be there by MSS and was under its direction. I do not consider those matters to have been made out for the following reasons. First, I accept Mr Iapadre’s evidence that he was in the sterile zone on that date. He has given clear evidence as to what happened on that day. Secondly, the evidence establishes that Serco directed a MSS guard to patrol the sterile zone on 14 December 2010 because of the risk that it considered was posed by one of the detainees. Serco has admitted that fact. Thirdly, tasks are allocated at the morning briefing by Serco. There is no evidence that there would then be some second meeting between MSS staff when tasks that had been allocated to MSS were then individually allocated to particular MSS guards. Such a meeting was contrary to the evidence of Mr Iapadre. -- 42 of 127 -- [2026] SADC 86 39 Meeting with the technician 221 Mr Iapadre gave evidence that in the early afternoon, he met with a technician who had entered into the sterile zone to do some work. He said that he had a brief conversation with the technician. He said that the technician asked him what he was doing in the sterile zone. Mr Iapadre said that he was patrolling the sterile zone. Mr Iapadre said that the technician replied that in all the years that he had been there, he had never seen anyone stationed inside the sterile zone. The technician further said that there was a storm brewing and that he would be getting out of here and that “you’re [Mr Iapadre] a bloody idiot if you stay.” The technician further said, “These fences are a magnet for lightning strikes” and that he would be doing everything he could to get out. 222 Serco contended that only staff members at the NIDC were allocated keys and that a technician from a contractor would never be permitted to be inside any part of the compound unaccompanied. Serco therefore submitted that Mr Iapadre did not see a technician in the sterile zone. 223 I consider that the documentary evidence supports the presence of the technician and the likelihood that he had an encounter with Mr Iapadre. I accept the submission of Serco that the documentary evidence does not establish, by itself, that the technician, Mr Bailey, was issued with a key so that he could access the sterile zone. 224 The key and radio log for 14 December 2010 (exhibit R23) records that a Mr K Bailey was given a key at 11.50am and returned it at 1pm and was then given a further key at 14.10 which he returned at 16.10. The records of the contractor (p 1360 of exhibit A5) show that Mr Bailey attended the NIDC at 13.30 on 14 December 2010 and finished at 16.00. He replaced panel filters in all compounds and replaced filters (works partially completed). 225 The fact that Mr Bailey was given a key suggests that he was not accompanied by a Serco officer at all times. There would have been no need to provide Mr Bailey with a key if he was to be accompanied by a Serco officer. Clearly, despite policy or guidelines to the contrary, contractors such as Mr Bailey were provided with keys and by inference, permitted to move within the detention centre to conduct their work. Allocation of keys to Mr Iapadre 226 Keys were needed to access or exit the sterile zone. In the part of the sterile zone that is between the north and south compounds, there are gates at the entry to the sterile zone along the diagonal pathway and also at a cross-over between the north compound and the south compound. There are also gates elsewhere along the sterile zone, further away from the part of the sterile zone between the north and south compounds. There is a sally port a little way along from the gate at the end of the diagonal walkway. -- 43 of 127 -- [2026] SADC 86 40 227 The key register (exhibit R23) shows that Mr Iapadre was issued a key at 6.10am but does not record him returning that key. He said in cross-examination that until the existence of the key register was brought to his attention in 2024, he did not recall being issued the key but accepts that he was provided with a key. He said further in cross-examination that he does not have an accurate recollection of how it occurred that he had no keys other than that he surrendered them at some point because he was let into the sterile zone by the client services manager of Serco. 228 Mr Iapadre said in his affidavit (exhibit A11) that to the best of his recollection he was not given keys on 14 December 2010 but if he had been, he would have handed them over at the handover meeting. In examination in chief, he elaborated on this evidence. He gave evidence that he said to the Serco officer he didn’t want to go into the sterile zone but was eventually persuaded to do so. He said that there was a discussion and that he was supposed to hand in his keys, and he cannot recall whether he handed the keys back at that time or when he was walking to the sterile zone with the Serco officer. He can recall the Serco officer saying that she had to make sure that he did not have keys on him, and he said that he didn’t have keys. He said that he was told that he couldn’t have keys so that he wouldn’t let himself out as he did on the previous occasion. He said that he did not have an accurate recollection of how it occurred other than the fact that he surrendered the keys at some point because he was let into the sterile zone. 229 Serco submitted that Mr Iapadre’s evidence about the keys was unsatisfactory and inconsistent and was inherently improbable. Serco submitted that it defied common sense that a client services officer would escort Mr Iapadre to the sterile zone and then let him into that zone without a key. Serco contended that the Court should not accept that Mr Iapadre was not issued with a key and did not have a key with him while he was stationed in the sterile zone. It was put to Mr Iapadre that he had given evidence about three inconsistent alternatives in relation to his position concerning the keys. First, in his affidavit he said that he was not given keys. Secondly, he said that if he had keys, they were either removed from him at the briefing or thirdly, and alternatively, when he walked to the sterile zone with the Serco officer. Serco also referred to the statement that Mr Iapadre provided to Workcover (p 1401 of exhibit A5) and that he made no mention in that statement about having a key removed from him because of the previous occasion when he let himself out of the sterile zone. 230 On 10 November 2011, Mr Iapadre wrote to his then solicitor, Mr Esau, and provided details of the conditions at NIDC and of the Incident. In that letter he referred to the technician and his conversation with him. He also referred to his requests that he made on the radio to be let out. In this letter he said that he did not have any keys nor was he provided with keys. That is clearly incorrect as the key register shows that keys were allocated to him at 6.05am. Mr Iapadre said that the keys were removed from him because of his previous behaviour in letting himself out of the sterile zone when there was a storm. It was put to him that he was not disciplined for that behaviour and that there was never an occasion when he was -- 44 of 127 -- [2026] SADC 86 41 in the sterile zone without being provided with a key. Mr Iapadre rejected that proposition. 231 There is some inconsistency in the three alternative explanations that Mr Iapadre has proffered about the keys but I do not consider that it detracts from Mr Iapadre’s credibility. In his affidavit, he said that he was not given keys in the morning but that he had a recollection of a Serco client services manager saying to a client services officer words to the effect, “make sure that you take his keys.” He also had a recollection of the client services officer who accompanied him to the sterile zone checking with him that he did not have keys. In his Workcover statement, he said that he did not have a key to exit the sterile zone. Mr Iapadre has been consistent in his position that he did not have keys when he was in the sterile zone. He cannot now recall the exact mechanics of how that came about, although he could recall a conversation along the lines of “make sure that he does not have a key.” 232 I accept the substance of Mr Iapadre’s evidence that he did not have a key while in the sterile zone. How that came to be is of lesser importance. Serco further submitted that the key register showed that Mr Iapadre had been issued a key on 14 December 2010 at 6.10am. However, the key register does not show when that key was retuned. 233 Further, there was no operational need for Mr Iapadre to be provided a key. Mr Trigar gave evidence that in 2011, it was not normal for MSS guards who were placed in the sterile zone to be issued with a key. While Mr Trigar’s evidence related to a time that post-dated the Incident, it does provide some support for the view within Serco that the provision of a key to a guard in the sterile zone was not considered to be imperative. Mr Trigar also gave evidence that when MSS guards (in 2011 and after the Incident) were placed in the sterile zone without a key, they were accompanied to that zone by other officers and then let into the zone. This suggests that it is not inherently implausible that a similar procedure would be adopted with Mr Iapadre. Commencement of the storm 234 Mr Iapadre said that it was not until he saw the first flash of lightning and heard the first clap of thunder that he became aware that he was in a lightning storm. The TOA lightning incident search shows that the storm commenced at 3.12pm (p 1354 of exhibit A5). Mr Iapadre was prepared to accept that this was the case, although he said that he did not check his watch and could not otherwise verify the time. Mr Iapadre said the first two strikes, which occurred at 3.12pm and 3.14pm seemed quite a distance away. 235 The lightning records also state that the storm ended at 3.52pm and therefore lasted about 40 minutes. Mr Iapadre accepted this was the case. The records of the lightning storm clearly establish the time of the commencement and end of the lightning storm as 3.12pm and 3.53pm respectively. It may be, as Mr Iapadre said, that the thunder went on longer. -- 45 of 127 -- [2026] SADC 86 42 236 Mr Iapadre gave evidence that the storm was extremely intense. He said that it was black and noisy and that he could see the actual lightning spread across the sky. He said that when the storm was directly overhead, there was lightning and thunder at the same time and there was no delay. 237 I accept Mr Iapadre’s account of the lightning storm. It is broadly consistent with the records relating to the lightning storm, including the evidence about cameras not working as a result of the storm. Requests to the Control room and Ms Williams and fear experienced by Mr Iapadre 238 Mr Iapadre gave evidence that he radioed Control after hearing the first and second cracks of thunder and said that there was a storm brewing and that he wanted to be let out. He accepted that was around 3.12pm (being around the time of the commencement of the storm) but said that he did not observe the time on his watch. He said the response that he received was “Negative, hold your post.” He said that the response came back fairly quickly. He said that he made two further calls to Control (although he said there might have been a further three calls) and told Control that he wanted to be let out. He said that the response by Control continued to be negative and that when Control realised that he (Mr Iapadre) was getting persistent and the tone of his voice was changing, Control said stand by. He said that by this stage the storm was coming towards him quite rapidly and was quite loud and that there was starting to be a lot of lightning. At this stage, Control responded and said that they couldn’t let him out and that he had to maintain his post. 239 Mr Iapadre said that he then contacted Ms Williams and started pleading with her to be let out. He said that he contacted Ms Williams almost immediately following his last communication with Control. He said that when he was talking to Ms Williams, the storm was extremely intense, and the lightning was overhead. He said that the exchange with Ms Williams took at least 10 minutes. He said that he wasted about 15 minutes with Control before they said that they couldn’t let him out. He said he did not, at the commencement of the call, tell Ms Williams that he was fearful of his safety. He said that he would have expected Ms Williams to be able to tell of his distress by the tone of his voice said that he never said to Ms Williams that he felt that he going to die. Ms Williams said stand by, and she eventually got back to Mr Iapadre and said that they couldn’t let him out and that he had to stay. Mr Iapadre then persisted with further calls at least three times and Ms Williams eventually said that “we can only let you out if someone’s prepared to take your place.” Mr Iapadre was very distressed when he gave that evidence. 240 He said that by this stage he had come to terms with the fact that he was going to die and that he was not going to risk someone’s else life to save his own. He said that his distress started when the thunder was getting a bit closer and he could see the lightning and it was getting loud. He said that at the point that he made the first two radio calls to Control he was not expressing or feeling great distress. He -- 46 of 127 -- [2026] SADC 86 43 said that he did not use the word “distress” when talking to Control and did not tell Control that he was fearful of his safety. 241 Mr Iapadre gave evidence that he ended up, during the storm, pushed against the camera post. He said that he was there for more than half an hour. He said that when Ms Williams told him that he could only be let out if someone took his place, he felt that he couldn’t risk someone else’s life to save his own and he just came to terms with the fact that he was going to die. He said that after Ms Williams told him that he could only leave if he was replaced by someone else, he knew that his life was over. He said that he knew sooner or later that he would get struck by the lightning and that is why he pushed his body hard up against the camera post. He said that would be “a clean kill.” He said that, reflecting on what the technician had told him about the electric fence being a magnet for lightning strikes, he felt horrified by the thought that he would be struck in that way between the two fences. Mr Iapadre was again very distressed and tearful when giving this evidence. He said that he remained in this position until the end of his shift. 242 Mr Iapadre said that he spent about half an hour, in total, communicating with Control and Ms Williams. He said that for the remainder of the storm he just waited to be struck by lightning. Mr Iapadre rejected the proposition that Control or Ms Williams would have not registered his distress. He also rejected the proposition that the response by Serco (to offer to replace him with another guard), was not a recognition that he was in danger but simply a response to the number of requests that he had made. 243 Mr Iapadre was cross-examined on the letter that he wrote to his then solicitor, Mr Esau, on 10 November 2011 (exhibit R22). In that letter he refers to communications with Control. Later on in the letter, he refers to pleading on the radio and asking to be let out and the response being that he could only come out if he got someone to replace him. It was put to him that in that latter statement, he was conveying that it was Control that said that he could be let out if someone replaced him, while it was his evidence that he had that later conversation with Ms Williams. In the letter, Mr Iapadre does not state who he had the communications within relation to be being let out. He says that he pleaded over the radio. In those circumstances, I do not consider that an adverse inference can be drawn against Mr Iapadre for any inconsistency between the letter and his testimony in Court. 244 Ms Williams gave evidence that she has no memory of being contacted by Mr Iapadre or being called by someone on the radio to be let out of the sterile zone. She agreed that the decision to let Mr Iapadre out of the sterile zone could have been made within minutes. It would require the Serco operations manager to let Mr Iapadre out if he had been posted there. In cross-examination, she said that she probably had the authority, as a client services manager, to let Mr Iapadre out of the sterile zone while the storm passed but said that as she had not been in that role for very long at that time, she would have checked with the operations manager. She said that she could have contacted the operations manager quickly and that she -- 47 of 127 -- [2026] SADC 86 44 would have expected a quick response. Ms Williams said that Control did not have authority to let a guard leave their post and they would need someone to give that approval. Ms Williams said that her standard response if someone asked to be relieved from a static post, was that they needed to find someone to relieve them. 245 Ms Williams gave an interview to an investigator on 10 January 2023 (p 1436 of exhibit A5). During that interview she said that if she had received a request from Mr Iapadre to leave the sterile zone, where he had been allocated, and it had been raining, she would have said that he could not leave his post unless somebody else came and took his place. She said that you cannot compromise on security. She said that if there was crackling lightning all around the place, that would have been a different thing. She said in the interview that if the lightning was hitting close, she would certainly have to take that into consideration. In cross- examination, she accepted that the lightning records showed that it was lightning rather than just raining. She said that the way that it would have been taken into account was that Mr Iapadre should have been allowed to seek shelter as soon as possible, but she would have still sought clarification from the operations manager. She said that she would have expected the operations manager, properly informed, to have made the same decision. After the Incident 246 Mr Iapadre gave evidence that he remained in the sterile zone until the evening handover meeting. He said that he would have been let out of the zone shortly after that meeting. He said that he felt shell-shocked, bewildered, confused and disorientated. He went straight home after his shift completed. 247 He said that he made the decision to leave Darwin and left Darwin about four days later. He believed that he left Darwin on 18 or 19 December 2010. Mr Iapadre said that, prior to the Incident, he had not planned to return to Adelaide for Christmas or at any time in the foreseeable future. He said that Mr McAnally from MSS tried to convince him to stay but he refused. 248 He said that he complained about the Incident to Mr McAnally. The complaint was oral, and he did not make any written complaint. There was no note of the conversation either from Mr Iapadre or obtained from MSS. Mr Iapadre said that he felt that he would die the next time that there was a storm. Findings about the Incident 249 The Court makes the following findings about the Incident. These findings are primarily based on the Court’s assessment of Mr Iapadre as a credible and reliable witness, although in some respects, other evidence provides some confirmation. 250 First, the Incident occurred on 14 December 2010. Mr Iapadre could not recall the exact date of the Incident. That is not surprising given that his PTSD did not emerge until sometime later. Serco submitted that the Court should find that -- 48 of 127 -- [2026] SADC 86 45 Mr Iapadre had failed to establish that the Incident occurred on 14 December 2010. The issue as to the date on which the Incident occurred has been examined earlier in these reasons in the context of determining whether the incident occurred at all. For the same reasons as previously discussed, the Court finds that the Incident occurred on 14 December 2010. 251 Mr Iapadre has consistently recorded in documents that the Incident occurred in about mid-December 2010. In his claim in the Work Health Court filed in 2015, he stated that the Incident occurred on or about 20 December 2010. That is obviously too late as the unchallenged evidence was that he left Darwin on 18 or 19 December 2010. The initial statement of claim in these proceedings (exhibit R20) pleaded that the Incident occurred on or about 15 December 2010. The second statement of claim (exhibit R21) pleaded that the Incident occurred on or about 16 December 2010. Mr Iapadre has always been clear that the Incident occurred during a lightning storm. The lightning survey record establishes that the only lightning storm around those dates occurred on 14 December 2010. There is also some confirmation of that date by the evidence that Mr Iapadre spoke to a technician on the day of the storm and the documentary records which shows the presence of a technician, Mr K Bailey, at the NIDC on that date and that cameras have been knocked out. 252 Secondly, there was a valid security reason to station a guard in the sterile zone, at least for some time and prior to the lightning storm. The Court is not in a position to assess security decisions that were made by Serco. The documentary evidence established that there was a concern and intelligence that one of the detainees was intending to make an attempt to escape from the Centre. The evidence from Mr Richards and Ms Williams, which I accept, establishes that the stationing of guards in the sterile zone performed at least three functions: first, it enabled a check to be made of the fence to ensure that it was in good working condition; secondly, it ensured that no articles had been thrown into the area; and thirdly, it provided an awareness of the presence of guards for detainees. While these were valid reasons for stationing a guard in the sterile zone, they did not require the presence of the guard for the entire 12-hour shift or during the lightning storm and were capable of being revisited and ought to have been. 253 Thirdly, I accept the evidence of Mr Iapadre that he was placed in the sterile zone for his entire 12-hour shift from 6.00am to 6.00pm on 14 December 2010 without a key. I have already set out why the Court has come to the conclusion that Mr Iapadre did not have a key while stationed in the sterile zone on 14 December 2010 and why I reject Serco’s contentions to the contrary. 254 Fourthly, Mr Iapadre remained in the sterile zone from 6.00am to 6.00pm on 14 December 2010 and throughout the lightning storm. The lightning storm lasted for about 40 minutes from 3.12pm to 3.52pm, as recorded in the lightning survey. Mr Iapadre found the lightning storm to be traumatic and formed the belief that he was going to die. Mr Iapadre gave evidence to this effect, which I accept. He was clearly very emotional when recounting this evidence. This emotion was obviously -- 49 of 127 -- [2026] SADC 86 46 genuine and is consistent with a finding that Mr Iapadre was not lying when he gave his evidence. Of course, that does not mean that his evidence was reliable. 255 Fifthly, I accept that Mr Iapadre had an encounter and conversation with a technician on 14 December 2010. That encounter is not of itself significant except that it provides some background as to why Mr Iapadre found the lightning storm traumatic and developed the fear of dying. The evidence of Mr Iapadre is supported by the key and radio log which showed that a technician, Mr Bailey, was provided with a key on that date. Serco had contended that contractors such as Mr Bailey would not have been permitted to move around the centre unaccompanied. The fact that Mr Bailey was given a key suggests that he was not accompanied by a Serco officer at all times. There would have been no need to provide Mr Bailey with a key if he was to be accompanied by a Serco officer. Clearly, despite the policy of guidelines to the contrary, contractors such as Mr Bailey, were provided with keys and permitted to move around the detention centre to perform their work. 256 Sixthly, Mr Iapadre contacted Control on a number of occasions when the lightning storm struck. Given the fear that I have found that he was experiencing, it accords with common sense that Mr Iapadre would contact Control and ask to be let out of the sterile zone. Mr Iapadre did not use words in these radio communications that conveyed the distress and trauma that he was experiencing. The response given by Control that Mr Iapadre was told that they could not be let out and that he should hold his post also accords with the general lack of authority of Control to grant that permission. Control is likely to have said “hold your post.” The Court is not able to make a finding whether it would have been evident to Control from the tone of his voice, that Mr Iapadre was experiencing distress and trauma at the time of the communications. The communications were made about 14 years prior to Mr Iapadre giving evidence. As he did not develop PTSD immediately, Mr Iapadre had no reason to revisit the communications that he had on 14 December 2010 until at least a year later when his employment at Inverbrackie terminated. Even at that time, it would be very difficult for him to recall the tone of those communications and how they would be perceived by someone receiving those calls on a radio. 257 I accept that there were a number of communications between Mr Iapadre and Control in which Mr Iapadre requested permission to leave the sterile zone. The number of these communications indicated an increasing urgency on the part of Mr Iapadre to be let out of the sterile zone, and that increasing urgency should have therefore been evident to Control. 258 Serco contended that there was no documentary evidence to support Mr Iapadre’s evidence. Control keeps a daily log where, Serco contended, such a request would have been recorded had it been made. The Court is not able to make such a finding. The failure of Mr Iapadre to express the distress and trauma that he was experiencing also has the consequence that it cannot be said that the communication was one that the Court can infer would have been recorded in the daily log. -- 50 of 127 -- [2026] SADC 86 47 259 Seventhly, there were a number of communications between Mr Iapadre and Ms Williams in which Mr Iapadre made further requests to be let out of the sterile zone. I make this finding based on the evidence of Mr Iapadre. Further, this evidence was not directly contradicted by Ms Williams (who could not recall any communications) but the response by Ms Williams that Mr Iapadre could only be let out of the sterile zone if someone was prepared to take his place, was the standard response that she would give to a person who requested to be relieved from a static post. At the time of the request, the storm was intense and there was lightning flashes. The storm had been going for at least 15 minutes by this stage. I accept that these requests were refused and that in relation to the last request, Ms Williams said that Mr Iapadre could only be let out of the sterile zone if someone was prepared to take his place. 260 Again, the Court is not able to make a finding as to whether it would have been evident to Ms Williams from the tone of his voice that Mr Iapadre was experiencing distress and trauma at the time of the communications. Mr Iapadre did not expressly tell Ms Williams that he was experiencing those emotions, and it would be very difficult for him to now be able to recall the tone of those conversations and assess how that tone would have been perceived by Ms Willams. 261 I accept, however, that there were a number of communications between Mr Iapadre and Ms Williams in which Mr Iapadre requested permission to leave the sterile zone. The number of these communications indicated an increasing urgency on the part of Mr Iapadre to leave the sterile zone and that increasing urgency should have therefore been evident to Ms Williams. 262 Eighthly, I accept the evidence of Mr Iapadre that he found the experience of being trapped in the sterile zone during a lightning storm extremely stressful and traumatic and formed the belief that he was going to die. The delayed PTSD that Mr Iapadre developed, and the lack of any other explanation for that PTSD, provides confirmation of the evidence of Mr Iapadre. Mr Iapadre has been consistent in his account of the terror that he experienced during the lightning storm. The more probable interference is therefore that the PTSD arose from the fear of dying that Mr Iapadre experienced during the lightning storm. 263 Serco referred to the statement that Mr Iapadre made to Workcover (p 1407 of exhibit A5) where he referred to being stationed outside of the perimeter of the NIDC when there was a lightning storm during which there was an announcement over the radio that there had been a direct hit (the prior lightning incident). He said that the security officers outside the centre were terrified because the storm was directly above and “we were in fear of our lives.” He said that their request to be let back into the centre to seek safety and shelter was denied. 264 Dr Giardini was cross-examined about this event. He said that he had spent considerable time going over this incident with Mr Iapadre and said that the way that he, Mr Iapadre, described that event and the Incident, led him to the view that there was a more direct link with the Incident and being trapped in the sterile zone. -- 51 of 127 -- [2026] SADC 86 48 Dr Giardini agreed that he had not done the work to rule out the possibility that this prior event could have led to PTSD. Dr Schutz agreed that this prior event needed more examination before any conclusion could be reached about whether it qualified as a necessary pre-condition for the development of PTSD. 265 There was not sufficient evidence before the Court to conclude that the prior lightning incident could have been causal of the PTSD. The evidence that was given by Mr Iapadre clearly recounted the feeling of extreme distress that he experienced during the Incident. There was no evidence that he experienced any such distress in the prior lightning incident. I also accept the submission of senior counsel for Mr Iapadre that there was no evidence that the prior lightning incident gave rise to the other diagnostic criteria set out in DSM-5 (exhibit A33). Those criteria included recurring, involuntary and intrusive and distressing memories of the event. 266 I consider that it is no more than speculation to suggest that this prior lightning incident could have been the event that later triggered Mr Iapadre’s PTSD. 267 Serco has also submitted that the lack of any records is evidence that the Incident did not occur. I do not accept that submission. The failure of Control or Ms Williams to make any record of the communications with Mr Iapadre assumes that Control or Ms Williams considered that the subject of the communication was sufficiently significant that it should be recorded. In circumstances where the Court has found that Mr Iapadre did not refer to his distress expressly, and where it is not possible to find that the tone of his communication was such as to make clear his distress, the failure to make any record of the communication is explainable. The fact that a number of communications were made, both to Control and to Ms Williams, does not alter this finding. 268 Serco submitted that the lack of corroborative witnesses was a further reason why the Court should be cautious about accepting the evidence of Mr Iapadre about the Incident. I do not accept that submission. Mr Iapadre was alone in the sterile zone at the time of the Incident. There was no identified person that he could have called as witness to the event that he says occurred. Mr Iapadre’s return to Adelaide 269 Mr Iapadre gave evidence that he returned to Adelaide on 18 or 19 December 2010. It was only after the Incident that he booked the flight from Darwin to Adelaide. He said that on his return to Adelaide, he was feeling “horrible” and often felt confused and disorientated. He was not sleeping and wished to be left alone. He said that on his return to Adelaide he saw a general practitioner, Dr Cocchiaro, in December 2010. He did not mention the Incident to Dr Cocchiaro. He said that he did not tell Dr Cocchiaro or later Dr Bianca about his mental health as he did not understand what he was suffering from and did not understand that he had a psychiatric injury. He said he did tell the doctors about some blisters that he had and also being potentially exposed to tuberculosis. -- 52 of 127 -- [2026] SADC 86 49 270 Mr Iapadre said that he was not diagnosed with PTSD until 2012. By that time, he had left his employment at Inverbrackie. Some events had occurred at Inverbrackie that caused Mr Iapadre severe anxiety and mood symptoms for which he consulted his general practitioner, Dr Bianca, on 25 November 2011. He was eventually diagnosed with PTSD by Dr Giardini in 2012. Work at Inverbrackie 271 Mr Iapadre commenced working for Serco at Inverbrackie in February 2011 as a casual client service officer. His employment at Inverbrackie was terminated in December 2011. 272 He agreed that he did not disclose any physical or mental conditions when accepting that employment. Mr Iapadre said that he felt very emotional while he was working at Inverbrackie. He agreed that he said in a statement to Workcover that at the time that he was working at Inverbrackie, he felt like a drifter and very depressed. 273 Mr Iapadre gave evidence that he did not react well to any stressful situation when he was working at Inverbrackie. It is clear that there were a number of incidents that occurred during his work at Inverbrackie, which Mr Iapadre found very stressful. These incidents included a minor accident when the back wheel of his van missed the driveway, being transferred from the fulltime roster to a casual roster, receiving a letter saying that he had been overpaid and the general manager at meetings referring to staff being terminated for minor incidents. 274 Mr Iapadre was cross-examined about the incidents described above, as well as some further incidents, and also a statement that he made to a Workcover investigator on 1 August 2012 (p 1422 of exhibit A5). Mr Iapadre said in this statement that: A number of events occurred when I was working for Serco at Inverbrackie which exacerbated a pre-existing anxiety condition I had from working for MSS Security in Darwin. I had a high level of anxiety when I first started working for Serco and it continued. A number of incidents occurred at Inverbrackie which exacerbated or increased my anxiety and resulted in me having to cease work for a period longer than anticipated. 275 Mr Iapadre said in the statement that he felt depressed. In evidence, he said that it was not the work at Inverbrackie that caused that depression and that he enjoyed that work. He said that he had no trust in Serco management and they caused him annoyance and anger. 276 Mr Iapadre gave evidence about an incident that occurred on about 4 December 2012 in relation to a pregnant detainee who was haemorrhaging. Mr Iapadre denied that the incident was a traumatic for him or that it caused him stress and anxiety. He said that he felt infuriated by the way that Serco responded to the emergency. He denied that the current state of his mental health was a cumulative product of the experiences that he had in Darwin and Inverbrackie. -- 53 of 127 -- [2026] SADC 86 50 277 In his letter to Mr Esau dated 10 November 2011 (exhibit R22), Mr Iapadre referred to Serco as a ruthless, callous and militant organisation. In cross- examination, he accepted that he held this view in December 2010 when he left the NIDC. 278 There is no dispute that a number of incidents, as described above, occurred while Mr Iapadre was working at Inverbrackie. However, for the reasons which are set out in the next section, I do not consider any of these incidents were sufficient to cause Mr Iapadre to develop PTSD. Development and diagnosis of PTSD 279 Mr Iapadre was referred by Dr Bianca to Dr Giardini for what was described as “severe anxiety, bullying/traumatic experiences caused by Serco management; working in detention centre, claims that he was singled out and targeted; became withdrawn and homebound.” 280 Prior to working at NIDC, Mr Iapadre did not have any history of psychiatric illness. His medical records suggest that during 2011, Mr Iapadre began presenting with mental health issues. On 25 November 2011, Mr Iapadre had an appointment with Dr Bianca in which he described anxiety type symptoms and referred to an occasion when there was an electrical storm, and he asked to be let out, and they refused (p 2400 of exhibit A9). He had further appointments for work related anxiety disorder on 7 December 2011 and during 2012 (pp 2397-2400 of exhibit A7). Dr Bianca referred Mr Iapadre to a psychologist, Dr Fallo, on 7 December 2011 and in the letter of referral, made reference to work related anxiety disorder and post traumatic features secondary to alleged harassment/bullying that led to traumatic experiences (p 2474 of exhibit A9). 281 Dr Giardini first saw Mr Iapadre on 24 September 2012 and then again on 23 October 2012 (exhibit A32). Dr Giardini found that Mr Iapadre’s principal psychiatric condition was PTSD with associated symptoms. He said that the symptoms and clinical presentation and time course of the symptoms and condition met the diagnostic criteria for the disorder according to the DSM-5 classification system (exhibit A33). That is the basis of an assessment of PTSD. According to DSM-5, the exposure must result from one of the following scenarios: the individual must directly experience the event, witness the traumatic event in person, or learns that the traumatic event occurred to a close family member or close friend or experienced firsthand repeated or extreme exposure to aversive details of the traumatic event. The exposure must cause significant exposure to distress or impairment to the individual’s social interaction, capacity to work, or other areas of functioning. 282 Dr Giardini was of the opinion that the PTSD condition was directly and predominantly caused by the traumatic experience that Mr Iapadre described during his employment at the NIDC (i.e. being stuck in the lightning storm). He said that each time he saw Mr Iapadre, he presented with the distinctive features of PTSD with associated depressive symptoms. He said that mood disorder -- 54 of 127 -- [2026] SADC 86 51 including depression are now considered part of the PTSD, rather than representing some separate disorder requiring an additional diagnosis. 283 Dr Giardini said that PTSD is caused by, amongst other possible triggers, exposure to actual or threatened death, serious injury or sexual violation. Dr Giardini said the triggering event that leads to PTSD is usually an event or experience that is psychologically traumatic in nature involving a fear of imminent death or serious physical harm to oneself or witnessing these such events in others. It is an out of the ordinary everyday experience that may overwhelm the individual’s normal mental processes. 284 The subjective experience, emotional state and conditions or beliefs of the person exposed to the event is crucial. In this regard, the communications that Mr Iapadre had with the technician were a necessary, but not sufficient event, to appraise Mr Iapadre with the belief that the sterile zone was a dangerous place to be in a storm. What is important in diagnosing PTSD is the identification of the initial internal state of fear and trauma. 285 Dr Giardini said that the onset of PTSD can be delayed, and that the sufferer may not always be aware that the initial symptoms they experience represent PTSD. The PTSD may be latent and delayed for weeks, months or years. Dr Giardini said that in the case of Mr Iapadre, it was possible that he had full- blown PTSD but that it was undiagnosed because he had not seen a doctor in relation to his PTSD. 286 Dr Giardini said that if it were not for the Incident in the sterile zone, Mr Iapadre would not have developed PTSD. Dr Giardini is of the view that Mr Iapadre being stuck in the sterile zone with the belief that he would inevitably be killed by a lightning strike due to the attraction of the lightning by the electrified fence, was the major causative factor in the development of the PTSD. Mr Iapadre’s behaviour was consistent with the features of PTSD. 287 Dr Giardini said that it was his impression that Mr Iapadre has a severe case of PTSD and that every time that he is exposed to a reminder of aspects of the original traumatic incidents, it triggers the symptoms of PTSD. He said that he based that partly on how severe his symptoms were when he first saw him and his clinical impression that Mr Iapadre was recounting from his recollection of the Incident. 288 Dr Giardini is of the opinion that Mr Iapadre is totally incapacitated for any type of employment and that he is severely impaired in his ability to socialise or relate to other people, or cope with activities outside of his home. Dr Giardini said that Mr Iapadre was far from being completely recovered. He said that his condition was fairly much wholly attributable to the experience he suffered in the lightning storm at the NIDC. He said that Mr Iapadre had severe, chronic and intractable PTSD. -- 55 of 127 -- [2026] SADC 86 52 289 In his third report, Dr Giardini said that he had attempted Eye Movement Desensitisation and Reprocessing Therapy (EMDR) in the past but had found Mr Iapadre too vulnerable to decompensation and there was the risk of worsening his PTSD symptoms if he continued with this therapy. EMDR therapy attempts to reprocess the memories so that they become more neutral recollection of an old event. 290 Since preparing his first report, Dr Giardini has continued to treat Mr Iapadre. He has seen Mr Iapadre on numerous occasions, usually about every 4-6 weeks. Dr Giardini administered a psychiatric rating scale questionnaire to Mr Iapadre which is a rating scale that reliably provides a score representing the severity of the symptoms caused by the traumatic event. Mr Iapadre’s score was consistent with significant PTSD. 291 In relation to the events at Inverbrackie, it is the opinion of Dr Giardini that Mr Iapadre was already suffering from some of the symptoms of PTSD by the time that he commenced work at Inverbrackie. The events or experiences at Inverbrackie were not traumatic in nature and did not fulfil the first criteria of DSM-5 for a diagnosis of PTSD. There was no serious threat of death or serious injury to himself or witnessing another person suffering from such an event. The event that came closest was the incident involving the pregnant woman, but Mr Iapadre’s reaction was concern about that woman’s welfare and frustration and anger with other staff members. There was no trauma suffered by Mr Iapadre. Dr Giardini said that Mr Iapadre did not give any sense of horror or great fear that was affecting him emotionally when recounting this event. In cross-examination, Dr Giardini said that he went through Mr Iapadre’s experiences at Inverbrackie in detail including the incident with the pregnant woman and found that it never came up in nightmares, flashbacks, or recollections of symptomatology of his trauma. He said that Mr Iapadre was already traumatised and made more vulnerable to stressful events, whether traumatic in nature or not. 292 Dr Giardini accepted that acts of repetition may lead to distortions in the memory of an event, including an event that triggers PTSD. However, he said that it was his impression that Mr Iapadre had a severe case of PTSD and that every time that he is exposed to a reminder of aspects of the Incident, it triggers the symptoms of the PTSD rather than the repeated telling being a further traumatic triggering of new symptoms. He said that view was based partly on how severe his symptoms were at the outset when he first saw Mr Iapadre and formed a diagnosis of PTSD and his impression that the aspects of his story came directly from his recollection of the Incident. 293 Dr Giardini also disagreed that simply patrolling in the sterile zone when he knew that there had been a previous lightning strike on a security camera was sufficient to adduce a belief that he was terrified for his life. He said that he had spent considerable time with Mr Iapadre going over the events and that the way Mr Iapadre described the events in the sterile zone on the day of the Incident resonated with the elements of the trauma and that Dr Giardini considered that -- 56 of 127 -- [2026] SADC 86 53 there was a direct link between being forced to stay trapped throughout the lightning strike and the development of the trauma that triggered the PTSD. 294 Dr Giardini agreed with the proposition that the diagnostic criteria for PTSD set out in DSM-5 TR allowed for the possibility that PTSD can result from a single event and there does not need to be a multiple succession of events. PTSD therefore could arise from a single experience of a lightning strike. Dr Giardini said that it was possible that it was early on in the lightning storm that Mr Iapadre had the reaction of mortal fear and that on the diagnostic criteria, that was sufficient for the development of the PTSD. Dr Giardini said that Mr Iapadre recounted the experience as an act occurring over the whole period. He said that he did not question Mr Iapadre about each moment of the lightning storm. 295 In cross-examination, Dr Giardini was referred to the report of Dr Ewer who found that there were some (and ultimately, he found a mild degree) of symptom magnification aspects of malingering by Mr Iapadre. Nevertheless, Dr Giardini pointed out that Dr Ewer still diagnosed PTSD and a major depressive disorder. 296 Serco arranged for Mr Iapadre to be seen by Dr Schutz, an expert psychiatrist, for the purposes of these proceedings. Dr Schutz met with Mr Iapadre on one occasion on 4 August 2022. In cross-examination, Dr Schutz agreed that the treating psychiatrist had certain advantages in understanding Mr Iapadre’s condition including being able to question him closely and repeatedly over a period of time, having an extensive longitudinal view and integrating other information from external sources. 297 In his report, Dr Schutz (exhibit R90), differed as to the extent of Mr Iapadre’s impairment from PTSD and the extent to which the Incident contributed to that impairment but did not disagree with the fundamental diagnosis of PTSD and it being triggered by the Incident. 298 Dr Schutz expressed the opinion that in reaching a diagnosis such as PTSD, there is usually significant reliance on the history of symptoms provided by the patient. However, further assistance can be gained through observations of the examination of the mental state of the patient. Dr Schutz noted that the mental state examination (by previous doctors) recorded extreme distress, jumpiness, visibly shaking and an inability to tolerate emotions. He said these matters were all suggestive of PTSD. He said that on his mental state examination, Mr Iapadre was tearful and exhibited underlying fragility. There were abnormalities on his mental state examination. These more objective findings were consistent with PTSD. 299 Dr Schutz said that if the Incident had not occurred, Mr Iapadre would not have PTSD. The workplace stressor at Inverbrackie, including the incident involving the pregnant woman, were not of such a magnitude that they would meet the criteria for PTSD. He said that if the lightning incident did not occur at all, it is plausible that Mr Iapadre had an alternate diagnosis, including an adjustment disorder with depressive symptoms and traumatisation. However, that was in the -- 57 of 127 -- [2026] SADC 86 54 realm of conjecture and, given the history that was provided by Mr Iapadre, highly unreliable. 300 In evidence in chief, Dr Schutz said that there was a very large body of evidence that the Incident was a significant factor in the development of the PTSD. 301 Like, Dr Giardini, Dr Schutz said it was the subjective perception of the event that was important. Even if it were determined that the lightning storm did not objectively place his life at risk and that there was little actual risk, his subjective perception may have been different and would meet the criteria for PTSD. 302 Dr Schutz said that based on Mr Iapadre’s account, his condition was sub- syndromal prior to late 2011. His brain fog, tearfulness, snappiness and irritability are not uncommon sub-syndromal symptoms of PTSD. He agreed in cross- examination, that Mr Iapadre may have progressed to full PTSD without any additional stressors. In cross-examination, Dr Schutz agreed that it was also a reasonable possibility that Mr Iapadre had PTSD before he commenced working at Inverbrackie but that it was not diagnosed. 303 As to the extent of the PTSD, Dr Schutz estimated that about 50-60% related to the lightning storm and about 40-50% to the event at Inverbrackie, particularly the incident involving the pregnant woman. Dr Schutz agreed that Mr Iapadre had no work capacity. He had been out of the workforce for 12 years and had significant fragility, agoraphobia and poor concentration. He would be overwhelmed in a workplace. In cross-examination, Dr Schutz accepted that the PTSD had a greater contribution from the events in Darwin. The events at Inverbrackie would not have made out the PTSD but have triggered the evolution of the PTSD. 304 Dr Schutz said that if there were a series of events on the one day, there would still need to be an episode within that series where there was actual or threatened death or serious injury. There may be cases where it cannot be reasonably concluded which of the events lead to the symptomology. He said that it was not implausible that Mr Iapadre could have developed the fear of dying within a few minutes, but it is in the realm of speculation. In cross-examination, Dr Schutz accepted that Mr Iapadre broke down at the point when he was recounting that he would not be let out of the sterile zone unless he found someone else to take his place. Dr Schutz said that it appeared that Mr Iapadre broke down at the same point when he was recounting the event to other medical practitioners. In cross- examination, Dr Schutz said that if there was an increasing sense of helplessness (when he thought that he was going to die), that would have aggravated an existing fear that he might, for example, be seriously injured, but that he would not see it in binary terms where the PTSD was either caused by either the initial fear or the later event. -- 58 of 127 -- [2026] SADC 86 55 Findings about the psychiatric condition of Mr Iapadre 305 The Court makes the following findings about the psychiatric condition of Mr Iapadre and in particular about his PTSD. 306 First, Mr Iapadre’s principal psychiatric condition is a severe case of PTSD with associated symptoms. In making this finding, the Court relies upon the opinion of Dr Giardini. He has been the treating psychiatrist of Mr Iapadre for over 10 years. Both the history provided by Mr Iapadre and the symptoms with which Mr Iapadre presented confirm that conclusion. Dr Schutz was also of the opinion that Mr Iapadre was suffering from PTSD. Although he said that significant reliance in reaching this conclusion is placed on the history provided by Mr Iapadre, he said there were abnormalities on mental examination that were consistent with PTSD. Any alternate diagnosis such as adjustment disorder was at most speculative and highly unreliable. Mr Iapadre had given a consistent account of the Incident over the long period in which he has seen medical practitioners and has consistently exhibited genuine emotion when being required to recount details of the Incident. 307 Serco referred to the statement made by the High Court in Whisprun v Dixon,10 where it was held that the Court was entitled to take the view that the applicant in that case was not suffering from chronic fatigue syndrome and in making that finding was entitled to reject the view of medical experts which were premised on acceptance of the applicant’s account of her history and complaints. The present case is not solely reliant on Mr Iapadre’s evidence to establish PTSD. Abnormalities in mental examination were consistent with PTSD as has been his subsequent behaviour. 308 Secondly, the primary and direct cause of the development of the PTSD was the Incident at the NIDC. It was the subjective belief of Mr Iapadre that he was going to be struck by lightning and was going to die. This was the opinion of Dr Giardini. Dr Schutz also said that the Incident in the sterile zone was a significant factor in the development of PTSD. But for the Incident in the sterile zone, Mr Iapadre would not have developed PTSD. 309 Thirdly, the events at Inverbrackie were not sufficient to trigger PTSD. They did not fulfill that first criteria of DSM-5, namely there was not a serious threat of death or serious injury or of witnessing another person suffering from such an event. Both Dr Giardini and Dr Schutz agreed on this point. 310 Fourthly, the onset of the PTSD was either delayed, or Mr Iapadre was unaware that the symptoms that he was experiencing were in fact PTSD and therefore, the PTSD remained undiagnosed. Dr Giardini expressed this opinion and said that in some cases PTSD may be delayed for years. Dr Schutz agreed that on Mr Iapadre’s account, his condition was sub-syndromal until late 2011. The 10 (2003) 200 ALR 447; [2003] HCA 48, [60]. -- 59 of 127 -- [2026] SADC 86 56 symptoms that Mr Iapadre presented with in 2011 were not uncommon sub- syndromal symptoms of PTSD. 311 Fifthly, as a result of the PTSD, Mr Iapadre is totally incapacitated for any employment and is severely impaired in his daily activities such as his ability to socialise or relate to other people or cope with activities out of his home. I accept Dr Giardini’s opinion on these matters. Dr Schutz agreed that Mr Iapadre had no work capacity. The evidence from Mr Iapadre himself, and supported by his brother, Stefano, and sister-in-law, Teresa, provide evidence of the extent to which Mr Iapadre is impaired in his ability to relate to others and cope with daily activities. 312 Sixthly, the events at Inverbrackie likely triggered the evolution of the PTSD. Dr Giardini said that Mr Iapadre was already traumatised because of the Incident in the sterile zone and was made more vulnerable to stressful events whether traumatic or not. Dr Schutz agreed that the events at Inverbrackie triggered the evolution of the PTSD. Both Dr Giardini and Dr Schutz agreed that it was a possibility that Mr Iapadre had PTSD before he commenced working at Inverbrackie but it was undiagnosed. It is not possible for the Court to make a definitive determination of whether or not that was the case. 313 Seventhly, the Court does not accept that Dr Schutz’s apportionment of the extent of the PTSD as being 50-60% to the lightning storm and 40-50% to the events at Inverbrackie as a correct apportionment. Both Dr Giardini and Dr Schutz agreed that the primary cause of the PTSD was the lightning storm and that it was possible that, irrespective of the events at Inverbrackie, the onset of the PTSD would have occurred, and that Mr Iapadre might have had undiagnosed PTSD before working at Inverbrackie. But for the Incident in the sterile zone, Mr Iapadre would not have developed PTSD. It is in these circumstances not necessary to engage in an apportionment of the cause of the PTSD. The lightning storm was the cause of the PTSD. 314 Eighthly, PTSD may arise from a single event (e.g. such as single lightning strike) or could arise from multiple succession of events (e.g. the prolonged exposure to the lighting storm). Both Dr Giardini and Dr Schutz agreed on this point. Neither Dr Giardini nor Dr Schutz attempted to pinpoint the exact time at which the fear of dying developed. However, it was the evidence of Mr Iapadre that it was when he was told by Ms Williams that he would not be let out of the sterile zone unless he found someone else to take his place, that he broke down. It was at this point when Mr Iapadre was recounting the Incident to medical practitioners, including Dr Schutz, that he broke down. Up to this point, Mr Iapadre had been responding to the situation in which he found himself-i.e. contacting Control and Ms Williams and seeking to be let out of the sterile zone. He was not overwhelmed at this stage. He became overwhelmed and did not engage in further actions to be let out and was resigned to his fate. -- 60 of 127 -- [2026] SADC 86 57 Extent and cause of swallowing and choking difficulties 315 Mr Iapadre described his swallowing and choking difficulties. He said that food is always getting stuck in his throat. He said that happens several times each day. He said that these difficulties first started to occur about six months after he left Inverbrackie and had been getting worse. He said that he had not experienced those difficulties prior to that time except for one instance in his childhood when some lentils got stuck in his throat. 316 In his report dated 4 May 2021 (exhibit A36), Dr Athanasiadis found that Mr Iapadre’s dysphagia (i.e. swallowing and choking difficulties) were most likely related to his PTSD given that they emerged at the same time and there is no physical stricture noted. Dr Athanasiadis observed that Mr Iapadre continued to have these symptoms which he considers to be functional rather than a structural problem. On 20 March 2024, a pharyngeal manometry was performed on Mr Iapadre. This test assesses swallowing function and muscle function in the pharynx. The report of the test that was administered on Mr Iapadre (exhibit A37) indicates that he had slightly reduced pharyngeal muscle strength or tone which is outside normal limits. He has a higher swallowing risk index and a slightly tight upper oesophagus but that is just within normal limits. 317 Dr Athanasiadis explained in evidence that the study showed that there were no physical or structural deficiencies, but that the strength was a little weak. He said that the lack of strength did not explain the swallowing problems of Mr Iapadre. These problems were much more severe than can be explained by the weakness found in the swallowing study. The weakness found in the swallowing study was not related to the PTSD. 318 Dr Athanasiadis said it was possible that Mr Iapadre had a mild swallowing problem prior to the onset of PTSD but it was his expert opinion, based on experience rather than research, that 20% of his symptoms could be attributed to the mild weakness but the remainder could not. He said that he formed the view that the PTSD was the cause of the balance of the swallowing difficulties by a process of elimination in that: (1) the structural weakness was not the cause; (2) the swallowing difficulties manifested themselves following the onset of the PTSD; (3) there was no other physical deficiency or abnormality; (4) his experience in treating patients who have a psychiatric condition, suggests that there may be a psychiatric component. Dr Athanasiadis said that there was no established research linking swallowing difficulties with PTSD although there was a link between PTSD and laryngeal hypersensitivity. -- 61 of 127 -- [2026] SADC 86 58 319 Dr Giardini gave some evidence about the swallowing difficulties suffered by Mr Iapadre. In his report dated 8 October 2021, Dr Giardini said that the tightness in the throat and difficulty swallowing was due to anxiety related to his PTSD. In cross-examination, he agreed that he had not analysed any pre-existing physical symptoms of a swallowing difficulty and agreed that there had been an assumption that there was not an organic or physical cause of the symptom. He agreed that he would defer to an ENT specialist as to whether or not Mr Iapadre’s swallowing difficulties could be explained by his pre-existing physical causes. He agreed that he could not venture an opinion as to whether Mr Iapadre’s problem was physical or PTSD. 320 Dr Raj, the expert called by Serco, placed greater emphasis on the evidence of the swallowing difficulties experienced by Mr Iapadre that pre-dated the Incident. I have referred earlier in these reasons to that evidence. To recap, they comprised: (1) the report of Dr Dep dated 7 April 2017 which records a visit by Mr Iapadre to the gastroenterology clinic on that date (p 2747 of exhibit A9) and refers to a very long history of dysphagia, present for at least 20 years ago; and (2) a report from a speech pathologist, a Ms Webster, dated 9 August 2019 (p 3190 of exhibit A10) which referred to the dysphagia history including a 10 year history of choking on goods most days and including associated sneezing after a choking incident on intake. The report went on to observe that in a previous report, Mr Iapadre reported sneezing fits after eating and drinking occurring for many decades on a previous speech pathology review in February 2018 but today reported it as a new concern. 321 In cross-examination, Dr Raj agreed that he had placed significant weight on these matters. By reference to his notes, Dr Raj said that Mr Iapadre confirmed to him that he had the symptoms prior to the Incident but they became worse two years after the Incident, but in further cross-examination, it appeared that this was a reference to tablets sticking. 322 Dr Raj was of the opinion that the Incident had no direct bearing on Mr Iapadre’s swallowing and choking symptoms because the symptoms, although not severe, were present before the Incident and the onset of the PTSD. It was Dr Raj’s opinion that Mr Iapadre’s condition was a neuromuscular disorder which had progressed like all other neuromuscular diseases, independent of the PTSD. He said that the neuromuscular disorder caused the problem and even if the PTSD is treated, the problem will remain. He said that a functional disorder is only diagnosed when there is no obvious other explanation. Dr Raj said that it was guesswork to apportion how much of the symptoms were due to particular causes and said that was something that cannot be measured. 323 In cross-examination, Dr Raj accepted that people with PTSD can present with increased muscle tension or tightness in their throat. However, he said that where a person has a neuromuscular problem that causes swallowing difficulties, he could not say whether the PTSD would cause an increased problem, because -- 62 of 127 -- [2026] SADC 86 59 that is not something that could be measured. In such an event, his working diagnosis was that the person had a neuromuscular disorder. Findings concerning swallowing and choking difficulties 324 The Court makes the following findings about the swallowing and choking difficulties that are experienced by Mr Iapadre. 325 First, as determined earlier in these reasons, Mr Iapadre has a history of swallowing and choking difficulties that pre-date the Incident. The statements made by Mr Iapadre support the finding of the extent of his swallowing and choking difficulties prior to the Incident. There is no evidence of a formal diagnosis of dysphagia. The history provided by Mr Iapadre to Dr Athanasiadis did not refer to, or understated, those difficulties. It follows that Dr Athanasiadis’ reliance on the history provided to him by Mr Iapadre that the difficulties emerged at the time of the onset of the PTSD is not consistent with that evidence. 326 Secondly, the pharyngeal manometry that was performed on Mr Iapadre indicates that he had slightly reduced pharyngeal muscle strength or tone which is outside normal limits. That weakness does not cause the swallowing or choking difficulties. The results of the pharyngeal manometry evidence the weakness in muscle strength and tone. I accept the opinion of Dr Athanasiadis that this weakness was not sufficiently severe to cause the swallowing problems. 327 Thirdly, it follows from the previous finding, that it is not possible, on the available evidence, to ascertain the cause of the swallowing and choking problems that predated the Incident. 328 Fourthly, the evidence does not suggest progression of a neuromuscular disease. The swallowing study demonstrates that there is no structural deficiency and hence no deficiency that has progressed. 329 Fifthly, the evidence suggests that since the onset of the PTSD, Mr Iapadre’s swallowing and choking problems have worsened. That is Mr Iapadre's evidence which was accepted by Dr Raj. The PTSD has contributed to that deterioration although it is not possible to precisely quantify the extent of that contribution. Dr Athanasiadis said that although there was no scientific study that linked PTSD to swallowing and choking problems, his experience suggested that there could be a psychiatric link. Dr Raj said that patients with PTSD could present with increased muscle tension or tightness in their throat. There was no explanation (the Court having rejected progressive deterioration of a neuromuscular deficiency as a possible cause), other than the onset of the PTSD, as to why that deterioration has occurred. Dr Giardini, although not an expert in this field, also considered there to be a link between Mr Iapadre’s swallowing and choking problems and the anxiety related to his PTSD. -- 63 of 127 -- [2026] SADC 86 60 330 Sixthly, there is no evidence to suggest that the swallowing or choking deficiency have in any way affected Mr Iapadre’s ability to work or engage in other activities. There is no evidence that they have affected his quality of life. Irritable bowel syndrome 331 Mr Iapadre suffers from irritable bowel syndrome. He says that he suffers from diarrhea and that he has the sensation of constantly feeling as though he needs to go to the toilet. He also suffers from constipation at other times. He said that he did not have these symptoms prior to the Incident and that they commenced about 6 months after his employment at Inverbrackie had finished. 332 In relation to the irritable bowel syndrome, Mr Iapadre relied on the report of Dr Jakobovitis dated 15 July 2021 (exhibit A50). Dr Jakobovitis, a gastroenterologist, was not called as a witness but his report was tendered without objection. Dr Jakobovitis was of the opinion that as a result of the Incident Mr Iapadre developed very severe PTSD. He was also of the opinion that as a consequence of that injury, he has developed severe irritable bowel syndrome with various physical symptoms such as a constant need to go to the toilet associated with alternating bouts of constipation and bowel frequency. 333 Serco relied upon two reports of Dr Hunt dated 4 January 2022 and 31 March 2022 (exhibit R57). Dr Hunt, a consultant gastroenterologist and hepatologist, was also not called as a witness but his reports were tendered without objection. Dr Hunt was of the opinion that Mr Iapadre’s irritable bowel syndrome was caused predominantly as a consequence of mental harm (the PTSD). Dr Hunt also said that there were also no signs of irritable bowel syndrome (see p 2 of his report dated 31 March 2022, and p 5 of his report dated 4 January 2022). It is not altogether clear what Dr Hunt meant by this statement. It appears inconsistent with statements that he made in his report dated 31 January 2022 that: (1) Mr Iapadre has typical irritable bowel symptoms with mixed patterns of diarrhea predominance with onset soon after his posttraumatic stress disorder which became evident in 2011-in my opinion, this is exacerbated by his psychological illness; (2) irritable bowel syndrome best describes the digestive symptoms of diarrhea and lower abdominal pain associated with bowel motion; (3) Yes, the irritable bowel syndrome appears to have originated from the Incident given the onset of the symptoms has flared up with the Incident and they are known to be exacerbated by mental distress. 334 Based on the reports of Dr Jakobovitis and Dr Hunt, I find that Mr Iapadre has irritable bowel syndrome, and that condition occurred as a result of his PTSD. -- 64 of 127 -- [2026] SADC 86 61 Mr Iapadre’s health and life after the Incident Daily life and work 335 Mr Iapadre has lived at his mothers’ house at Lockleys since he returned from Darwin. He does not pay any rent. About 12 months after he returned from Darwin, he broke up with his then girlfriend. I accept that they broke up because of Mr Iapadre’s lack of motivation in life. I accept also that he has had little contact with friends and is distant and irritable with his family. He tries to avoid people including his sister-in law, Teresa, when she comes over to care for his mother. He said that he used to be outgoing and sociable. He finds that he suffers from frequent, daily, panic attacks and is very sensitive to noise. 336 Mr Iapadre said that he has difficulty sleeping and gets little sleep. He spends a lot of time pacing each night before attempting to go back to sleep. 337 I have found that Mr Iapadre experiences swallowing and choking difficulties and that although they pre-date the Incident, they have been made worse because of the PTSD. 338 I have also found that Mr Iapadre suffers from irritable bowel syndrome as a result of the PTSD. 339 Mr Iapadre gave evidence that he does not do any cooking. He says that his sister-in-law, Teresa, prepares food for his mother and there is normally some food left over. He said his brother and mother sometimes helps out. Mr Iapadre said that he does not do any cleaning because he has lost motivation. He says that Teresa does the majority of the cleaning of the house. He says that his washing is done by his mother or Teresa. He says that his bedroom “is just an absolute mess.” 340 Apart from his work at Inverbrackie, Mr Iapadre has not worked since the Incident. Following the end of his employment at Inverbrackie, Mr Iapadre received work compensation payments before that claim settled. Mr Iapadre has also lost motivation to perform work around the house and has not completed building work that he started prior to going to Darwin. He agreed that he has not undertaken any manual labour since 2010. 341 On about 19 March 2012, Mr Iapadre lodged a development application in relation to the Findon Development. In December 2012, the Council granted building rules consent and development approval for that development. Mr Iapadre has not done anything to progress those approvals. Mr Iapadre did not have any motivation to proceed with the development. 342 Mr Iapadre continued to experience knee issues after his return from Darwin. There is a note from Dr Bianca dated 2 February 2016 (page 2380 of exhibit A9) which records “recent right knee flare landing him in A & E.” He said that he had no recollection of that event. He said that he now has mild knee pain. He had the back fusion operation in 2017. -- 65 of 127 -- [2026] SADC 86 62 Purchase of property at Henley Beach Road, Lockleys 343 In 2017, Mr Iapadre purchased a unit at Henley Beach Road, Lockleys (the Henley Beach Road Property). The unit was purchased using the proceeds of the workers compensation payments that he received. He paid approximately $238,000 for the property. It was his intention to rent out the property, but he has not done so because he has used the property as a place where he can be alone. He says that he goes there frequently and will often spends hours there by himself. The unit has a mattress but little else including no electricity. He said that in some weeks he will go there almost every day. 344 Mr Iapadre accepted that the value of the Henley Beach Road Property had increased but he had not obtained a formal valuation. He said that he did not know whether the property had increased by a significant margin. A report from the valuer-general was tendered (exhibit R94) which indicated that the value of the Henley Beach Road Property as of 1 January 2023 was $310,000. Workers compensation and other claims 345 Mr Iapadre made a number of claims under the workers compensation legislation in South Australia and the Northern Territory. These claims are admitted in Serco’s’ response to the Notice to Admit (exhibit A2). On 26 April 2012, Mr Iapadre made a claim under the Workers Rehabilitation and Compensation Act 1986 (SA) (now known as the Return to Work Act 2014 (SA) against MSS in relation to acute anxiety and PTSD arising from the Incident. That claim was resolved by consent and on the basis that the injury was not relevantly connected with South Australia. On 7 May 2012, Mr Iapadre made a further claim against Serco under the Workers Rehabilitation and Compensation Act for exacerbation, by the events at Inverbrackie, of the anxiety and depression suffered in the Incident. That claim was settled by payment of medical expenses of $5000 and weekly payments in the period between 7 December 2011 and 7 December 2013. 346 Mr Iapadre made a claim under the Workers Rehabilitation and Compensation Act (NT) (now known as the Return to Work Act (NT)) in relation to his employment at the NIDC. That claim was made against MSS as it was his employer and related to the Incident (exhibit R19). That claim was settled by way of a payment to Mr Iapadre in the sum of $555,000 inclusive of costs and disbursements of $93,927.83. 347 It appears that Mr Iapadre does not dispute that he must repay the payments that he received under the workers compensation payment. He is also under a statutory duty to repay the amounts. If he did not, and received in these proceedings the full amount of damages caused by the Incident, Mr Iapadre would have received more than he would have received without the injury. That would offend the basic principle of compensation that he should not be better off than without -- 66 of 127 -- [2026] SADC 86 63 the injury.11 However, the basic principle of compensation is not offended if the claimant is allowed to receive damages as though no collateral benefit was received, where he is under a duty at law to repay the amount of the collateral benefit. 348 The High Court held in Fox v Wood12 that damages for that portion of the lost earnings which were replaced by compensation should be assessed by having regard to the gross earnings lost, because if the injured party received damages assessed on a net after tax basis, the receipt and repayment of the compensation would have increased the injured party’s loss.13 In Motor Accident Commission v Raccanello (Raccanello),14 Kourakis CJ referred to Fox v Wood and observed that the court there unanimously held that a plaintiff who suffered loss of earning capacity but had received workers compensation payments, which they were bound to repay in gross terms, was entitled to have his or her claim for past loss of earning capacity calculated on the basis of his or her gross wages.15 Livesey P made observations to similar effect16 and held that the receipt of compensation was a natural and foreseeable consequence of the injuries.17 Two further points are relevant to the repayment of the workers compensation payments. First, it is the usual practice not to award pre-judgment interest on the Fox v Wood component of the damages.18 Secondly, the Fox v Wood component of the damages is not discounted for contingencies.19 349 The parties did not make any submissions relating to how the principles outlined above would affect the calculations that have been made for the loss of earning capacity and in particular that gross wages should be used for that portion of the damages claim which represents the receipt of workers compensation payments which were received under the Northern Territory law, and which must be repaid in gross terms. Both parties did not factor into their calculations the fact that the payments would have to be repaid in gross terms. I will hear the parties further as to the exact amount to be repaid and whether the amount of these collateral benefits should be simply ignored when determining the amount of damages, there being an obligation on the part of Mr Iapadre to repay the amounts received by way of workers compensation. 11 H Luntz and S Harder, Assessment of Damages for Personal Injury and Death (LexisNexis Australia, 5th ed, 2011), [9.1.6]. 12 (1981) 148 CLR 438; [1981] HCA 41. 13 Ibid, [5]. 14 [2025] SASCA 146. 15 Ibid, [25]. 16 Ibid, [422]. 17 Ibid, [432]. 18 H Luntz and S Harder, Assessment of Damages for Personal Injury and Death (LexisNexis Australia, 5th ed, 2011), [4.8.3]. 19 Ibid. -- 67 of 127 -- [2026] SADC 86 64 350 Mr Iapadre has made a complaint against the police in relation to the Incident in 2009 as well against the lawyers involved in that complaint. Mr Iapadre has also made a claim against Centrelink in relation to alleged overpayments. 351 Mr Iapadre instituted these proceedings against Serco on 13 December 2013 (exhibit R20). He denied that he had an intention to sue Serco on his return from Darwin. When referred to his letter to Mr Esau, solicitor, dated 1 November 2011 (exhibit R22), in which he requested advice in relation to what action could be taken against Serco, Mr Iapadre was asked what he meant by the statement “When I returned to Adelaide, I did not know whether I wanted to sue Serco or work for them.” He said in cross-examination, that he was not contemplating a claim against Serco in 2010 and that was just the way he was talking in the letter. Duty of care 352 The applicable law in this case is the law of the Northern Territory. The liability of Serco is governed by the common law of negligence. The Personal Injuries (Liability and Damages) Act 2003 (NT) (the Act), unlike the Civil Liability Acts in other States that were introduced as part of the IPP reforms,20 does not codify or modify the common law of negligence in relation to the issues of liability and causation. 353 Mr Iapadre pleaded that Serco owed him a duty of care to take reasonable care for his safety and wellbeing and not to expose him in the course of his employment to unreasonable or unnecessary risks of injury to his physical or mental health, and to comply with all relevant occupational health and safety requirements. 354 Serco did not admit in its Defence-Revision 4 that it owed a duty of care and pleaded that: (1) it was not foreseeable that a person of normal fortitude would sustain a psychiatric injury of any kind, including any diagnosed mental illness, from patrolling in the rain. (2) it was not foreseeable that a person who voluntarily agreed to work as a patrolling security guard in Darwin during the October to December wet season would sustain a psychiatric injury of any kind, including the diagnosed mental illness, as a result of exposure to weather which could ordinarily be expected; (3) it was not put on notice of any extraordinary vulnerability of the applicant as to his exposure to weather which could ordinarily be expected as a guard at the NIDC during October to December. 20 For example the Civil Liability Act 1936 (SA) ss 31-42; Civil Liability Act 2002 (NSW), ss 5-5I. -- 68 of 127 -- [2026] SADC 86 65 355 Serco exercised control over the NIDC and directed MSS and its employees, such as Mr Iapadre, as to the functions that they were to perform and how they were to perform them. On 14 December 2010, Serco directed Mr Iapadre to work in the sterile zone and later directed him to stay in the sterile zone when he asked to be released. On the findings that have been made, it was Serco who ensured that he did not have keys when he was placed in the sterile zone. In these circumstances, there was, subject to questions of foreseeability, sufficient proximity in the relationship between Serco and Mr Iapadre for a duty of care to exist.21 There was nothing in the relationship that was inconsistent with the imposition of a duty of care.22 356 Serco contended that some parts of the claim were not justiciable in that they involved matters of resource deployment and policy and therefore, Serco did not owe a duty of care to Mr Iapadre in respect of such matters. In this regard, Serco referred to the decision to post and maintain a guard in the sterile zone as such a decision. Given my finding that it was not, in any event, a breach of duty to place Mr Iapadre in the sterile zone, it is not necessary to determine this point. Serco accepted that the operational matters such as what was done with particular personnel on particular factual circumstances and how events were responded to, and the reasonableness of those responses, were justiciable. The Court could look at the alleged breach of failing to respond to requests to be let out of the sterile zone or not being provided with a key, both of those matters constitute operational matters. 357 Notwithstanding that the postulated duty arises out of the proximity of the relationship between Mr Iapadre and Serco and that there is nothing in that relationship that is inconsistent with the imposition of a duty of care, there is a requirement, before finding that there is a duty of care, that the Court find that the risk of the applicant sustaining such an injury is reasonably foreseeable. 358 The issue of reasonable foreseeability arises both at the duty stage and the breach stage.23 At the duty stage, reasonable foreseeability involves a more general inquiry, namely whether it is reasonably foreseeable as a possibility that careless conduct of any kind on the part of the respondent may result in damage to the person or property of the applicant.24 359 In Tame v New South Wales (Tame),25 the High Court rejected the view that liability for mental harm should be limited to cases where it was foreseeable that persons of normal fortitude would develop a mental illness as a result of the impugned conduct. Gummow and Kirby JJ held that the central inquiry is whether, in all the circumstances, the risk of the plaintiff sustaining a recognisable 21 Tame v New South Wales (2002) 211 CLR 317 [103]-[108]; [2002] HCA 35. 22 Ibid, [23]-[28], 298. 23 Minister for the Environment v Sharma [2022] FCAFC 35, [417]. 24 Ibid. 25 (2002) 211 CLR 317; [2002] HCA 35. -- 69 of 127 -- [2026] SADC 86 66 psychiatric illness was reasonably foreseeable in the sense that the risk was not far- fetched or fanciful.26 360 In Anwar v Mondello Farms Pty Ltd,27 Stanley J, when discussing the decision in Tame28 held that: Tame held that in deciding whether, for the purposes of the tort of negligence, a defendant owed a plaintiff a duty to take reasonable care to avoid recognisable psychiatric injury, the crucial question is whether, in all the circumstances, the risk of the plaintiff sustaining such an injury was reasonably foreseeable. A majority of the Court in Tame rejected the contention that concepts of “reasonable or ordinary fortitude,” “shocking event” or “directness of connection” were additional preconditions to liability. 361 As the common law applies, the special rules that apply to cases involving mental harm under the Civil Liability Acts (e.g. s 33 of the Civil Liability Act 1936 (SA)) do not apply and it is not necessary for Mr Iapadre to establish that a reasonable person in the respondent’s position would have foreseen that a person of normal fortitude in the applicant’s position, might, in the circumstances of the case, suffer a psychiatric illness. 362 A risk which is not far-fetched or fanciful is real and therefore foreseeable.29 A risk is real and foreseeable (and is not far-fetched or fanciful), even if it is extremely unlikely to occur.30 The test is an objective test, undertaken prospectively from a time prior to the occurrence of the event that caused the injury, by a reasonable person in the position of the respondent.31 363 It is not necessary for the applicant to show that the precise manner in which their injuries were sustained was reasonably foreseeable.32 It is sufficient if it appears that the injury to the class of person was one which might reasonably have been foreseen.33 It is therefore not necessary to show that there was a risk of developing PTSD. It is sufficient if there is a risk of developing mental injury. 364 In Chapman v Hearse,34 the High Court held that it was sufficient that the general nature of the risk must be identifiable and that although the combination of events was unusual, each event was by itself foreseeable. The test of foreseeability is not a stringent test.35 McHugh J in Tame36 referred to the test as 26 Ibid [201]. 27 (2015) 123 SASR 321; [2015] SASCFC 109. 28 (2002) 211 CLR 317; [2002] HCA 35. 29 Wyong Shire Council v Shirt (1980) 146 CLR 40, 48; [1980] HCA 12. 30 Ibid [109] citing Gummow J in Rosenberg v Percival (2001) 205 CLR 434; [2001] HCA 18, [64]. 31 Anwar v Mondello Farms Pty Ltd (2015) 123 SASR 321, [90]; [2015] SASCFC 109. 32 Ibid [108] citing Chapman v Hearse (1961) 106 CLR 112 at 120-121. 33 Ibid. 34 (1961) 106 CLR 112 at 121; [1962] HCA 46. 35 Tapp (above) [109]. 36 (2002) 211 CLR 317, [96]; [2002] HCA 35. -- 70 of 127 -- [2026] SADC 86 67 undemanding and criticised the weakening of the test.37 Hayne J in Romeo38 made a similar statement when he held:39 The fact that an accident has happened and injury has been sustained will often be the most eloquent demonstration that the possibility of its occurrence was not far-fetched or fanciful. Indeed, often it will be difficult, if not impossible to demonstrate the contrary to a tribunal of fact. 365 Serco submitted that the risk of Mr Iapadre sustaining some mental harm was not foreseeable. Serco contended that Mr Iapadre had a particular mental vulnerability arising from his pre-existing paranoia about thunderstorms which meant that, even if he might have sustained the injury, it could not be concluded that the injury was reasonably foreseeable. 366 The submission appears to raise some contributory negligence on the part of Mr Iapadre. There is no plea that the failure of Mr Iapadre to inform Serco of this matter constituted contributory negligence. The submission also appears to invoke the previous test of whether it was foreseeable that a person of normal fortitude would suffer a mental injury. I accept that the foreseeability of the injury is not to be judged by reference to someone who had a pre-existing paranoia about thunderstorms, although the extent of any paranoia on the part of Mr Iapadre of thunderstorms was not the subject of any detailed evidence. 367 Serco referred to the decision in Hegarty v Queensland Ambulance Service40 in support of its contention that the risk of mental harm was not foreseeable. In that case, Keane JA (as he then was) referred to the difficulties in establishing foreseeability in the context of cases of mental harm. Keane JA held:41 It must be said immediately that, while an employer owes the same duty to exercise reasonable care for the mental health of an employee as it owes for the employee's physical well-being, special difficulties may attend the proof of cases of negligent infliction of psychiatric injury. In such cases, the risk of injury may be less apparent than in cases of physical injury. Whether a risk is perceptible at all may in the end depend on the vagaries and ambiguities of human expression and comprehension. Whether a response to a perceived risk is reasonably necessary to ameliorate that risk is also likely to be attended with a greater degree of uncertainty; the taking of steps likely to reduce the risk of injury to mental health may be more debatable in terms of their likely efficacy than the mechanical alteration of the physical environment in which an employee works. 368 This passage (which appears to be directed more at issues relating to breach) suggests that the risk of mental harm may be less apparent than in the case of physical injury (which will be relevant both to questions of duty of care and 37 Ibid [98]. 38 (1998) 192 CLR 431; [1998] HCA 5. 39 Ibid [156]. 40 (2007) Aust Torts Reports 81-919; [2007] QCA 366. 41 Ibid [41]. -- 71 of 127 -- [2026] SADC 86 68 breach) and further that the steps that should be undertaken to address that risk are more debatable (which goes to the question of breach).42 369 I do not consider that the risk of Mr Iapadre suffering from psychiatric harm as a result of being trapped in the sterile zone could be described as far-fetched or fanciful. In the present case, there are a number of factual circumstances which, in combination, lead to a conclusion that the risk was foreseeable and that the possibility of its occurrence could not be described as far-fetched or fanciful. Those facts are: (1) Mr Iapadre was required to work outside when undertaking guard duties, including during electrical storms; (2) he and other guards were required to undertake duties outside for long periods of time and were not permitted to leave the posts where they were stationed unless they were relieved by another guard; (3) the sterile zone consisted of a narrow area between two electrified fences; (4) guards who were placed in the sterile zone had no means of taking shelter or leaving the sterile zone (unless they were provided with a key) or otherwise seeking refuge; (5) there were large metallic masts that are present in the sterile zone which, to a person trapped in the sterile zone, might appear to act as a lightning rod; (6) guards working in the sterile zone might experience a feeling of being trapped in the sterile zone; (7) electrical storms are a frequent occurrence in Darwin throughout the months of September to December of each year and might be of significant intensity. As Mr Kirkby said, Darwin and its surrounding areas have the highest prevalence for lightning activity of any major population centre in Australia and December is one of the worst times for lightning in Darwin, where thunderstorms can be a daily occurrence. (8) lightning was a recognised cause of workplace injury and fatality according to Mr Kirkby; (9) according to Dr D’Alessandro, it is well known that people may be injured or killed by lightning, particularly when outdoors in open spaces such as on a golf course or out on a large body of water; 42 Saadat v Commonwealth [2025] SASCA 114, [2309]. -- 72 of 127 -- [2026] SADC 86 69 (10) someone trapped outdoors in a confined area might, over a period of time in which they were exposed to a risk of lightning, experience an increasing sense of fear or apprehension; (11) given the matters in (1)-(10) above, a person in such a situation might reasonably develop a fear that they were going to suffer serious injury or death from the lightning storm. 370 Serco relied upon the evidence of Dr D’Alessandro as to the statistically very low chance of suffering a fatal injury from a lightning strike and the also very low chance (one in 200,000) of suffering a serious injury. Those statistics do not address the occurrence or risk of mental harm in the factual circumstances described above, including, as Dr D’Alessandro said, it is well known that people may be injured or killed by lightning, particularly when outside. 371 The postulated duty of care, in general terms to take reasonable care to the safety and wellbeing of Mr Iapadre and not to expose him to unreasonable or unnecessary risk of injury to, relevantly, his mental health, is an entirely orthodox and not a controversial application of the duty of care. It accords with the general duty of care in other situations. For example, McHugh J in Crimmins v Stevedoring Industry Finance Committee43 held that the driver of a motor vehicle owed a duty of care to other road users to take reasonable care, not a series of specific duties such as a duty to keep a proper lookout, etc. In the case of the duty of an occupier, the majority in Nagle v Rottnest Island held:44 As occupier under the statutory duty [to manage and Control the public reserve on the Island's coast for the benefit of the public], the Board [of the Authority], by encouraging persons to engage in an activity, came under a duty to take reasonable care to avoid injury to them and the discharge of that duty would naturally require that they be warned of foreseeable risks of injury associated with the activity so encouraged. 372 The existence of the duty of care is a separate matter from whether there has been a breach of the duty of care. The existence of the duty of care is a matter of law whereas the issue of breach is a question of fact. In Leichhardt Municipal Council v Montgomery,45 Gleeson CJ held that the absence of civil juries tends to obscure distinctions between questions of duty (which are questions of law) and questions of breach (which are questions of fact). To formulate a duty in more specific terms invites error because it is likely to mix a question of law (whether the duty existed) with a question of fact (whether the breach occurred).46 373 Some of the matters raised by Serco address the test of whether it was reasonably foreseeable by the respondent that a person of normal fortitude in the 43 (1999) 200 CLR 1 [65]. 44 (1993) 177 CLR 423 at 430 per Mason CJ, Deane, Dawson and Gaudron JJ. 45 (2007) 230 CLR 22 [8]; [2007] HCA 6. 46 McHugh J in Graham Barclay Oysters Pty Ltd v Ryan (2022) 211 CLR 540 [106]; [2002] HCA 54. -- 73 of 127 -- [2026] SADC 86 70 applicant’s position would suffer a psychiatric injury and referred to the particular vulnerability of Mr Iapadre. Breach of duty of care 374 After determining that Serco has a duty to take reasonable care to protect Mr Iapadre from mental injury, the next question is what is required to discharge that duty.47 The question of breach is a factual question and depends of the particular facts and circumstances of the case.48 This question is to be assessed prospectively.49 Serco submitted that the Court should apply the Briginshaw standard in assessing whether Serco had breached it duty of care to Mr Iapadre. I do not accept that submission. Mr Iapadre’s claims relate to failure to take due care and do not require the Court, for example, to find that Serco committed a criminal act or some offence. That is not part of Mr Iapadre’s claim. 375 The characterisation of the risk of harm is critical when assessing the precautions that should be taken to guard against that risk and in assessing standard of care to be observed by Serco. The New South Wales Court of Appeal observed in Ballina Shire Council v Moore50 (Ballina) in relation to s 5B of the Civil Liability Act (NSW) (but equally applicable to the common law) that the risk of harm must be characterised at the appropriate level of generality, with a prospective enquiry. The High Court in Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd51 (Tapp) confirmed the approach that should be taken in determining whether there had been a breach of duty. Gordon, Edelman and Gleeson JJ held that the proper assessment of the alleged breach of duty depends on the correct identification of the risk of injury because only then can an assessment be made of what a reasonable response would be to that risk.52 They went on to say that the risk must be characterised at the appropriate level of generality, a risk that is characterised at an artificially low level of generality, that is with too much specificity, will assist a respondent in denying liability.53 The risk must be assessed from the perspective of a reasonable person in the position of the applicant.54 376 The first question is therefore to identify the risk of harm (from a prospective position) and to characterise that risk at the appropriate level of generality from the perspective of a reasonable person in the applicant’s position. Only once that is done can an assessment be made as to what is a reasonable response to that risk. 47 Vairy v Wyong Shire Council (2005) 223 CLR 422, [20]; [2005] HCA 62. 48 McHugh J in Graham Barclay Oysters Pty Ltd v Ryan (2022) 211 CLR 540 [106]; Vairy (above) at [21]. 49 Ibid [79] per Gummow J; Mulligan v Coffs Harbour City Council (2005) 223 CLR 486; [2005] HCA 63 [21]; Adeels Palace Pty Ltd v Mourbarak (2009) 239 CLR 420; [2009] HCA 48. 50 [2023] NSWCA 155 [13], [22]-[23] citing Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62; Tapp v Australian Bushmen’s Campdraft and Rodeo Association Ltd (2022) 273 CLR 454; [2022] HCA 11. 51 (2022) 273 CLR 454; [2022] HCA 11. 52 Ibid [106]. 53 Ibid [108]. 54 Ibid [113]. -- 74 of 127 -- [2026] SADC 86 71 377 In the present case, the risk of harm facing Mr Iapadre was that while being required by Serco to undertake guard duties in an enclosed area and outside during an electrical storm, where he had no means or ability to seek shelter or refuge, he would become fearful for his safety and would suffer some mental injury. Mr Iapadre contended that the risk of harm to be guarded against was the risk of him being injured while stationed outside near tall metal structures during a lightning storm. I consider that characterisation of the risk is too general. Serco characterised the risk of harm as the risk of mental illness developing from a fear of being struck by lightning. I consider that to be too general as it does not take into account that the risk of harm arose from being stationed outside and being trapped in the sterile zone. 378 Questions of breach are determined at common law according to the criteria set out by Mason J (as he then was) in Wyong Shire Council v Shirt55 (and known as the Shirt calculus or the Shirt evaluation). 379 In Wyong Shire Council v Shirt,56 Mason J held:57 … If the answer be in the affirmative [to the question of foreseeability], it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. 380 The High Court has recognised the continual authority of the Shirt evaluation.58 381 In Clare & Gilbert Valleys Council v Kruse,59 the Full Court held: Section 32 of the Act codifies what is known as the “Shirt calculus” as set out by Mason J in Wyong Shire Council v Shirt. While the sections of the Act mentioned generally reflect the common law, there are some clarifications or differences. Foreseeability of risk has a specific definition, namely, what a person knew or ought to have known. The not “far- fetched or fanciful” test, as proposed in Shirt has been replaced by a test that a risk be “not insignificant”. In Shaw v Thomas, Macfarlan JA with whom Beazley and Tobias JJA agree, when dealing with the identical provision in the Civil Liability Act (NSW) observed: Under the general law relating to the tort of negligence it is well established that it is unnecessary “for the plaintiff to show that the precise manner in which his injuries were sustained was reasonably foreseeable” (See Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 12 at 12-121;(1961) 106 CLR 112 at 120-121; Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 at [64]. Nothing in the Act dictates any different approach when considering the requirement of s 5B(1)(b) that the risk be “not insignificant” 55 (1980) 146 CLR 40 [80]; [1980] HCA 12. 56 Ibid [14]. 57 Ibid pp 47-48. 58 Road and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [68]-[69]. 59 [2019] SASCFC 106. -- 75 of 127 -- [2026] SADC 86 72 (compare Doubleday v Kelly [2005] NSWCA 151 at [11]; Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Tort Reports 81-818 at[42]-[43]). In Wyong Shire Council v Shirt, Mason J referred to a risk “which is not far-fetched or fanciful” as being “real and therefore foreseeable” (at 48)… 382 The inquiry into risk, although performed after the accident, must be assessed prospectively: what would a reasonable person, confronted with a foreseeable risk of injury, have made of that risk.60 Foreseeability 383 I have already addressed the issue of foreseeability in the context of breach of duty. However, the issue of reasonable foreseeability also arises at the breach stage.61 At the breach stage, the focus is whether it is reasonably foreseeable as a possibility that the kind of carelessness of the respondent may result in damage of some kind to the applicant or property of the applicant.62 The Court has found that the risk of Mr Iapadre suffering some form of mental harm was foreseeable. For the reasons that have been previously expressed, the Court finds that it was reasonably foreseeable that Mr Iapdre would suffer mental injury if he was in the sterile zone during the course of a lightning storm without any means of taking shelter or leaving the sterile zone. 384 However, as McHugh J observed in Tame,63 it is not sufficient to establish a breach of duty by reference to only the question of foreseeability and showing that the risk was reasonably preventable. The Court must answer the question: did the respondent’s failure to eliminate the risk show a want of reasonable care for the safety of the applicant and that involves an evaluation or balancing out of other relevant factors. McHugh J held in Tame: Given the undemanding nature of the current foreseeability standard, an affirmative answer to the question whether damage was reasonably foreseeable is usually a near certainty. And a plaintiff usually has little trouble in showing that the risk was reasonably preventable and receiving an affirmative answer to the second question. This is especially so since Lord Reid said that a reasonable person would only neglect a very small risk of injury if there was "some valid reason" for disregarding it, a proposition that effectively puts the onus on the defendant to show why the risk could not have been avoided. Once these two questions are answered favourably to the plaintiff, there is a slide - virtually automatic - into a finding of negligence. Sometimes, courts do not even ask the decisive question in a negligence case: did the defendant's failure to eliminate this risk show a want of reasonable care for the safety of the plaintiff? They overlook that it does not follow that the failure to eliminate a risk that was reasonably foreseeable and preventable is not necessarily negligence. As Mason J pointed out in Shirt in a passage that is too often overlooked: "The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, 60 State of New South Wales v Fahy (2007) 232 CLR 486; [2007] HCA 20 [58]. See Road and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 [65]. 61 Minister for Environment v Sharma [2022] FCAFC 35, [417]. 62 Ibid. 63 (2002) 211 CLR 317, [99]. -- 76 of 127 -- [2026] SADC 86 73 difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position." (emphasis added) Magnitude of risk and probability of its occurrence 385 A relevant matter under the Shirt calculus concerns the magnitude of the risk and the probability of its occurrence. The risk (as characterised) facing Mr Iapadre was significant. Being stuck in a lightning storm with a fear of death or serious injury may lead to a significant mental illness. 386 Notwithstanding a finding that the risk was foreseeable and not insignificant, there was in fact a low probability that the harm would occur, even if precautions were not taken. The evidence given by Dr D’Alessandro, which I accept, suggests that the probability of death or serious injury was extremely low. There was no evidence given as to the probability of developing mental harm as a result of exposure to a lightning storm. It can be found that the probability is low. It would require a similar set of circumstances to those facing Mr Iapadre. First, the person must be outdoors during a lightning storm. Secondly, they must be in a situation where they are prevented from, or not able to take, safety measures such as going inside or sheltering. Thirdly, the storm must be local and significant and likely to continue for a period of time. Fourthly, being trapped in a confined area would enhance the risk. Expense, difficulty and inconvenience of taking alternative action 387 Clearly, the relevant alternative action could be taken very easily with no expense, difficulty or inconvenience. It simply involved letting Mr Iapadre out of the sterile zone upon his request when the lightning storm struck. Ms Williams ultimately accepted that proposition when she agreed that the lightning storm approaching should have been taken into account and that the way it should have been taken into account was that Mr Iapadre should have been allowed to seek shelter as soon as possible. She said that she would have still sought clarification from the operations manager, but properly informed, she presumed that he would come to the same decision. 388 A further alternative action was ensuring that Mr Iapadre was provided with keys when stationed in the sterile zone. The Court has found that it was common practice for MSS guards such as Mr Iapadre to be provided with keys when they were undertaking guard duties inside the compound. If the key had been provided, Mr Iapadre could have let himself out of the sterile zone at any time during the course of the lightning storm. 389 It could be said that the alternative action could have been not placing Mr Iapadre in the sterile zone in the first place. I do not consider that this can be said to be a relevant alternative action. There was no lightning storm at the time -- 77 of 127 -- [2026] SADC 86 74 that Mr Iapadre was allocated to patrol in the sterile zone. Although there was not perhaps a compelling reason for his placement in the sterile zone, I am not prepared to find that there was no operational reason for his placement there. I have referred to the evidence of Mr Richards and Mr Hayes on this topic where they set out the reasons why it might be necessary to have, at least on occasions, a guard posted to the sterile zone. That was also the position of Ms Williams when she gave the following evidence: Q: Do I take it from what you said a moment ago that you didn’t think that it was necessary to have an MSS guard posted in the sterile zone as well as having someone within arm’s length. A: Like, getting over a fence inside an immigration detention centre is a matter of seconds. It’s not long and somebody starts roaming, it could happen, like-I mean, to a certain extent, I obey what I’m told and if I’m told that we’re to out somebody there, that’s what I do. Q: Did you think it was overkill. A: No. Q: No A: No. Q; Did you think it was unnecessary to have an MSS guard there as well as having- A: well, having seen people go over the fence before, no… 390 Mr Iapadre suggested in his evidence that one way in which he could have been let out of the sterile zone was for the Serco officers to have thrown keys over the fence into the sterile zone. That is clearly something that is not in accordance with the policies which required keys to be kept on the person. It is something that could have only been done in an emergency. There is no evidence in this case that there were Serco officers in the vicinity in the northern compound who observed Mr Iapadre’s distress during the lightning storm. Other conflicting responsibilities 391 Security concerns at the NIDC were obviously a relevant matter and must be taken into account when examining the operations of Serco and determining how Serco should have responded to the requests by Mr Iapadre to be let out of the sterile zone. However, security concerns do not negate the existence of a duty of care-i.e. they are not inconsistent with the existence of the duty. The Serco contract with the Commonwealth and the Serco MSS Security Induction Guidelines emphasised the need to provide a safe working environment for all employees. The contract and guidelines do not suggest that these responsibilities are subservient to security needs. Security or operational needs are an important factor to be considered but cannot be used to simply deny a breach in all circumstances. I accept that there was an operational need for a guard to be placed in the sterile zone but that it could not be said that need was compelling or that the guard should -- 78 of 127 -- [2026] SADC 86 75 remain there despite the change in circumstances (i.e. increased risk that a guard experiences by remaining in the sterile zone during a lightning storm). That is, the need for a guard to be placed in the sterile zone does not provide justification for the refusal to let Mr Iapadre to leave the sterile zone when the lightning storm struck. Evaluation of breach of duty of care 392 In determining whether Serco has breached its duty of care to Mr Iapadre, it is necessary to consider the matters that have been identified as forming part of the Shirt calculus (or as the High Court now prefers to call it, the Shirt evaluation) in the context of the specific pleaded breaches. Mr Iapadre has broadly contended that Serco breached its duty of care: (1) by failing to provide a safe system of work by requiring him to work in the sterile zone, including during the lightning storm; (2) by requiring him to continue to work in the sterile zone during the course of a lightning storm without any means, such as having a key, to let himself out of the area; (3) by refusing his requests to be let out of the sterile zone during the course of a lightning storm. 393 The Court should take into account the knowledge that Serco had or ought to have had regarding the possibility of lightning strikes causing harm to those working at the NIDC or the detainees. In this regard, first, Serco knew, as Mr Richards said in his evidence, that there could be electrical storms in December of each year where the weather was clear in the morning and would build up during the course of the day, with the storm coming in the afternoon. 394 Secondly, Serco knew or ought to have known from at least early in the morning of 14 December 2010 that there was a risk that there would be a storm in the afternoon. There are three reasons for that conclusion. There had been storm activity in the early morning (around 12am). Further, the details concerning Darwins’ climate and the likelihood of storms were well known. Still further, the technician had commented to Mr Iapadre that it was likely that a storm was brewing. While there was no evidence that he had communicated that view to Serco, it could be reasonably inferred that others would have made the same observation. 395 Thirdly, Serco ought to have known that it was a commonly held view of members of the public (irrespective of the correctness of that view) that a person may be injured or killed if outdoors during a lightning storm. Dr D’Alessandro supports that position when he stated in his report that it was “well known that people may be injured or killed by lightning, particularly when outdoors in open spaces such as on a golf course or out on a large body of water” and when he said -- 79 of 127 -- [2026] SADC 86 76 in cross-examination that it “was common knowledge that a good way to protect yourself from the risk of a lightning strike was to go inside.” 396 Fourthly, Serco knew that the sterile zone was a confined zone between electrified fences and that person within that zone was and would feel trapped if they had no means of leaving the zone. 397 Fifthly, Serco knew that there was nowhere in the sterile zone to seek shelter. 398 I do not consider that, taking into consideration the Shirt calculus discussed above, merely stationing a guard in the sterile zone during a lightning storm is a breach of the duty. The risk of serious physical injury or death was low. There were valid reasons for the posting of a guard in the sterile zone, particularly where there was some concern that a particular detainee was intending to escape. That reason remained relevant when the storm struck. 399 The question of breach must consider the risk of suffering mental harm from being in the sterile zone, and not being able to leave the sterile zone or being refused a request to leave the sterile zone against the operational requirements that might require him to stay there. That requires a balancing exercise to be undertaken by Serco. It is not sufficient for Serco to merely take the absolute position that the guard must remain in the sterile zone despite the risk and the circumstances of the particular guard who had been placed there. Serco should be in a position where it can perform that evaluation in a quick manner. 400 The second and third broad contentions of Mr Iapadre as to how the breach of the duty of care has occurred are two alternate ways in which the potential harm could be avoided (i.e. by being released from the sterile zone or releasing himself). If one of these methods was provided, then the absence of the other is no longer significant. The two alleged breaches can be considered as one breach: that is, Serco breached the duty of care it owed to Mr Iapadre by requiring him to work in the sterile zone during the course of a lightning storm without providing him with a key or some other means to leave the sterile zone, or by refusing his requests to leave the zone. 401 This formulation should then be evaluated according to the Shirt calculus. I have already found that it is foreseeable that a guard who is stuck in the sterile zone during the course of a lightning storm, without any ability to leave that zone, may suffer some mental injury. Providing Mr Iapadre with the means to leave the sterile zone (either by him having a key or by releasing him) could be accomplished easily and without any cost or inconvenience. These are all matters that favour a conclusion that there had been a breach of its duty of care that Serco owed to Mr Iapadre by not permitting or enabling him (through the provision of a key) to leave the sterile zone. 402 Serco contends that balanced against these factors were the low probability of harm occurring and that there were security reasons that required a guard to be -- 80 of 127 -- [2026] SADC 86 77 placed in the sterile zone. I have already addressed the issue of the low probability and accept that there was a low probability of mental harm occurring. As to the security needs, although a relevant factor, it is not an answer in and of itself to say that it was the policy of Serco, or that security needs dictated that a guard could not leave their post without someone taking their place. That proposition cannot be absolute and must yield to safety and well-being concerns of the guards, particularly in circumstances where it cannot be said that there was a compelling reason for the presence of a guard in the sterile zone. Mr Richards gave evidence that the security imperative of placing a guard in the sterile zone was to patrol the zone every now and then rather than have a presence in the zone. It was not imperative that a guard be posted in the sterile zone for a lengthy period of time. That is, the policy and response must take into account the particular circumstances that exist relating to the situation facing the particular guard. 403 In the present case, the standing orders state that that a person must not leave their post unless permitted or relieved save that they may leave in emergency or extenuating circumstances. Mr Iapadre was facing an emergency or extenuating circumstances (i.e. being outside in a lightning storm with no means of leaving, no shelter and experiencing fear and anxiety regarding the position in which he found himself). That position finds support from the evidence of various Serco and MSS witnesses. Mr Richards gave evidence that he would expect Serco officers to seek shelter if they were outside and an electrical storm was approaching. He said that he would expect MSS officers on the external perimeter to seek shelter in a storm. There is no reason to differentiate between a MSS officer guarding the perimeter and one guarding the sterile zone, nor was one proffered. 404 Ms Graham, the MSS operations manager, recognised the potential danger and attempted to put in place a system whereby MSS staff, if outside, could leave the posts in a storm because she said that it was inappropriate for them to be out in such conditions. That is, she formed the view that the danger posed to the guards outweighed any security concerns. Her evidence was that Serco agreed to that suggestion. Ms Williams gave evidence that if a guard was placed in the sterile zone, they should be issued with a key. 405 Ms Williams further said that although the standard position was that a guard should not leave their post unless relieved, if lightning was close, she would take that into consideration if a guard made a request to leave their post during the storm. She said that the way it would have been taken into account is that Mr Iapadre should have been allowed to leave his post to seek shelter as soon as possible. She said that although she would have had authority to release Mr Iapadre upon his request, she would have referred the matter to the operations manager who she expected, properly informed, would have come to the same conclusion. 406 This evidence, both from the policy and guidelines and from the above officers, supports the position that security concerns should not prevail in the circumstances in which Mr Iapadre found himself and that he should have either -- 81 of 127 -- [2026] SADC 86 78 been provided with a key so that he could let himself out of sterile zone if he considered the circumstances that course or been let out of the sterile zone on request. 407 It is also no answer to say that in his requests to Control and then to Ms Williams, Mr Iapadre did not specifically express the fear and anxiety that he was experiencing at being trapped in the sterile zone during the lightning storm. Mr Iapadre was stuck in the sterile zone during a lightning storm making repeated requests to be let out. Serco knew or ought to have known of the matters that are set out above. In such circumstances, it was a breach of duty to deny or fail to act upon those requests. The same conclusion, and for the same reasons, is reached in relation to the requests made by Mr Iapadre to Ms Williams. Further, if Mr Iapadre had been provided with a key, he would have been able to make the decision himself to leave the sterile zone if he considered the circumstances required him to do so. 408 Serco also contended that the factual foundation of the case was entirely novel and that there has been no history of events of this nature having occurred in the past-i.e. a guard developing PTSD as a result of being trapped outside during a lightning storm. That issue goes to the question of foreseeability and the probability of the risk of harm materialising. It is a relevant matter therefore when evaluating whether there has been a breach of duty but is not determinative. It is not to the point to say that this case should be characterised as entirely novel. Many cases involve a unique set of facts that require the application of principes to those facts. If there had been a previous incident of a similar nature, that would be a relevant matter to assess in determining whether there had been a breach of duty. The absence of a previous incident does not however lead to the conclusion that no breach of duty occurred. 409 Serco further referred to the fact that the Australian Standard about lightning deals only with the risk of physical injury and not mental harm. While that is the case, the Standard does state that the response to a local storm should be to seek shelter. 410 Evaluating all of these matters, I find that Serco acted in breach of its duty of care to Mr Iapadre by stationing Mr Iapadre in the sterile zone without providing him with a key so that he could escape from the lightning storm or alternatively by not responding affirmatively to requests from him made during the course of the lightning storm to be allowed to leave the sterile zone. Causation 411 The common law test of causation applies. This requires the court to determine whether the respondent’s wrong was a cause of the applicant’s harm.64 Factual causation (being the relevant aspect of that test that is a matter of dispute 64 March v E & M H Stramere Pty Ltd (1991) 171 CLR 506; [1991] HCA 12. -- 82 of 127 -- [2026] SADC 86 79 in the present case)65 requires the court to be satisfied that but for the negligence, the harm would not have occurred.66 It is the “but for” test of causation:67 i.e. asking whether the applicant’s harm would have occurred but for the respondent’s wrong. As Gordon, Edelman and Gleeson JJ held in Tapp:68 412 A negligent action will be a "necessary condition" of the occurrence of harm if, "but for" the negligence, the harm would not have occurred. As French CJ, Gummow, Crennan and Bell JJ said in Strong v Woolworths Ltd, "[t]he determination of factual causation under s 5D(1)(a) is a statutory statement of the 'but for' test of causation: the plaintiff would not have suffered the particular harm but for the defendant's negligence". In this assessment, notions of "common sense" have no place. Not only do those notions have no foothold in the text of S 5D, but it has been repeatedly said in this Court that "it is doubtful whether there is any 'common sense' notion of causation which can provide a useful, still less universal, legal norm." The task of adjudication requires transparent reasoning, not consideration of whether a judge's "sense" of a result might be common with that of others. 413 If it is established on the balance of probabilities that the applicant’s harm would not have occurred but for the respondent’s wrong, factual causation will be established. Proof of causation is to be assessed in a practical and robust manner.69 It must be found on the balance of probabilities.70 The inquiry into causation is retrospective: the court looks back at what has happened and determines whether there is a link between the respondent’s conduct and the applicant’s harm. In Vairy v Wyong Shire Council,71 Hayne J held: The inquiry into the causes of an accident is wholly retrospective. It seeks to identify what happened and why. The inquiry into breach, although made after the accident must attempt to answer what a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. 414 If there are multiple events which might be said to have contributed to a harm, then it is sufficient if it is shown on the balance of probabilities that the claimed event materially contributed to that harm.72 Therefore, in the present case, even if the exposure to the lightning storm in circumstances where he was trapped and could not seek shelter caused Mr Iapadre to suffer from PTSD, but it remained 65 Questions of the scope of liability do not provide a basis for denying causation in the present case. 66 Tapp v Australian Bushmen’ Campdraft & Rodei Association Ltd (2002) 273 CLR 454, [101]; [2002] HCA 11. 67 Ibid. 68 Ibid. 69 Queen Elizabeth Hospital v Curtis (2008) 102 SASR 534, [44]; [2008] SASC 344. 70 Ibid. 71 (2005) 223 CLR 422, [124]; [2005] HCA 62. 72 Bonnington Casting Ltd v Warlaw [1956] AC 613; Amaca Pty Ltd v Booth (2011) 246 CLR 283, [70]; [2011] HCA 53. Romeo v Conservation Commission of the Northern Territory (1988) 192 CLR 431, 478. -- 83 of 127 -- [2026] SADC 86 80 dormant until after the events at Inverbrackie, the lightning storm would still have materially contributed to the PTSD and in legal terms, caused the PTSD. 415 Serco, as the wrongdoer, is responsible for all damage of the same type or kind as that which was reasonably foreseeable, even if the particular damage, or its extent were not reasonably foreseeable, or the damage occurred in an unexpected or unforeseeable manner.73 416 I am satisfied on the balance of probabilities that Mr Iapadre has PTSD and that the breach of duty by Serco in relation to the Incident at the NIDC at Darwin caused the PTSD. Both Dr Giardini and Dr Schutz agreed that Mr Iapadre had PTSD. They both agreed that the onset of PTSD may be delayed. There has been no other event that could have given rise to the PTSD, both experts agreeing that the events that occurred at Inverbrackie were not sufficient. Dr Schutz said that any alternate diagnosis was in the realm of conjecture and given the history presented by Mr Iapadre (which I have accepted), highly unreliable. As discussed earlier in these reasons, the evidence in relation to the prior lightning event was not sufficient to conclude that it may have been a triggering event for the PTSD. 417 The counterfactual of what would have happened if Serco had complied with its duty must be considered.74 It is clear that if Serco had provided Mr Iapadre with a key, he could have left the sterile zone before he became overwhelmed and commenced fearing for his life. Similarly, if his requests to be let out had been actioned (except for the last request made to Ms Wiliams which was made immediately prior to him experiencing the sense of fearing for his life), he would have been able to leave the sterile zone before he began to fear for his life and hence, the earliest point of time, when the conditions necessary for the later development of the PTSD, had occurred. 418 I have already found that the earliest point of time that the fear of life arose, and that was the triggering event for the PTSD, was at that point of time when, after making a third request to Ms Williams to be let out, she responded that he could leave the sterile zone only if he found someone else to replace him. It was at this point, that Mr Iapadre said that he formed the belief that he was going to die. It was at this point that the Court finds that the pre-conditions for PTSD occurred. There was, given the evidence of Mr Iapadre, at that time an accumulation of the fear that Mr Iapadre had been experiencing. Dr Schutz accepted that it was reasonable to conclude that there was an increasing sense of helplessness. Dr Schutz said that it was in the realm of speculation but not implausible that the PTSD would have developed within a few minutes. However, that was speculation and is not consistent with evidence given by Mr Iapadre that it was at the point that Ms Williams said that he could not leave the post unless someone took his place, that he formed the view that he was going to die. 73 Commonwealth v McClean (1996) 41 NSWLR 398; Chapman v Hearse (1961) 106 CLR 112, 120-12; Kavanagh v Akhtar (1998) 45 NSWLR 588. 74 Ibid [149]. -- 84 of 127 -- [2026] SADC 86 81 419 It is not correct to characterise Mr Iapadre’s exposure to the lightning storm as constituting as a continuing tort. Mr Iapadre is not claiming that there was a continuing tort. Rather, it is the case that prior to the time when he thought he was going to die, Serco had breached its duty of care by not providing Mr Iapadre with keys so that he could get out of the sterile zone and further, by not responding to his requests to be let out of the sterile zone, even though a finding cannot be made that he conveyed his distress to Control or Ms Williams, either verbally or non- verbally. Causation is therefore established because had the keys been provided or the requests responded to (with the exception of the last request to Ms Williams), Mr Iapadre would not have suffered the triggering event for the PTSD. 420 Serco further contended that it would still take 5-15 minutes to get Mr Iapadre out of the sterile zone from the time that he made a request and the time that the request could be acted upon. That does not accord with the evidence of Ms Williams who said that the request could be acted upon in a matter of minutes. I reject the submission that it would have taken up to 15 minutes to respond to the request. The evidence was such a request would only take a few minutes. If Mr Iapadre had been told that he was going to be let out of the sterile zone, then it is not likely that he would have developed the fear of dying. 421 It follows that I reject the submission of Serco that causation was not established because the Court was not in a position to make a finding as to when, during the course of the lightning storm, the triggering event for the PTSD occurred. Further, the provision of a key would have allowed Mr Iapadre to leave the sterile zone as soon as he felt unsafe or anxious. 422 Although it will be dealt with more fully in the following section of the reasons dealing with the quantum of Mr Iapadre’s claim, the heads of damage claimed by Mr Iapadre are all reasonably foreseeable with the exception of the claim for loss of rental from renting out the apartments following the completion of the Findon Development. That loss is pure economic loss which is not dependent on the loss of earning capacity. In relation to the work that Mr Iapadre was to undertake himself on the Findon Property, in Spargo v Greatorex75 and in Tunstill v SEC (WA)76, it was held that it was foreseeable that the plaintiff would suffer economic loss and loss of work capacity and that being unable to undertake work on his own project was damage of the same kind. Quantum 423 The determination of the quantum of the claim of Mr Iapadre is subject to the provisions of Part 4 of the Act. In relation to past and future pecuniary loss, ss 20- 22 provide: 20 In assessing damages to be awarded for: 75 (1992) 59 SASR 1,14; (1992) 16 MVR 1. 76 [1965] WAR 50. -- 85 of 127 -- [2026] SADC 86 82 (a) past pecuniary loss due to loss of earnings or the deprivation or impairment of earning capacity; (b) future pecuniary loss due to the deprivation or impairment of earning capacity; or (c) the loss of expectation of financial support, a court must disregard the amount (if any) by which the injured person’s gross weekly earnings would, but for the personal injury, have exceeded an amount that is 3 times average weekly earnings as published before 1 January preceding the date on which the assessment is made. Future pecuniary loss (1) A court may award damages for future pecuniary loss only if satisfied by the claimant that the assumptions about the injured person's future earning capacity, or the occurrence of other events on which the award is to be based, accord with the injured person’s most likely future circumstances had the personal injury not occurred. (2) If a court is satisfied under subsection (1) about the claimant’s assumptions, it must adjust the amount of damages for future pecuniary loss (as assessed on those assumptions) by reference to the percentage possibility that the events might have occurred regardless of the personal injury. (3) In awarding damages for future pecuniary loss, the court must state the assumptions on which the award is based and the relevant percentage by which damages have been adjusted. In relation to gratuitous services, s 23 provides: (1) A court may award damages for the provision of gratuitous services only if the court is satisfied: (a) that there is or was a reasonable need for the services; (b) that the need for the services is or was solely because of the personal injury to which the damages relate; and (c) that the services would not be provided, or would not have been provided, but for the personal injury to which the damages relate. (2) A court may award damages for gratuitous services only if the services are provided or are to be provided: (a) for 6 hours or more per week; and (b) for 6 months or more. (3)-(6) … In relation to pain and suffering, ss 24—27 provide: The purpose of this Division is: -- 86 of 127 -- [2026] SADC 86 83 (a) to abolish common law principles relating to the assessment and awarding of damages for pain and suffering, loss of amenities of life, loss of expectation of life or disfigurement; and (b) to provide for the assessment and awarding of damages other than for pecuniary loss on the basis of the degree of permanent impairment suffered by the injured person. Damages other than for pecuniary loss A court may award damages other than for pecuniary loss, or may refuse to award such damages, only in accordance with section after determining the injured person s degree of permanent impairment in accordance with section Assessment of degree of impairment (1) A court, in determining the degree of permanent impairment suffered by an injured person, must do so on the basis of evidence adduced under this section. (2) The claimant and the respondent may each adduce evidence for the purposes of subsection (1). (3) Evidence of permanent impairment is to be given only by a medical practitioner who has assessed the degree of permanent impairment in accordance with the prescribed guides and any applicable regulation. (4) The Regulations may provide for any matters in relation to the assessment of permanent impairment suffered by an injured person including the following: (a) the content of prescribed guides, including by modification of the American Medical Association Guides to the Evaluation of Permanent Impairment; (b) procedures relating to the assessment of permanent impairment; (c) the qualifications of medical practitioners who may give evidence under this section; (d) the costs in connection with the assessment of impairment. Damages for non-pecuniary loss (1) The maximum amount of damages a court may award for non-pecuniary loss is 680 000 monetary units. (2) A court must not award damages for non-pecuniary loss if the court determines the degree of permanent impairment to be less than 5% of the whole person. (3) When awarding damages for non-pecuniary loss, a court must award the following amount: (a) if the court determines the degree of permanent impairment to be 85% or more of the whole person – 680 000 monetary units; (b) if the court determines the degree of permanent impairment to be not less than 15% and not more than 84% of the whole person – the relevant percentage of 680 000 monetary units; -- 87 of 127 -- [2026] SADC 86 84 (c) if the court determines the degree of permanent impairment to be a percentage of the whole person specified in column 1 of the Table – the amount specified in column 2 opposite the relevant percentage 424 Mr Iapadre has made the following claims for damages: (1) general damages (pain and suffering and loss of amenity)-$356,048; (2) past economic loss and loss of earning capacity being the loss of the opportunity to complete the development of the Findon Property, and the loss from continued employment as a security guard, and loss of rental from the Findon Property-$810,000; (3) past loss -superannuation-$66,000; (4) future loss of earning capacity-$170,000; (5) future loss-superannuation-$28,000; (6) past gratuitous services-$230,000; (7) future paid assistance-$210,000; (8) past medical expenses (agreed) -$20,821; (9) future medical treatment-$20,000. Total $1,910,869.00 General damages 425 Part 4, Division 4 of the Act deals with the assessment of general damages including pain and suffering and the loss of the amenities of life. The common law Column 1 Column 2 Degree of permanent impairment as percentage of whole person Amount of damages to be awarded not less than 5% but less than 10% 13 600 monetary units 10% 20 400 monetary units 11% 27 200 monetary units 12% 40 800 monetary units 13% 54 400 monetary units 14% 81 600 monetary units -- 88 of 127 -- [2026] SADC 86 85 principles relating to the assessment of such damages are abolished by s 24(a). Section 26(3) provides that evidence of permanent impairment is to be given only by a medical practitioner who has assessed the degree of permanent impairment of the claimant in accordance with the prescribed guides and applicable regulations. Under s 18, prescribed guides means either the guides prescribed by the regulations (there are none) or if no guides are prescribed by the Regulations, the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment as published from time to time. Chapter 14 of AMA-6 (exhibit A91) sets out how mental and behavioural disorders are rated. That is the relevant guide for the purposes of assessing the degree of permanent impairment in this case. 426 Under s 27(1), the maximum award of damages for non-pecuniary loss is 680,000 monetary units. This is awarded if the court finds that the degree of permanent impairment is 85% or more: s 27(3)(a) of the Act. Pursuant to s 27(3)(b), if the Court determines the degree of permanent impairment to be between 15% and 84% (inclusive), the degree of impairment is the relative percentage of 680,000 monetary units. If the Court determines that the degree of impairment is less than 15%, the degree of impairment is set out in the table referred to in s 27. A monetary unit is $1.19 for the 2024/2025 financial year. 427 AMA-6 (exhibit A91) provides a number of indices in which mental and behaviour disorders are rated. They are the Brief Psychiatric Rating (the BPRS), the Global Assessment of Functioning Scale (GAF) and the Psychiatric Impairment Rating Scale (PIRS). According to AMA-6, the mental and behavioural disorder impairment rating is the median value of the BPRS, the GAF and the PIRS. The three scales measure slightly different things. The BPRS scale broadly assesses the range of mental health functions or dysfunctions. The GAF scale measures the level of functioning. The PIRS scale measures matters of daily living such as self-care and personal hygiene. 428 It is for the Court to determine the degree of impairment under the relevant scales and what number should be assigned to the various mental health functions or dysfunctions that are provided for in the rating scales. In general terms, a court will be reluctant to depart from the unchallenged evidence of a medical expert. Where there is conflicting evidence, the Court will determine the applicable rating by assessing all of the evidence and the opinions of the conflicting experts.77 The Court does not simply choose between the two experts. 429 Mr Iapadre gave evidence in his affidavit about the effect of PTSD on his daily life. He said that he experiences debilitating panic attacks. He said that he had ceased contact with his friends and had distanced himself from family members. He is not motivated. 430 Dr Giardini assessed Mr Iapadre against each of these three scales in determining an overall assessment of 40% for Mr Iapadre’s disability. In relation 77 Plumridge v Pandelis [2022] SADC 42, [54]. -- 89 of 127 -- [2026] SADC 86 86 to Mr Iapadre’s BPRS score, he assessed Mr Iapadre’s impairment against the 24 items that form that assessment. He assessed Mr Iapadre’s symptom construct impairment score as 76 which according to table 14-9 of AMA-6 meant an impairment of 50%. In relation to the PIRS, Dr Giardini assessed Mr Iapadre against each of the six items and assigned scores of 3, 4, 4, 4 ,4 and 5. The sum of the 2 middle scores was 8 which represents a PIRS impairment score of 40%. In relation to the GAF score, Dr Giardini assessed Mr Iapadre’s score as 21-30 which represented an inability to function in almost all areas (e.g. stays in bed all day, no job, home or friends). That meant an impairment of 30%. 431 AMA-6 requires the median (middle value) of the three scores to be used as the mental and behavioural disorder rating of Mr Iapadre. That rating, according to the assessment performed by Dr Giardini was 40%. 432 Dr Giardini was not cross-examined on the ratings he assigned or the overall assessment of impairment according to AMA-6 of 40%. 433 Dr Schutz also assessed Mr Iapadre against all three scales. Dr Schutz assessed Mr Iapadre on the BPRS scale as 56 which represented a 30% impairment. The first 14 items of BPRS are a self-report assessment where the medical practitioner is rating the injured person’s self-report. Dr Schutz was cross- examined on a couple of items. For example, he rated anxiety as five while Dr Giardini rated it as seven. Dr Schutz agreed that the self-assessment of anxiety was on the severe end but said that he was not sure that it would get to a seven which is extremely high. He admitted that it was potentially higher than five. Dr Schutz was also taken to the hostility rating. He rated that as one, but Dr Giardini rated it as six. Again, based on the description of behaviour of Mr Iapadre, Dr Schutz said it was more than a one but was less that a six which he understood involved assaulting others or destroying property. 434 Items 15-24 of the BPRS scale refers to matters of observation rather than self-report. In relation to excitement, the observations of Dr Giardini were that Mr Iapadre was always tense and apprehensive, had constant anxiety and trembling with exaggerated startled responses. Dr Schutz assigned a one to the category but agreed that on reflection, it could be more than a one. He said that you would have to go through line by line but agreed that these would be more than a one. 435 On the GAF scale, he gave Mr Iapadre a score of 41=15% impairment. Dr Schutz agreed that the GAF score is question of judgment by the clinician based on the history received. The rating of 41 represents serious symptoms, that is serious impairment in social and occupational functioning. He agreed that it represents impaired judgment but said there is some judgment. Dr Schutz disagreed with Dr Giardini’s rating of 21-30 and said that it is an inability to function in almost all areas. He said that he usually assigns that level to a person with very severe depression or schizophrenia. -- 90 of 127 -- [2026] SADC 86 87 436 Dr Schutz agreed in cross-examination that the PIRS score was a question of subjective judgment as to where the clinician rates each of the levels of functioning on a scale of 1-5. On the PIRS scale, Dr Schutz rated Mr Iapadre as having a 20% impairment. That represents the sum of the two middle scores (see p 361 of exhibit A91). On the assumption that Mr Iapadre had provided a reliable account of causative events, he apportioned 10% to the events at Darwin and 10% to the events at Inverbrackie. Dr Schutz rated Mr Iapadre as three for interpersonal relationships which represents a moderate impairment. Dr Giardini rated this as a four. Dr Schutz said that Mr Iapadre could get on with his mother but accepted that a different clinician might rate it as a four. He agreed that Dr Giardini would potentially have superior information. 437 Dr Schutz then applied the middle rating to the scores on the three scales which he assessed at 20%. He then apportioned that 10% to Darwin and 10% to Inverbrackie. Dr Schutz could not say that the apportionment between Darwin and Inverbrackie was a process that AMA 6 (exhibit R90) supported. 438 There are a number of reasons as to why the assessment of Dr Giardini should be preferred to that of Dr Schutz. 439 First, Dr Giardini was the treating psychiatrist and has regular consultations with him, about every four-six weeks, over a period in excess of 10 years. He has had the opportunity to observe and examine Mr Iapadre over that period. That placed Dr Giardini in the position where he could make an informed decision about each of the categories of impairment which he was required to assess. In cross- examination, Dr Schutz accepted that Dr Giardini had a stronger knowledge of Mr Iapadre that would put him on a stronger footing around impairment. That is, contrary to the submission of Serco, a reason why the Court would prefer Dr Giardini’s assessment where it conflicts with the assessment of Dr Schutz. 440 Secondly, in his cross-examination, Dr Schutz accepted that there were some areas where he might have been conservative in his assessment. I have referred earlier to those instances. That said, it is difficult to make, from a few instances, a finding about the overall approach of Dr Schutz. 441 Thirdly, there was no cross-examination of Dr Giardini in relation to his assessment and the scores that he assigned to particular categories. There was no evidence to suggest that Dr Giardini had gone about the process in a mistaken way or that the values that he assigned were wrong or inflated. Serco submitted that the determination of Dr Schutz should be preferred because Dr Giardini was not independent and was not in a position to make an objective assessment. I do not accept that submission. There was nothing to cause me to doubt that the assessment that was performed by Dr Giardini was his objective assessment. He was not cross- examined on his assessment. There was no submission that he made any particular error in his assessment. -- 91 of 127 -- [2026] SADC 86 88 442 Fourthly, Dr Schutz was wrong to apportion the percentage of impairment between the events at Darwin and Inverbrackie. The Court has found that the Incident caused, in a legal sense, the PTSD of Mr Iapadre. The task is then to assess, for the purposes of AMA-6, the degree of impairment. Questions of allocation of the cause of the PTSD do not arise. There is no basis to apportion the impairment under AMA-6. There is no plea of apportionment. 443 Fifthly, the overall assessments made by Dr Giardini accord with the evidence given about Mr Iapadre’s condition. For example, in determining the BPRS score, Dr Giardini assigns two scores of 7 (extremely severe) in relation to anxiety and depression and three scores of 6 (severe) to somatic concern, hostility and tension, and two scores of 5 (moderately severe) to guilt and hallucinations. This scoring does not appear excessive. Dr Giardini used PIRS impairment scores of 4 (the middle two scores) to calculate the overall PIRS impairment score of 40%. The score of 4 represents a severe impairment which again broadly conforms to the evidence concerning the PTSD of Mr Iapadre and the restrictions that are imposed upon him. Dr Giardini assigned a GAF score of 21-20 which indicates an inability to function in almost all areas and resulted in an impairment score of 30%. Again, that is consistent with the evidence about Mr Iapadre’s condition. 444 I am therefore satisfied that the scores assigned by Dr Giardini accord with the evidence that has been given in relation to Mr Iapadre’s condition and therefore, that these scores provide an appropriate basis to assess the degree of permanent impairment of Mr Iapadre due to his PTSD. 445 In relation to the dysphagia, Mr Iapadre has submitted that the impairment should be assessed at 2%. In making that submission, he relies upon the assessment of Dr Tomich in his report dated 14 September 2021 (exhibit A49) that assesses the impairment at 2%. Mr Iapadre then relied upon Dr Athanasiadis’ opinion that 80% of Mr Iapadre’s swallowing problems were related to the PTSD and 20% could be attributed to a mild weakness, unrelated to the PTSD. Mr Iapadre then submits that, in light of this evidence, his impairment from the dysphagia that was caused by the PTSD should be assessed as 80% of 2 which equals 1.6% which ought to be rounded to 2% in accordance with AMA-6. 446 Dr Tomich was not able to provide an opinion as to whether the dysphagia resulted from the Incident and the PTSD that followed. He did not give evidence in person. In his report dated 14 September 2021, he said in relation to PTSD as a cause, that a more appropriate concept would be to consider conversion dysphagia which is described as medically unexplained oropharyngeal dysphagia. He further said that this did not explain the causation of the demonstrated pharyngeal dysphagia. Ultimately, he said that the ongoing dysphagia was due to functional and pharyngeal dysphagia. 447 I have already found in relation to the opinions of Dr Athanasiaidis’ and Dr Raj that the dysphagia had pre-dated the Incident and therefore the dysphagia had not been caused by the PTSD. However, the dysphagia had worsened from the -- 92 of 127 -- [2026] SADC 86 89 PTSD but it is not possible to determine how much the dysphagia had deteriorated because of the PTSD. 448 Taking a broad-brush approach, I assess the impairment from the dysphagia as 1%. I do so because the worsening of the dysphagia from the PTSD caused by the Incident could not be described as insignificant. 449 In relation to the irritable bowel syndrome, Mr Iapadre relied on the report of Dr Jakobovitis dated 15 July 2021 (exhibit A50). Dr Jakobovitis, a gastroenterologist, was not called as a witness but his report was tendered without objection. Dr Jakobovitis was of the opinion that as a result of the Incident, Mr Iapadre developed very severe PTSD. He was also of the opinion that as a consequence of that injury he has developed severe irritable bowel syndrome with various physical symptoms such as a constant need to go to the toilet associated with alternating bouts of constipation and bowel frequency. Dr Jakobovitis assessed Mr Iapadre’s whole permanent impairment as 5% according to AMA-6, chapter 6. 450 Serco relied upon two reports of Dr Hunt dated 4 January 2022 and 31 March 2022 (exhibit R57). Dr Hunt, a consultant gastroenterologist and hepatologist, was also not called as a witness but his reports were tendered without objection. Dr Hunt was of the opinion that Mr Iapadre’s irritable bowel syndrome was caused predominantly as a consequence of mental harm (the PTSD). Dr Hunt also said that there were also no signs of irritable bowel syndrome which would also preclude a WPI assignment. 451 I reject both of these grounds as a basis for precluding the assignment of a WPI. The irritable bowel syndrome may have occurred as a consequence of the PTSD but it is a separate and distinct compensable injury.78 In Walker v Return to Work Corporation of South Australia (Walker),79 the Full Court held that the anxiety and stress suffered by the appellant in that case caused the appellant to grind his teeth at might causing TMJ (temporomandibular joint pathology) and dental problems.80 These latter problems were a disturbance of the normal physiological state and were not a disturbance or disorder of the mind.81 452 It follows, for the present case, that the irritable bowel syndrome, causing the various symptoms that have been described above, is a separate impairment under ASA-6 and should be assessed accordingly. It may have been caused by the PTSD which Mr Iapadre suffered as a result of the Incident but is a separate impairment, to be assessed independently. 78 see Walker v Return to Work Corporation of South Australia (2020) 137 SASR 214; [2020] SASCFC 53. 79 Ibid. 80 Ibid [63]. 81 Ibid [64]-[65]. -- 93 of 127 -- [2026] SADC 86 90 453 The further ground that Dr Hunt relied upon for not providing a WPI in relation to the irritable bowel syndrome was that there were no signs of irritable bowel syndrome evident (see report dated 31 March 2022, p 2 and p 5 of the report dated 4 January 2022). It is not altogether clear what Dr Hunt meant by this statement. It appears inconsistent with statements that he made in his report dated 31 January 2022 that: (1) Mr Iapadre has typical irritable bowel symptoms with mixed patterns of diarrhoea predominance with onset soon after his posttraumatic stress disorder which became evident in 2011-in my opinion, this is exacerbated by his psychological illness; (2) irritable bowel syndrome best describes the digestive symptoms of diarrhoea and lower abdominal pain associated with bowel motion; (3) the irritable bowel syndrome appears to have originated from the Incident given the onset of the symptoms has flared up with the Incident and they are known to be exacerbated by mental distress. 454 I therefore accept the opinion of Dr Jakobovitis that the WPI of Mr Iapadre in relation to the irritable bowel syndrome is 5%. There is no evidence that suggests a different figure should be adopted. Applying the combined value chart of AMA-6, the WPI are combined in accordance with the following formula: 40% (representing the PTSD impairment) + 5% (representing the irritable bowel syndrome impairment) = 43%. 43% + 1% (representing the dysphasia impairment) = 44%. 455 Pursuant to s 27(3)(b) of the Act, damages should be assessed as a relevant percentage of the 680,000 monetary units. The Court is assessing damages at the time of the judgment. It must use a multiplier to convert the percentage of 680,000 units into a dollar value. Therefore, for the period from 1 July 2025 to 30 June 2026, the multiplier is $1.23. Mr Iapadre in his written submissions used the figure for the previous financial year, 1 June 2024 to 30 June 2025 of $1.19. Serco used the figure for the financial year 1 July 2023 to 30 June 2024 of $1.14 which was the figure at the time of the filing of its written submissions, but the parties agreed that $1.19 was the figure for the following year. The figure for the financial year 1 June 2025 to 30 June 2026 was $1.23. 456 Subject to any further submissions by the parties, the Court proposes to use the figure of $1.23 being the figure that applies at the date of judgment. Applying this formula, 44% of 680,000=299,200. Applying the multiplier of $1.23 results in a damages award for non-pecuniary loss of $368,016.00. -- 94 of 127 -- [2026] SADC 86 91 Past economic loss and loss of earning capacity Approach to the assessment of damages for economic loss 457 In Graham v Baker,82 the High Court emphasised that the loss sustained by a person who is unable to earn income in consequence of an injury, is loss of earning capacity rather than loss of earnings. To be compensable, the loss must be productive of economic loss.83 There are two aspects to these damages: first, the past economic losses of the claimant being the loss of wages to the date of the trial and secondly, future economic loss having regard to the applicant’s condition and circumstances at the time of trial.84 In both cases, the starting point is for the Court to assess what the claimant would have earned if not injured and what they may earn injured. That task informs the court’s determination of the claimant’s loss of earning capacity. 458 Mr Iapadre, as the applicant, bears the onus of establishing, on the balance of probabilities, the loss of earning capacity and the financial loss caused by that lack of earning capacity.85 459 The question as to what Mr Iapadre would have earned if not injured (which includes both past and future economic loss), involves an evaluation of probabilities and possibilities.86 Mr Iapadre relies on matters that cannot now be ascertained with certainty. It cannot be established, with certainty, what Mr Iapadre would have done and what work he would have undertaken, had the Incident not occurred. In such a case, the approach to be taken is set out in the judgment of Deane, Gaudron and McHugh JJ in Malec v J.C. Hutton Pty Ltd.87 Such events are not susceptible of scientific demonstration of proof. When the law takes into account future or hypothetical events in assessing damages, it does so in terms of the probability of these events occurring.88 The Court assesses the degree of probability that the event would have occurred or might have occurred and then adjusts its award of damages to reflect that degree of probability.89 460 How to undertake that assessment was discussed in the NSW Court of Appeal in Kallouf v Middis90 where it was held that the Court should: (1) assess the “most likely” of the possible future economic circumstances facing the claimant but for the accident (including type of employment, duration of employment and remuneration); 82 (1961) 106 CLR 340. 83 Ibid. 84 Ibid 346-347. 85 Todorovic v Waller (1981) 150 CLR 402, 412. 86 Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20. 87 Ibid. 88 Ibid 643. 89 Ibid. 90 [2008] NSWSCA 61, [7]. -- 95 of 127 -- [2026] SADC 86 92 (2) assess the claimant’s economic prospects as a consequence of the accident; (3) compensate the claimant for the difference between (1) and (2), including, where appropriate, through the use of a buffer (a buffer being applied where the court attempts to place a value directly on the future loss of earning capacity and cannot do so by reference to estimated lost earnings or average earnings);91 (4) adjusts (3) by an appropriate percentage (including, where appropriate, by 0%) for vicissitudes, to reflect the possibility that the claimant may not have achieved (1) even had the accident not occurred; and, (5) include a statement of the assumptions made as to the claimant’s most likely future circumstances and the appropriate percentage adjustment. 461 In MacArthur Districts Motorcycle Sportsmen Inc v Ardizzone92, Hodgson JA observed that: The usual allowance [of the adjustment] of 15 percent is not on the basis that there is a 15 percent possibility that even without the injury, the plaintiff would not have achieved the most likely economic situation, but on the basis that this is a reasonable discount having regard to a myriad of possibilities each of which could have meant that the plaintiff fell short of this situation to various degrees. Assessing Mr Iapadre’s future economic circumstances-loss of earning capacity pre-trial 462 Before analysing each of the components of Mr Iapadre’s claim for damages, the Court must first make findings as to Mr Iapadre’s likely future economic circumstances had the Incident not occurred and had he not developed PTSD. 463 In the case of Mr Iapadre that is not a straightforward exercise as prior to working in Darwin at the NIDC, Mr Iapadre had worked for a number of years as a carer for his father. His last paid work in regular employment, except for the 2 months working at the NIDC, was therefore almost 10 years prior to the Incident. That prior work, nor his work as a carer, provide an accurate basis to determine what he would have done but for the Incident. 464 In these circumstances, the comments made by Gleeson CJ, Gummow, Kirby and Hayne JJ in Husher v Husher 93 are apposite: No doubt the past may provide important evidence about the plaintiff's earning capacity and what economic consequences will probably flow from what has happened. What a worker earned in the past may provide very useful guidance about what would have been earned if that worker had not been injured. But the inquiry is an inquiry about the likely 91 H Luntz and S Harder, Assessment of Damages for Personal Injury and Death (LexisNexis Australia, 5th ed, 2011), [6.3.5]. 92 (2004) 41 MVR 235; [2004] NSWCA 145, [23]. 93 (1999) 197 CLR 138, [8]; [1999] HCA 47. -- 96 of 127 -- [2026] SADC 86 93 course of future events and evidence of past events does not always provide certain guidance about the future. There may be many reasons why an injured plaintiff's past work history provides no assistance in deciding what that plaintiff has lost through diminution of future earning capacity. The student who is yet to enter the workforce is an obvious case of that kind. That student may have no history of paid work. Important as evidence of past events may be, that evidence is not determinative of an issue about loss of future earning capacity. 465 Mr Iapadre gave evidence that it was his intention to continue working at the NIDC for a period of at least two years so that he could raise the funds for the development of the Findon Property. He said that he did not have any contract, but that MSS were desperate for staff and for those staff to stay as long as possible. He said that he liked the work. 466 It was an agreed fact that Mr Iapadre’s hourly rate as a casual security guard was $29.06 per hour. Mr Iapadre’s statement of loss (exhibit A12) and confirmed in his affidavit of personal injury particulars (exhibit A13), stated he earned $29.06 per hour and worked 6 days a week and 12 hours a day and therefore earned ordinary wages of $2,092.32 per week. Mr Iapadre also received a meal allowance of $450 per week or $75 per shift. He was provided with accommodation at no cost. 467 Mr Iapadre said that he indented to complete the Findon Development once he had worked at the NIDC for a further 2 years. Mr Iapadre gave evidence that he estimated that it would take about six months to complete each unit. He said that he would have obtained help to do the framing and the plumbing and electrical work, but that he would have done all of the other trades himself (including the painting, cabinetry, bricklaying and tiling). Mr Iapadre gave evidence that he considered the Findon Property to be his superannuation and therefore would not have sold those units but developed them and rented them out. 468 Mr Iapadre said that once he had completed the development, he then intended to return to Darwin. He said that MSS had offered him work on Christmas Island and that it would have been worth taking up that offer. He said that if security work was not available, he would have taken up construction work. 469 The reference that was provided to Mr Iapadre by Ms Williams and Mr Reki on 25 January 2011 (p 1268 of exhibit A5) provides support for the position that Mr Iapadre would have been able, if he had wished to do so, to obtain employment with Serco or MSS at some later point of time, had he left NIDC and returned to Adelaide to complete the Findon Development. 470 However, Mr Iapadre had a number of issues relating to his work at the NIDC and his relationship with Serco management, unrelated to the Incident, which cast doubt on him working for Serco, or in detention centres operated by Serco, in the long run. In his letter to his then solicitor, Mr Esau, on 10 November 2011 (exhibit R22), Mr Iapadre referred to: -- 97 of 127 -- [2026] SADC 86 94 • struggling to cope with the atrocities and torture inflicted upon him by Serco management while working at the NIDC; • Serco being a ruthless, callous and militant organisation; • a conflict between MSS management and Serco management; • Serco management treating MSS employees as filth and scum; • the turnover of MSS employees as being quite staggering and many employees walking off the job and being stood down for being non- compliant; • trying to remain calm and that was why Serco management tried to break him; • as a Serco officer in a detention centre, it took very little to lose your job; • Mr Richards, the operations manager, being particularly hostile to him (Mr Iapadre) (examples provided). 471 In a statement that was provided to an investigator for the purposes of his worker compensation claim (p 1399 of exhibit A5), Mr Iapadre described the working conditions at the NIDC. He said that the weather conditions were very hot, only intermittent and unsatisfactory shade was provided, the radiant heat and humidity were extreme, his arms became blistered and infected from the prolonged exposure to the intense heat and sun. 472 Serco contends that as a result of these matters, the Court should not find that Mr Iapadre would have remained at the NIDC during the period from 1 January 2010 to 31 December 2012. 473 The following findings are made as to the future economic circumstances facing Mr Iapadre but for the Incident: 474 First, at the time of the Incident, Mr Iapadre was employed by MSS as a guard at the NIDC. He did not have a fixed contract. His work was satisfactory based on the reference that he had received from Ms Williams. There also was a demand for guards. He wished to save money so that he could undertake the development of the Findon Property. These are matters that suggest that Mr Iapadre would have continued working at the NIDC for the next couple of years. I am satisfied on the balance of probabilities that the most likely course of events was that Mr Iapadre would have continued to work at the NIDC for a further two years, but for the Incident. 475 Secondly, there were however, a number of matters which may have caused Mr Iapadre to cease working at the NIDC. He referred to them in his letter to Mr -- 98 of 127 -- [2026] SADC 86 95 Esau and in his statement made in relation to his workers compensation claim. They were: (1) the difficult and extreme conditions posed by the Darwin weather at the NIDC and in particular the heat, humidity and lack of shade and the consequent infections; (2) his relationship with Serco management and in particular with Mr Richards; and (3) the way that Serco managers treated MSS staff. 476 Thirdly, in the event that he ceased work at the NIDC because of the reasons mentioned in the preceding paragraph, it is likely that Mr Iapadre would have sought employment at some other detention facility. This is evidenced by the fact that after leaving the NIDC in December 2010, Mr Iapadre did in fact commence work for Serco at Inverbrackie in February 2011. It is likely that the remuneration and other benefits (such as accommodation and meal allowance) under this alternative employment would not have been as favourable as the employment at the NIDC. At the NIDC, Mr Iapadre was earning $2092.32 per week plus a meal allowance of $450 per week plus superannuation and accommodation. At Inverbrackie, he was earning a little over $1200 per week. 477 Fourthly, following the period of about 2 years at the NIDC or at some other employment, I am satisfied on the balance of probabilities that the most likely scenario would have been that Mr Iapadre would have commenced undertaking the development of the Findon Property. I will address separately the issues relating to this development. This accords with his evidence and the reasons why the Findon Property was purchased. 478 Fifthly, Mr Iapadre intended to complete the Findon development. Mr Iapadre had purchased the Findon Property well prior to the Incident. He did so for commercial reasons and in particular so as to ensure an income in the future. He therefore planned to develop the units and then rent them out. He undertook some work on units 6 and 7 prior to the Incident but was prevented from undertaking more work because of his responsibilities as a carer for his father. It is the more probable inference from these facts that he intended to complete the development. 479 Sixthly, Mr Iapadre did not have sufficient funds at the time of the Incident to undertake the development and needed to save money to do so. That was the evidence of Mr Iapadre and accords with logic and common sense. 480 Seventhly, after the Findon Development was completed, Mr Iapadre would have sought further employment, most likely as a security guard or possibly in construction. This was the effect of Mr Iapadre’s evidence. I am satisfied that on the balance of probabilities that is the most likely scenario. The development of the Findon Property was an interlude and there is no reason why Mr Iapadre would not have sought to re-commence employment once that development had been completed. -- 99 of 127 -- [2026] SADC 86 96 481 Mr Iapadre would have had to overcome some obstacles to obtain such employment. By that time, the NIDC had closed down and Mr Iapadre would have been in his mid-50s. Further, he had significant physical injuries which may have impeded his ability to work, and which would likely have been exacerbated by his manual work in undertaking the development of the Findon Property. He had injured or had issues with both knees in the period between 2008-2010. In 2016, he had reported ongoing knee pain including going to accident and emergency. This flare-up occurred in circumstances where Mr Iapadre had not undertaken any physical activity of significance, let alone physical labour. 482 Still further, Mr Iapadre had a spinal fusion for chronic back pain in 2017. Mr Iapadre accepts that he must give credit, when calculating his loss of earning capacity, for the time that he would have been out of work when undergoing that operation. 483 Mr Iapadre said that he developed the back pain in 2015. Again, it is likely that undertaking the physical labour required to develop the Findon Property would have restricted the ability of Mr Iapadre to subsequently seek employment. 484 Dr Chase, who did not give evidence in person and was not required for cross-examination, provided a report (exhibit R56) in which he stated that the various pre-existing musculoskeletal conditions of Mr Iapadre (neck, lower back and knees) would have had an impact on his employment and would have impacted on his capacity for employment. Dr Chase stated that Mr Iapadre would not have been able to undertake work which required heavy manual labour or repetitive lifting and he would have found it difficult to work in security if there was conflict or a requirement to restrain others. Dr Chase said that he would be able to engage in static security work or in security monitoring work. 485 Before assessing the quantum of Mr Iapadre’s claim for past economic loss, it is appropriate to deal with some of the other issues relating to his claim for past economic loss. Loss of Superannuation 486 Associated with his loss of earning capacity, is the loss of the superannuation payments that would have been paid as part of his wages in any employment that he had with MSS, Serco or elsewhere. If a claimant is deprived of his earning capacity, he or she will often also lose their rights to superannuation benefits and is entitled to damages for that loss.94 487 Under the Superannuation Guarantee (Administration) Act 1992 (Cth), the minimum superannuation contribution has since 1 January 2011 been 9-9.5%. 94 Todorovic v Waller (1981) 150 CLR 402, 425-6; (1981) 37 ALR 481. -- 100 of 127 -- [2026] SADC 86 97 Employment of his labour in the Findon Development 488 Mr Iapadre has sought, as part of his damages, the value of the labour that he was not able to employ in the development of the Findon Property. In making that claim, he relies upon the principles set out in Spargo v Greatorex (Greatorex).95 In Greatorex, Mulligan J (White ACJ and Prior J agreeing) held that the true measure of the loss suffered by a plaintiff who was not able to employ his labour in a project was not the difference in value of the property as developed compared to its value before any such development but the loss the plaintiff (Mr Greatorex) suffered by not being to employ his own labour and skills in undertaking the development (in that case, building a house at Hillbank).96 The circumstances of that case was that Mr Greatorex was intending to develop vacant land that he and his wife had purchased at Hillbank. He was intending to employ his own labour to build the house. However, because of a motor vehicle accident, he was not able to do so. Instead, he and his wife purchased land at Salisbury and, using a contractor, developed that land. The trial Judge found that Mr Greatorex was entitled to damages calculated by reference to the difference in the value between the Hillbank Property (had it been developed) and the Salisbury Property (as developed). 489 The Full Court, on appeal, held that the inability of Mr Greatorex to employ his labour did not prevent the construction of the Hillbank Property because he could have used a contractor to do so. Therefore, the Court found that the only consequence of the accident was that he could not use his own labour to do so and that therefore was the measure of his loss. 490 The Full Court in Greatorex, relied on the decision in Tunstill v State Electricity Commission of Western Australia (Tunstill).97 In Tunstill, the plaintiff was unable, because of the negligence of the defendant, to employ his own labour to build his house. Instead, he engaged a contractor to do so. Negus J held that the plaintiff, because of the accident, suffered loss because he could not prevent the expenditure of money through engaging a contractor, by undertaking the work himself. The loss was the value of the labour in the development. 491 In both Greatorex and Tunstill, it was not open for the claimants to claim the loss occasioned by the difference in value of the subject property as developed and in its undeveloped state. That is because the negligence of the defendant in each case did not prevent the development from taking place. Therefore, in each case, it was held that the measure of the loss was the value of the work that the plaintiff was unable to perform because of the negligence of the defendant. 492 Kourakis CJ in Motor Accident Commission v Raccanello,98 discussed Greatorex and held that the Full Court clearly recognised that loss of earning 95 (1992) 59 SASR 1; (1992) 16 MVR 1. 96 Ibid 13. 97 [1965] WAR 50. 98 [2025] SASCA 146. -- 101 of 127 -- [2026] SADC 86 98 capacity is not measured only by reference to renumeration for loss of services provided to another but may also be measured by reference to the loss of capacity to build or create an asset of value.99 493 In the present case, Mr Iapadre has been both unable himself to perform the work on the Findon Development and as a consequence has not been able to complete the development. Mr Iapadre did not have any other means available to him to complete the development. In those circumstances, the loss suffered by Mr Iapadre could be calculated by reference either to difference in the value of the property, as developed, and in its undeveloped state, or the value of the work that he was prevented from employing on the property. He has chosen the latter alternative. Provided the work was carried out efficiently and to a satisfactory standard, it is reasonable to assume that there would be a correlation between the value of the work and the value of the Property. The Court therefore finds that the loss of capacity of Mr Iapadre to perform the work in undertaking the Findon development is part of his loss of earning capacity and is a valid head of damages. Loss of rental income 494 Mr Iapadre has also claimed the loss of rental income that he would have obtained through the development of the Findon Property. Mr Iapadre has claimed damages for the loss of the rental of two of the units from 1 January 2015 to 26 September 2024 at the rate of $360 per week, less tax of 37% or $120,000 per unit for that period. The date of 1 January 2015 (as the start date for this aspect of the claim) was chosen because it was the date when Mr Iapadre says that he would have completed the development, but for the PTSD. The date of 26 September 2024 was chosen because it was the end of the trial. Mr Iapadre only claimed for the loss of rent from two units on the basis that he might have lived in one of the other units and not all units would have been let out simultaneously. 495 Mr Iapadre owned four of the seven units in the complex. The proposed development involved the conversion of the existing shops into two storey, one- bedroom residences in respect of units 4 and 5. Units 6-7 had been combined into a single two storey, 2-bedroom unit which had been completed but which Mr Iapadre intended to turn back into two one-bedroom apartments. 496 The rental figure of $360 per week was derived from the report of Mr Alexander dated 26 April 2024 (exhibit A39). In that report, he said that the rental market for 2 storey apartments (one bedroom) in Findon at that time was $430-450 per week. He said that there were not any comparable rentals of one- bedroom apartments, so he considered two-bedroom apartments or units as the starting point. He said that newer two-bedroom apartments were renting in the region of the mid to high $500s per week and the older apartments in the region between $400-$480. He said that the apartments that were going to be built on the 99 Ibid [39]. -- 102 of 127 -- [2026] SADC 86 99 Findon Property would not be brand new but were not old or run down and he took that into account in arriving at the figure between $430-$450 per week. 497 Mr Alexander also adopted an earlier appraisal of his colleague, Ms Gaye Dawe (exhibit A38) dated 3 July 2018. It was the opinion of Ms Dawe that in 2018 the rent of one-bedroom apartments was between $310-320 per week and two- bedroom apartments was between $330-340 per week. The $360 per week therefore represented a blended rate. Mr Alexander said that he assumed the standard of completion was high quality and brand new. 498 Mr Alexander had not inspected the Findon Property nor the apartment that had been renovated (units 6 and 7). He had examined photographs of the property and the renovated apartment. He accepted that someone who inspected the site might be a better position to express views about rental values and that there are some matters that cannot be ascertained from a photograph. In cross-examination, he accepted that there are a number of variables that could affect the rent that might be obtained. These include whether a number of properties might come onto the market at any one time. 499 Mr Alexander’s report was rudimentary. He did not annex to the report, as he admitted in cross-examination, vacancy rate data relevant to Findon and surrounding suburbs, he had not undertaken an analysis of what effect the vacancy rate data might have on the rent that could be obtained, he did not annex any data showing rent increases in Findon from 2014, or an analysis of property values in Findon. He said that he had examined recent leases of comparable apartments, drawing data from CoreLogic and incorporating a Comparative Market Analysis Report (a CRM report). 500 Mr Andrews, a licensed valuer, prepared a report dated 16 May 2024 (exhibit R93) in which he commented on the report produced by Mr Alexander. Mr Andrews was not required for cross-examination, and his report was tendered without him being called as a witness. Mr Andrews inspected units 6 and 7 and provided the opinion that the standard of fit out reflected a basic entry level standard. It reflected an owner builder standard. He provided the opinion that Ms Dawe could have expanded her rental range to reflect the potential variation in quality. He said that although Mr Alexander had used the CRM report, there were two matters that he did not properly analyse and they were locational characteristics and standard of fit out, both of which Mr Andrews believed to be critical for potential rental return. 501 I make the following findings in relation to the claimed loss of rental income. I will deal later in these reasons whether a claim for loss of rental income can be sustained as a matter of law. 502 First, Mr Iapadre had the necessary building skills to undertake the development, although the development was of a greater magnitude than anything that he had previously undertaken. This ability is demonstrated by the previous -- 103 of 127 -- [2026] SADC 86 100 building work that he had undertaken and the fact that he had undertaken the work on units 6 and 7 and converted them into a single unit. 503 Secondly, Mr Iapadre’s undertaking and completion of the work was likely to be impacted by his pre-existing injuries and in particular the injuries to his knees and back. He had sustained knee injuries prior to the Incident, and these flared up in 2016. His chronic back pain resulted in a spinal fusion in 2017 or 2018. There is a possibility that these conditions would have impacted on Mr Iapadre’s ability to carry out the work and the completion of the work by 1 January 2015, being the intended completion date. The development of the Findon Property obviously would have involved hard physical labour. 504 Thirdly, the standard of completion of the units that had been developed (units 6 and 7) was only basic. In this regard, I accept the opinion of Mr Andrews expressed in his report and consider that to be a more accurate basis for a finding on the standard of finish than the photographs that were examined by Mr Alexander. Mr Iapadre submitted that the weight to be given to the opinion of Mr Andrews must be considered in the context that Mr Andrews had inspected the units about 15 years after the works to units 6 and 7 were completed and in circumstances where no maintenance work had been able to be carried out by Mr Iapadre. That is true but does not detract from Mr Andrews’ ability to make an assessment of the quality of the work. 505 Fourthly, the blended rent suggested by Mr Alexander is too high. That figure assumes a high standard of work which was not consistent with the work that had actually been done. The Court was not provided with evidence of an alternative figure. Mr Iapadre’s economic capacity following the Incident 506 Both Dr Giardini and Dr Schutz agree that because of his PTSD, Mr Iapadre is totally incapacitated for work. Following the end of his work at Inverbrackie in December 2011, it does not appear to be seriously in contention that Mr Iapadre is totally incapacitated for work. Since that time, Mr Iapadre has not undertaken any paid or even unpaid work. He has not undertaken any work on the Findon Development. Calculation of past economic loss 507 Mr Iapadre has approached the calculation of the quantum of his past economic loss by working out the loss for each activity and then providing an overall discount for contingencies of 15%. I consider that a better way to approach this issue is to calculate the loss from each of the components of the past economic loss and apply the adjustment for contingencies to each component. I take this approach because of the differing nature of each of the components of loss and therefore, the amount of any adjustment for contingencies differs in relation to each component. The adjustment is to be made because Mr Iapadre may have been prevented from exercising his earning capacity to the full extent. The adjustment -- 104 of 127 -- [2026] SADC 86 101 may take into account events which either positively or adversely affect the earning capacity of the plaintiff.100 508 Mr Iapadre submitted that the Court should take into account a number of factors, some positive and others adverse, when calculating the appropriate adjustment for contingencies. Ultimately, Mr Iapadre submitted that a 15% discount of contingencies was appropriate. The factors that Mr Iapadre referred to were: (1) Mr Iapadre had prospects of promotion within the security industry. He referred to the evidence of Ms Willams, Mr Richards, Mr Hayes and Mr Trigar to support that submission, although all of those persons were employed by Serco. The prospects of promotion can be accepted if Mr Iapadre was working with Serco. There was no evidence about the possibility of promotion within MSS; (2) From 2015, Mr Iapadre most likely would have stayed working in the security industry but may have worked in other industries including construction. Administration/clerical work would have been a fallback. There may have been periods of unemployment if he stopped work to pursue intermittent construction or development work. It is unlikely that Mr Iapadre would have been able to work in the construction industry post 2015, given his age and more particularly, the injuries to his knees and back. It is also unlikely that Mr Iapadre would have been able to fallback to administrative work given the period of time since he had undertaken that work; (3) Rent for the Findon Property may have been greater or less than what has been assumed and there may be periods of time where the units were vacant. Those matters may occur but on the findings of the Court, it is more likely that the rent would have been less than the $360 per week referred to by Mr Alexander. (4) Mr Iapadre would not have incurred maintenance and repair costs because he was capable of undertaking such work himself. However, that may have required time out of work if such work could not be undertaken after hours. Mr Iapadre’s ability to undertake maintenance and repair costs would likely be affected by the knee and back issues that he suffered; (5) the labour barter system may have continued where Mr Iapadre helped out his friends and they helped him. The ability of Mr Iapadre to continue to receive such assistance would depend on him being in a physical state where he could help others. 100 Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485, 497; (1995) 133 ALR 154. -- 105 of 127 -- [2026] SADC 86 102 Loss of earning capacity in the Period from 1 January 2011 to 31 December 2012 509 The first period of loss relates to the period in which Mr Iapadre intended to continue to work at the NIDC in Darwin. The Court has found that was Mr Iapadre’s intention, but that there was a possibility that might not have occurred because of the difficulties that Mr Iapadre was experiencing with Serco management, and in particular with Mr Richards, and with the conditions in Darwin. In particular: (1) if he had continued with such work, there is the possibility that he would have obtained a promotion. That was relatively unlikely given that he was working for MSS. The evidence about promotions related to Serco employees; (2) Mr Iapadre found the physical working conditions at the NIDC (i.e. the heat and humidity) harsh and unpleasant. This raised the possibility that he may have left his employment at the NIDC before the end of 2012; (3) Mr Iapadre may have worked less hours than he was working at the time of the Incident. At the time of the Incident, he was working 12 hours a day and 6 days a week. However, he had been in this employment only for a couple of months and it may have been the case that he was not able to sustain that level of work over a 2 year period; (4) Mr Iapadre may have not worked 52 weeks a year and may have taken some holidays. It is likely that Mr Iapadre would have wished to take holidays to visit his mother in Adelaide, given that his mother was elderly. Further, if Mr Iapadre continued to work 12 hours a day, 6 days a week, he may have needed to take some holidays over the 2 year period; (5) Mr Iapadre found Serco management to be harsh and unreasonable as set out in his letter to Mr Esau; (6) Mr Iapadre found the operations manager of the NIDC, Mr Richards to be singling him out for unfair treatment; (7) if Mr Iapadre left Darwin, then it is likely that he would have returned to Adelaide and worked at Inverbrackie for a reduced wage. 510 Mr Iapadre engaged Mr McPharlin to prepare two expert reports which provided an analysis of the loss he suffered under various scenarios in relation to his future employment. Mr McPharlin did not test the assumptions upon which he based his report or make any adjustment to those assumptions. He simply adopted the assumptions and then used the figures to calculate the taxable income of Mr Iapadre and then adjusted that income for work related expenses, tax, Medicare and superannuation. -- 106 of 127 -- [2026] SADC 86 103 511 None of the scenarios upon which Mr McPharlin made calculations accord precisely with the way in which Mr Iapadre gave evidence and the findings of the Court as to the intentions of Mr Iapadre. However, the calculations provide a basis upon which the Court might make determine the loss following its findings as to the intentions of Mr Iapadre. 512 In his supplementary report (exhibit A40), Mr McPharlin, as part of scenario 1, calculated the loss of Mr Iapadre based on him continuing to work at the NIDC until 2025. These figures are set out in appendix 6 of exhibit A40 (page 795 of exhibit A40). The figures in appendix 6, because they use the NIDC salary figures until 2025, cannot form the basis of the overall calculation of Mr Iapadre’s loss. 513 However, the calculations performed in appendix 6 include calculations of Mr Iapadre working at the NIDC and therefore allow a calculation of the amount that Mr Iapadre would have earned had he remained at the NIDC for 2 years until December 2012. These figures are based on a weekly salary of $2,092 per week, a meal allowance of $450 per week and working 52 weeks per year. Mr McPharlin has calculated that the net loss per year on this scenario is $94,285. In his written submissions, Mr Iapadre has submitted that loss over a 2 year period at a gross figure of $264,360 and $185,000 (net of tax)(with rounding) and to that has added a further figure of $37,440 (over 2 years) which represents the loss of the accommodation benefit that Mr Iapadre contends that he should be compensated for of $360 per week for 2 years or $37,440 in total. I do not consider that additional amount for the accommodation benefit should be allowed. The accommodation benefit is not paid to Mr Iapadre but rather he receives the benefit of accommodation that he does not have to pay for. However, in Adelaide, he was staying at his mother’s house and there is no evidence that he paid any money to do so or that he was intending to move out. Therefore, the provision of the accommodation does not confer on Mr Iapadre any financial benefit. 514 In his written submissions, Mr Iapadre has accepted that there should be offsets of $38,782 representing the net earnings that Mr Iapadre earned at Inverbrackie and a further amount of $90,000 net which represents the payment received by the applicant from the SA workers compensation claim of $12,420 between May 2012 and August 2013 and backpay of $97,559.61 making a total of $110,019.51 or $90,000 net. Mr Iapadre deducted the total sum of $128,782 (being the $38,782 plus the $90,000) from his overall claim for past loss of earning capacity. As the amounts were received in 2011 and 2012 and referrable to income derived in this period, it is appropriate to deduct them from this part of the claim. 515 Serco has not made any submissions that the treatment of tax, Medicare or superannuation undertaken by Mr McPharlin in Appendix 6 is not correct. I therefore accept that the loss of Mr Iapadre is $185,000 (subject to adjustment for contingencies) less the $128,782 in offsets. 516 Mr Iapadre has applied a standard adjustment for contingencies of 15%. I have set out the contingencies that are relevant to the determination of the -- 107 of 127 -- [2026] SADC 86 104 calculation of this part of the claim. In particular, Mr Iapadre may not have worked 6 days a week and 12 hours a day and 52 weeks a year over the 2 year period, he may have taken leave, and he may have returned to Adelaide for a number of reasons and earned a reduced wage of about $1237 per week. These are all matters that are additional to the normal contingencies of not more than 15% referred to by Mr Iapadre in his written submissions. 517 Serco submitted that if damages for past economic loss and loss of earning capacity are to be awarded, any assessment should be made in accordance with scenario 4 of Mr Wigg’s supplementary report (exhibit R43). That scenario is based on Mr Iapadre working as a security guard for the period from January 2014 to September 2024 and applies an industry wage throughout that period. I do not consider that to be an appropriate way to approach the quantification of Mr Iapadre’s loss as it does not take into account what Mr Iapadre was intending to do, and the wage that he was earning while working at the NIDC during 2011 and 2012. 518 I therefore consider that it is appropriate to use Mr McPharlin’s report (appendix 6) as the basis for the calculation of loss, but that it is appropriate to apply a discount of 25% to this part of the claim of Mr Iapadre. Adopting the starting point of $185,000, this part of the claim is reduced for contingencies to $138,750. Deducting the net figure of the offsets of $128,782, Mr Iapadre is entitled to the sum of $9,968 for this part of the claim. Value of work undertaken in undertaking the Findon Development 519 Mr Iapadre has claimed, as part of his damages, the value of the work that he would have undertaken in competing the Findon Development. Mr Iapadre says that this work would have been undertaken in a 2-year period in 2013 and 2014. The Court has found that in accordance with the decision in Greatorex v Spargo, Mr Iapadre is entitled to claim for this work as part of his damages claim. It follows that I reject the contention of Serco that no allowance should be made for damages under this head of damages. 520 In his written submissions, Mr Iapadre has claimed the sum of $86,000 per annum gross as the value of this work which represented a net loss of $72,533 per annum or $145,066 in total. The sum of $86,000 was calculated on the basis that the value of Mr Iapadre’s labour was $50 per hour and Mr Iapadre working 40 hours per week and 48 weeks a year. 521 The Court accepts that Mr Iapadre intended to work 40 hours per week and 48 weeks a year. Those figures represent an average and reasonable working year and accords with the evidence that Mr Iapadre gave about his intentions and previous work history. The $50 per hour rate is derived from the report of Mr Thompson (exhibit A54) which was tendered, although Mr Thompson was not required for cross-examination. In his report, Mr Thompson set out the market cost for various positions over a number of years including, relevantly, 2013 and 2014. -- 108 of 127 -- [2026] SADC 86 105 The market cost of a skilled labourer in 2013 and 2014 was about $55-56 and the value of a project manager was between $88-91 in the same years. 522 Serco submitted that the Court should not accept that Mr Iapadre would have worked 40 hours per week, 48 weeks a year and further that the rate of $50 per hour should not be adopted and that a figure of about $37 per hour was appropriate. Serco contended that there was no evidence that Mr Iapadre would have worked 40 hours per week and 48 weeks a year. In relation to the hourly rate, Serco referred to the report of Mr Thompson (exhibit A54) where he stated that if the market cost of the labour is exclusive of any profit margin, the average market rate of skilled labourers in 2013 and 2014 was $37 per hour. 523 I consider that it is reasonable to find that Mr Iapadre would have worked 40 hours per week and 48 weeks a year. Mr Iapadre gave evidence, which I accept, about his previous work history including working on building projects out of hours. He gave evidence about working 6 days a week at the NIDC. It was likely that he would have been motivated to complete the Findon Development as quickly as reasonably practicable. 524 Whether an hourly rate of $37 per hour or $50 per hour should be adopted is dependent on the characterisation of the nature of the compensation that is awarded to Mr Iapadre under the Greatroex v Spargo damages. Those damages are awarded because the work undertaken by Mr Iapadre would have contributed to the value of the Findon Property once it was developed. The work undertaken by Mr Iapadre does not include any allowance for a profit margin. The work is undertaken as an owner builder, not as a person obtaining a profit from that work (e.g. as a company that hires labourers would seek). Any profit is derived from the increased value of the Findon Property. In those circumstances, it is appropriate to use the figure of $37 per hour for Mr Iapadre’s hour. 525 The amount claimed by Mr Iapadre is therefore calculated (in accordance with the methodology employed by Mr Iapadre in his written submissions) by the number of hours per year multiplied by the hourly rate (i.e. 40 x 48 x $37=$71,040) to arrive at a gross figure of $71,040 per year. Using the simple tax calculator for the year 2013-2014, gives an amount of tax payable of $14,535, leaving a net amount of $56,505 per year. The value of the work over the two-year period (before considering any adjustment for contingencies) is $113,010. 526 On the methodology applied by Mr Iapadre, that adjustment should be no more than 15%. That would result in a loss under for this aspect of the claim of $96,058. 527 The following contingencies apply to the work to be undertaken in developing the Findon Property (apart from the general contingencies that form part of the 15% allowed for by Mr Iapadre): -- 109 of 127 -- [2026] SADC 86 106 (1) there was a risk that Mr Iapadre would have been unable to carry out that work because of his pre-existing injuries to his knees and back. Mr Iapadre says that he does not presently experience any symptoms relating to his knee and back, but he has not undertaken any physical work; (2) there was a risk that Mr Iapadre would be unable to complete the work to a satisfactory standard and might need further paid assistance to complete the work. If that was the case, the value of the labour that he employed, would be diminished; (3) there was a risk that the work would take longer to complete for a number of reasons including because of general delays in carrying out of the works, the pre-existing injuries suffered by Mr Iapadre) and delays in obtaining planning approval. This delay would not affect the overall value of the work but would affect the time when the work would be completed and therefore the time when Mr Iapadre could seek further employment. It is therefore relevant to Mr Iapadre’s claim for loss of earning capacity from 1 January 2015. 528 Taking into account these contingencies, I consider that an adjustment for contingencies of 30% is appropriate. Applying that adjustment, I allow $79.107 for this part of the claim. Loss of earning capacity from 1 January 2015 to 26 September 2024 529 The next part of Mr Iapadre’s claim for loss of earning capacity is for the period from 1 January 2015 (being the date when the Findon Development would have been completed) to 26 September 2024 (being the date of the end of the trial). Mr Iapadre gave evidence which I have accepted that, but for the Incident, it was his intention that he would resume work in the security industry although he may have worked in construction. 530 In calculating the quantum of this part of the claim, Mr Iapadre relied upon the supplementary report of Mr Wigg (exhibit R43) because in undertaking an assessment of the total loss suffered by Mr Iapadre, Mr Wigg used figures based on the employment of Mr Iapadre as a base level guard in the security industry. Mr Wigg conducted a review of the wages of such guards in his report and then uses figures consistent with that review in his modelling (appendices 9 and 10). Mr Iapadre in his written submission adopts those figures which I consider appropriate and conservative. As Mr Iapadre stated in his written submissions, the figure used is less than the average weekly earnings in South Australia for Australian males. 531 Mr Iapadre then applies the figures set out in appendix 9 and 10 in Mr Wigg’s report for the financial years ending 30 June 2016 to 2024 and the further 3 months to 26 September 2024. He then adds to that sum half of the annual loss (i.e. $29,303) for the financial year ending 30 June 2015 to take into account that the -- 110 of 127 -- [2026] SADC 86 107 calculation of this part of the loss commences on 1 January 2015. Applying these figures, Mr Iapadre calculates the gross loss of income to be $586,433. This takes into account the time off work that Mr Iapadre had when he had a back fusion in 2018 and also the other deductions allowed by Mr Wigg. Mr Wigg then calculated the net income after tax for the same period. This resulted in a loss of $478,496, net of tax. 532 I consider that the approach of Mr Wigg and adopted by Mr Iapadre to be an appropriate way to calculate the net loss of income suffered by Mr Iapadre in this period before an adjustment is made for contingencies. The relevant contingencies are: (1) Mr Iapadre may not have worked the entire period because the Findon Property took longer to develop than expected. There was a risk that the work would take longer to complete because of general delays in carrying out of the works, the pre-existing injuries suffered by Mr Iapadre) and delays in obtaining planning approval (if for example, the co-owner did not wish to proceed and the approval that had been obtained, had to be amended). Equally, the Findon Property may have been completed in a quicker time, although given Mr Iapadre’s physical condition, this is not likely; (2) Mr Iapadre may have ceased work prior to September 2024 given that he was then 66 years of age. Mr Wigg referred in his report to an IBIS World Industry Report 07712 titled Investigation and Security Services in Australia dated April 2022 which states that the industry had a high employee turnover due to extensive after-hours work and often difficult working conditions; (3) if Mr Iapadre were, himself, to undertake the maintenance and repairs of the Findon Property, his ability to work full time may have been inhibited (if the work could not be undertaken out of normal hours) or at the very least, prevented him working outside of South Australia; (4) Mr Iapadre may have had difficulty in finding security work given that he would not have been employed in the industry whilst he was undertaking the Findon Development and therefore would be seeking a new position and was by that time in his late 50s; (5) Mr Iapadre’s ability to gain and undertake security work may have been impeded by his physical injuries. 533 Taking into account the contingencies referred to above, I consider that an adjustment (deduction) for contingencies of 40% should be made. Some of the contingencies, if they eventuated, would operate so as to reduce Mr Iapadre’s claimed lost income by a substantial amount. Applying that adjustment to the -- 111 of 127 -- [2026] SADC 86 108 claimed loss of income of $478,440, results in a net loss of income in this period of $287,064. Summary of past loss of earning capacity 534 The past loss of earning capacity after adjustment for contingencies and allowed for income payments for each of the periods is as follows: (1) for the period 1 January 2011 to 31 December 2013, the sum of $9,968; (2) for the period 1 January 2013 to 31 December 2014, the sum of $79,107; (3) for the period 1 January 2015 to 26 September 2024, the sum of $287,064. (4) Total past loss of earning capacity (after adjustments and allowances) the sum of $376,139. Past loss of rental income 535 Mr Iapadre claims, as part of his past economic loss, the rent that he would have derived from renting out the units in the Findon Property, once that development had been completed. He claims that the lost rent that he would have received for two of the four units was $360 per week for the period from 1 January 2015 to 26 September 2024. Applying a tax rate of 37% to that income, Mr Iapadre claims the sum of $120,000 per unit or $240,000 in total. Mr Iapadre claims loss of rent for only two of the units on the basis that he might have lived in one of the units and it would have been difficult to have all three of the remaining units let at the same time. 536 I will first deal with the issue of whether the claim for loss of rental is recoverable as a matter of law. I will then deal with the quantum of the claim. 537 I do not consider that the claim for the loss of rent is compensable. Mr Iapadre is to be compensated for the loss of his earning capacity. In relation to the Findon Development, he is compensated for his loss of earning capacity by not being able to use his labour in undertaking the development. The loss of rent is not loss of earning capacity but is pure economic loss. Such damage is too remote and not closely enough related to the wrong committed by Serco.101 In Raccanello, Kourakis CJ surveyed authorities that dealt with claims of pure economic loss and held that these cases did not support a wider proposition that pure economic loss, consequential upon the reduction in income flowing from a diminution of earning capacity was compensable.102 Personal injury compensation is confined to loss of earning capacity, not lost income.103 The High Court in Mallonland v Advanta 101 Motor Accident Commission v Raccanello [2025] SASCA 146, [8]. 102 Ibid [36]. 103 Ibid [45]. -- 112 of 127 -- [2026] SADC 86 109 Seeds Pty Ltd (Mallonland) 104 confirmed that a claim for pure economic loss (such as the claim for loss or rent) is not recoverable. Gageler CJ, Gordon, Steward, Glesson, Jagot and Beech-Jones JJ held:105 As a general rule, damages are not recoverable in negligence for pure economic loss, that is, for loss that is not consequential upon injury to person or property. Ordinarily, a person does not owe a duty to take reasonable care to avoid causing reasonably foreseeable pure economic loss to another This general rule reflects the well-established position at common law that the infliction of economic loss does not, by itself, infringe any right or legally protected interest of the plaintiff. The general rule is also said to reflect policy concerns about the potentially excessive scope of liability for financial loss, referred to by Cardozo CJ as liability "in an indeterminate amount for an indeterminate time to an indeterminate class".] Another policy reason said to justify the general rule is a concern to avoid infringing upon the legitimate pursuit of personal advantage. A consequence of the general rule is that damages for pure economic loss are not recoverable if all that is shown is that the defendant's negligence was a cause of the loss and the loss was reasonably foreseeable. (citations omitted). 538 These propositions are well established.106 Cases where pure economic loss are recoverable may occur where the respondent has knowledge that the applicant, individually, and not merely as a member of a class, will be likely to suffer economic loss as a result of the negligence of the respondent107 or where the respondent has assumed a responsibility to the applicant to take reasonable care to avoid economic loss.108 None of these exceptions apply in the present case. 539 Further, Mr Iapadre has been compensated for the loss of his labour that he has used in undertaking the Findon Development. That compensation for that loss of labour is predicated on the value of the Findon Property increasing by reason of exertion of that labour. In the case of the Findon Development, the increased capital value represents an acknowledgement of the amount for which the apartments could be rented out. 540 It follows that the claim for loss of rent cannot be sustained. 541 Although it is not necessary to do so, I will determine the quantum of that claim, in the event that the claim for loss of rent was compensable. 104 (2024) 98 ALJR 956,[2024] HCA 25. 105 Ibid [30]-[33]. 106 Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (Caltex) (1976) 136 CLR 529, 555; [1976] HCA 65; Perre v Apand Pty Ltd (1999) 198 CLR 180, 192; [1999] HCA 36. 107 Caltex, ibid [555]. 108 Mallonland (2024) 98 ALJR 956, [333]; [2024] HCA 25, [333]. -- 113 of 127 -- [2026] SADC 86 110 542 Serco submitted in its written submissions that no allowance should be allowed for past loss of rental income on the basis that Mr Iapadre has failed to establish on the balance of probabilities that: (1) he would have completed the Findon Development but for the Incident; (2) that the development would have been of a sufficient standard to attract prospective tenants; (3) he would have been able to command a rental income from the units. 543 Serco further submitted in its responding written submissions that Mr Iapadre has not provided any evidence of the expenses that would be incurred in generating the rental income. Those expenses, Serco contended, would include the cost of building materials, the costs of architects and engineers and other contractors such as electricians and plumbers, land tax, the price paid for the purchase of the Findon Property and interest on any loan taken out to purchase the Property. 544 I do not consider that the cost of purchasing the Findon Property should be taken into account as Mr Iapadre gave evidence that he had purchased the Findon Property in September 2001 for $50,000. He had therefore incurred the expense prior to the Incident and it was not a further expense that would have been incurred in obtaining the rental income. There was no mortgage over the Findon Property. There was no evidence that he had taken out a loan to purchase the Property. There is therefore no reason to make any deduction for interest payments on the purchase price. There is also no evidence that land tax would have been imposed on the Findon Property. 545 I accept that Mr Iapadre would have incurred costs in undertaking the Findon Development and that these costs should be deducted from the rental income that he would have obtained. Although there was little evidence about the quantum of those costs, I do not consider that the lack of evidence on this topic should preclude damages being claimed under this head of damage. The evidence from Mr Iapadre was that he would do the majority of the work himself and would call in reciprocal arrangements with friends for anything that he could not do. Based on his previous experience, it was only towards the end that he needed the assistance of an electrician, plumber and bricklayer and only had to pay the plumber and the bricklayer. The order of cost estimate prepared by Mr Chris Sale (exhibit A53) provides some, although relatively limited, assistance in determining what costs might be incurred in undertaking the development. The costs estimate was prepared on the basis that a commercial builder was undertaking the development. The costs estimate shows that materials were required to be purchased including air conditioner, roof, walls floor truss, fencing and gates. It is apparent that most of the work involved labour costs. There was little external structure work. Taking a broadbrush approach, the sum of $50,000 should be deducted from the rent that Mr Iapadre would have received based on costs that he would have expended on materials, professional fees and trades. -- 114 of 127 -- [2026] SADC 86 111 546 I am satisfied that the development would have been completed and to a standard that was sufficient to be able to rent the units to tenants, even if the standard would be more akin to owner builder than a professional standard. Mr Iapadre had experience in undertaking modest developments and already had performed work on units 6 and 7. He had also previously renovated his parents properties and the property at Bedford Park. The evidence of Mr Alexander supports a finding that Mr Iapadre would have been able to rent the units. I further consider that the approach of Mr Iapadre to claim loss of rental of 2 units is reasonable given that 3 units were available for rent but that periods of rental may have been lost because of re-letting delays or repairs or maintenance. I have already expressed the view that the rental figure of $360 per week was too high because of the standard of fit out. Taking a broadbrush approach, I would allow $330 per week. 547 There were various further contingencies that may affect the receipt of rental: (1) there was the risk that the units would not achieve a rental of $330 per week. It was possible of course that the blended rent may exceed $330 per week, but given the Court’s findings in relation to the expected quality of the work, it is more likely that the rent will be lower than it would be higher; (2) Mr Iapadre may incur maintenance and repair costs that he is unable to undertake himself because of his injuries that pre-existed the Incident; (3) there was the risk that the development work might take longer than expected and the units would not have been ready at 1 January 2015 for rental. Conversely, the development may have been able to be completed at a faster rate. 548 Mr Iapadre has calculated net rent from 1 January 2015 of $120,000 per unit or $240,000 in total. This was calculated on the basis of 508 weeks multiplied by $360 (for rent) and the application of tax of 37%. I accept that this figure as an appropriate starting point. This calculation should be modified to take into account the rental figure of $330 per week and the deduction of $25,000 per unit for costs of materials. Therefore, the calculation is as follows (per unit): Loss of rent. Step 1: 508 weeks x $330 per week =$167,640; Step 2: Reduce that sum by $25,000 (costs of material etc)=$142,640; Step 3: Apply a tax rate of 37% to that sum =$89,863; Step 4: Loss of rent for 2 units =$179,726; Step 5: Applying a discount of 25% for contingencies on that sum =$134,794. -- 115 of 127 -- [2026] SADC 86 112 549 I consider that an adjustment of 25% should be made for the contingencies that I have previously addressed. I therefore would have assessed damages for this part of the claim (had it been compensable) in the sum of $134,794. 550 However, for the reasons that have been previously expressed, the claim for loss of rent is not compensable. Offsets 551 Serco has claimed that it is entitled to an adjustment for the collateral benefit that Mr Iapadre received by the purchase of the Henley Beach Road, Lockleys Property (the Henley Beach Road Property). As discussed earlier in these reasons, Mr Iapadre purchased this property for $238,000 with the proceeds of the workers compensation payment from his claim in the Northern Territory. Both parties accept that he has an obligation to repay that sum. The property is now worth $310,000 (exhibit R94). There is therefore a capital gain of $72,000.00. 552 Serco contends that the capital gain on the Henley Beach Road Property should be deducted from the amount of damages that is awarded to Mr Iapadre. Serco relied on the following passage from Luntz “Assessment of Damages for Personal Injury and Death” (Luntz)109 which dealt with collateral benefits: The basic principle, at least in cases based on negligence, is one of compensation; the plaintiff should not be better off financially than without injury. Thus, prima facie, the damage should be reduced by the amount of any collateral benefit received. 553 Mr Iapadre opposed any deduction. He did so on a number of grounds. First, he submitted that Mr Iapadre had made a prudent investment decision which involved using the compensation for his lost potential earnings which he must repay. Secondly, he submitted that Serco had not proven the capital loss and simply relied on the valuer-general’s valuation which was not a sufficient basis for the Court to make any determination on the value of the property. Thirdly, Mr Iapadre submitted that as a matter of principle that because the worker’s compensation benefit must be repaid, any gain on the investment of the worker’s compensation payment is a collateral benefit that should be ignored on the calculation of his loss. He said that if Mr Iapadre has invested his settlement moneys and made a loss, he would not be liable for that loss. Equally, he should not be liable for any gain. Mr Iapadre placed reliance on the following passage from Luntz:110 Where the plaintiff is legally obliged to repay the collateral source out of damages, the principle of compensation is not offended if the plaintiff is allowed to obtain damages as through no collateral benefit had been received. The plaintiff may be obliged to repay the collateral source by virtue of legislation under which the benefit was paid to the plaintiff, by reason of subrogation or other restitutionary remedy or as a result of an agreement with 109 H Luntz and S Harder Assessment of Damages for Personal Injury and Death, (LexisNexis Australia, 5th ed 2011) [9.1.6]. 110 Ibid. -- 116 of 127 -- [2026] SADC 86 113 the collateral source. In such cases, the collateral benefit should be ignored in the computation of the plaintiff’s damages. 554 Dealing with the first matter raised by Mr Iapadre, I consider that the fact that the purchase of the Henley Beach Road Property might be said to be a prudent investment decision, raises the issue of what is the nature of the benefit that Mr Iapadre has received by the increase in value of the Henley Beach Road Property. In my view, the relevant collateral benefit is the receipt of the workers compensation payment. How Mr Iapadre used that benefit is not the relevant benefit. The Court does not normally enquire as to how a benefit is used once it is received by an injured party. That issue becomes too remote. It would involve considering the investment decision made by the injured party which is a separate matter. 555 As to the value of the Henley Beach Road Property, I am prepared to accept the value of the valuer general. That value shows modest growth over the period in which the property has been held. There is no evidence that indicates any other value. The valuation accords with common sense. 556 As to the third matter raised, I agree that the benefit of the increase in value of the Henley Beach Road Property that has been received should be ignored. The collateral benefit is the money used to purchase the Henley Beach Road Property. That money must be repaid. Serco argues that the capital gain on the purchase of that property, because it does not have to be repaid, should be deducted from any award of damages because if allowance is not made for the capital gain, Mr Iapadre will be in a better position than he would have been if the Incident had not occurred. I do not accept that submission. The question of how monies that form part of compensation or damages are used is too remote to be considered in calculating the amount of damages to be awarded. The capital gain is not consequent upon the Incident but on decisions made after the money is received. The position is akin to pure economic loss which is regarded as being too remote. I consider that the capital gain on the property (which has not yet been realised) falls into the same category. 557 It follows that the amount received by Mr Iapadre should not be adjusted for the capital gain of $72,000 (less the capital gain tax that would be payable on that sum). Loss of superannuation 558 Mr Iapadre has claimed a loss of superannuation benefits based on the loss of earning capacity. He has claimed that loss on his gross income that he would have earned for the periods: (1) 1 January 2011 to 31 December 2012 (on the basis that he would have been employed at the NIDC during that period, but for the Incident). During that time, he would have earned superannuation on the gross income at the rate of 9% pursuant to the minimum superannuation -- 117 of 127 -- [2026] SADC 86 114 contribution rate then applicable under s 19 of the Superannuation Guarantee (Administration Act) 1992 (Cth); (2) 1 January 2015 to 26 September 2024 (on the basis that he would have been employed as a security guard during that period, but for the Incident) and during time would have earned superannuation on the gross income at the rate of 9.5% pursuant to the minimum superannuation contribution rate then applicable under s 19 of the Superannuation Guarantee (Administration) Act. 559 Mr Iapadre then adjusted this amount for contingencies. 560 Serco did not dispute that superannuation should be allowed on the past loss of earning capacity, nor did it dispute the rate at which that superannuation should be calculated. Serco submitted that if Mr Iapadre was entitled to damages, then his past loss of superannuation benefits was in the sum of $30,074. That sum was based on the loss of income calculated by Mr Wigg for a security guard for the whole period at a base level. I have previously found that I do not consider that is an appropriate way to calculate the loss of income, given the findings that I have made about Mr Iapadre’s intentions. It follows that it cannot form the basis for the calculation of the loss of superannuation benefits. 561 I make the following findings. 562 Mr Iapadre suffered a loss of superannuation which is to be calculated in the first instance on his gross salary that he would have earned during the period from 1 January 2011 to 31 December 2012 of $264,368. Applying the 9% rate for superannuation, equates to a loss of $23,000 (rounded). This amount should be discounted for contingencies by the same 25% that applied to Mr Iapadre’s claim for loss of earning capacity in this period. That reduces his claim for loss of superannuation benefits for this period to $17,250. There should also be a deduction for the superannuation which Mr Iapadre received from his work at Inverbrackie. There is no evidence of his gross salary that he received at Inverbrackie but there is evidence that his net salary was $38,782. Applying a broadbrush approach, there should be a deduction of $4,000 for the superannuation that Mr Iapadre received from his employment at Inverbrackie. This reduces the amount of his claim for the loss of superannuation in this period to $13,250. 563 The second period in which Mr Iapadre contends that he would have been employed and therefore lost the benefit of the superannuation benefit is the period from 1 January 2015 to 26 September 2024. In that period, the gross income that he would have received was $586,433. Applying the superannuation rate of 9.5% to that figure results in a loss of $55,711. This amount should be discounted for contingencies by the same 40% that applied to Mr Iapadre’s claim for loss of earning capacity in this period. That reduces his claim for loss of superannuation benefits for this period to $33,427. -- 118 of 127 -- [2026] SADC 86 115 564 Mr Iapadre’s total claim for past loss of superannuation benefits therefore is $46,677. As set out below, the Court has rejected Mr Iapadre’s claim for future economic loss. It therefore follows that his claim for loss of superannuation benefits for this period is also rejected. Future economic loss 565 Mr Iapadre has claimed future pecuniary loss. He has claimed that he would have continued to work in the security industry from the age of 66 to the age of 70 when he would retire. He has claimed a loss based on the current base income in the security industry of $80,134 per annum, converting to $56,737 net of tax per annum. 566 Under s 21 of the Act, the Court can only award damages for future pecuniary loss if the applicant satisfies the court that the assumptions about the person’s future earning capacity (or the occurrence of other events upon which the award is to be based) accord with the injured person’s most likely future circumstances had the injury not occurred. 567 Mr Iapadre has not satisfied that onus. I am not satisfied that the most likely future circumstance is that Mr Iapadre would have, but for the Incident, continued to work beyond 66 years of age and until he was 70 years old as a security guard. 568 There is no basis for Mr Iapadre’s assertion that he would have continued to work past 66 years of age and until he was 70 years of age. There are a number of reasons why that finding is made. First, Mr Iapadre’s age would have been a barrier to such employment or continued employment. Secondly, he had other sources of income, including the rental received from the Findon Property, which would have meant that there was unlikely to be a financial imperative for him to continue to work until he was 70 years of age and beyond 66 years of age. If he moved out of the family home that he had been living with his father (until he died) and his mother since 1984, his evidence was that he would have moved into the renovated unit. Thirdly, his pre-existing physical injuries would have likely impaired his ability to work and even more so as he got older. Fourthly, Mr Wigg referred to evidence that the security industry has a high employee turnover. Fifthly, Mr Iapadre did not have an established work history. 569 Accordingly, the Court does not award any damages to Mr Iapadre for future pecuniary loss. It follows also that no award is made for loss of superannuation on that claimed future pecuniary loss. Past Gratuitous Services 570 Mr Iapadre has claimed damages in the sum of $230,000 for the past gratuitous services that were rendered by his sister-in law, Teresa Iapadre. This sum was calculated on the basis of Teresa working 10 hours per week although Mr Iapadre states, inconsistently, that he has been in receipt of a constant rate of gratuitous services of 8 hours per week. Teresa has, since 2010, been the full time -- 119 of 127 -- [2026] SADC 86 116 carer of Mr Iapadre’s mother. She said that she receives a carer’s pension for looking after her mother in law. She said that Mr Iapadre was in Darwin when she commenced becoming the carer for her mother in-law. She said that while she is her mother in law’s full time carer, Mr Iapadre also lives at his mother’s house so she obviously is going to “do stuff for him as well.” 571 Section 23(1) of the Act provides that a court may award damages for the provision of gratuitous services only if the court is satisfied that there is a reasonable need for the services and the need arose solely because of the personal injury. Section 23(2) of the Act provides that a court may award damages for gratuitous services only if the services are provided for 6 hours or more per week and for 6 months or more. 572 As set out later in these reasons, I consider that there is a reasonable need for some services because of the injuries suffered by Mr Ipadre. The issue in relation to this head of damages is whether the services are provided for 6 hours per week or more. 573 Teresa gave evidence that she spends around 20 hours per week on cleaning and cooking related tasks, including grocery shopping and laundry at her mother - in law’s house and about half of that was on behalf of Mr Iapadre. She said that the cleaning included the bathrooms and the toilet and that she did Mr Iapadre’s washing which he left in a basket. She does not specially cook for Mr Iapadre but there are always leftovers which Mr Iapadre eats. She said that she always cooks more than is needed and that she and her husband usually eat with her mother-in law. Mr Iapadre does not join them. She said that she takes her mother-in-law grocery shopping twice a week. She said that she does not intend to provide care for Mr Iapadre when her mother-in law dies or goes into a nursing home. 574 Mr Iapadre also gave evidence that he ate the leftovers. He also said that Teresa does not clean his bedroom or the computer room (which he goes into) and that his bedroom is an “absolute mess.” Teresa also said that she does not go into these rooms. Mr Iapadre said that he puts out a laundry basket which his mother or Teresa collects. I accept that Teresa performs his laundry. 575 I am not satisfied that Mr Iapadre has established that Teresa provides 6 hours or more per week to him of gratuitous services. In White v Benjamin,111 Beazley ACJ held (although dissenting in the result) that where the elements of a claim for services are severable between the applicant and other persons who share the benefit of those services, it is not permissible to commingle all aspects of the services in order to determine whether the threshold of six hours a week has been met.112 576 However, Beazley ACJ went on to hold where the services are not severable, the commingled needs of the husband and wife are no less than the needs of the 111 (2015) 70 MVR 188; [2015] NSWCA 75. 112 Ibid [14]; Allianz Australia Insurance Ltd v Ward (2010) 79 NSWLR 57; [2010] NSWSC 720. -- 120 of 127 -- [2026] SADC 86 117 wife because they are in some cases mutual.113 Therefore, where chores are undertaken for the benefit of the household and are not severable, such as cleaning kitchens and bathrooms, these services cannot be disentangled.114 577 In the present case, the chores performed by Teresa cannot, in the main, be said to be for the benefit of Mr Iapadre. They are performed for the benefit of her mother-in-law. Teresa receives a carer’s allowance for the performance of the chores and her performance of these services pre-dated Mr Iapadre developing PTSD and in fact commenced while he was still in Darwin. The dinner and meals are cooked and prepared for her mother-in-law and Mr Iapadre only receives leftovers (and Teresa and her husband often share the meal with her mother-in- law). Teresa goes grocery shopping with her mother-in-law to obtain the food. It is her mother-in-law’s house which she cleans. Teresa says that she does not see Mr Iapadre often and might see him on average once a week and they don’t usually converse. 578 In these circumstances, I consider that the services that Teresa performs for her mother-in-law are severable from those she performs for Mr Iapadre. The work that Teresa does for Mr Iapadre is incidental and additional to the work that she performs for her mother-in-law for which she receives the carer’s pension. Teresa gave evidence that because of the cleaning of the bathroom and toilet, the washing/laundry and the cooking, half of the twenty hours of work that she performed each week was for Mr Iapadre’s benefit. 579 I do not accept either that half of the twenty hours per week are for Mr Iapadre or that the services that Teresa performs for Mr Iapadre amounts to 6 hours per week. Mr Iapadre receives left over meals, his laundry washed and the cleaning of the bathrooms and toilet (the latter tasks being commingled). The cleaning of the remainder of the house cannot be said to be for his benefit. The time spent on the left over meals is minimal. I accept about 1-2 hours per week might reasonably be spent on his laundry. Similarly, I accept 1-2 hours per week might reasonably be spent on cleaning of the bathroom and toilet. I do not accept that this amounts to 6 hours per week. 580 Accordingly, the claim of Mr Iapadre for damages for past gratuitous services is not allowed. Future Care 581 Mr Iapadre has claimed for future care based on the market value for the provision of those services. He has claimed damages in the sum of $210,000 for future care. The measure of the loss that is claimed is the replacement, at commercial rates, of the domestic assistance needs of Mr Iapadre that are met by 113 Ibid [15]; Hodges v Frost (1984) 53 ASLR 373, 388; [1984] FCA 98. 114 Ibid. -- 121 of 127 -- [2026] SADC 86 118 Teresa. Mr Iapadre claims 8 hours per week. Mr Iapadre accepts that it is appropriate to allow a contingency of 25% for this claim. 582 Serco denies any liability for future care and contends that Mr Iapadre has failed to establish the need for future care or tender appropriate evidence to enable the Court to make an assessment of the costs of future care. 583 Serco further contended that no damages should be awarded for future care on the basis of the evidence of Dr Giardini. In his report dated 7 April 2019, Dr Giardini is asked the question, “does Mr Iapadre require, or would his condition materially benefit from any, and if so what, paid domestic assistance of care”. In response, Dr Giardini states, “No, I don’t think domestic assistance would be relevant in this case.” I do not consider this statement can be construed as saying that Mr Iapadre would not require, in the future, paid domestic assistance or care. Dr Giardini is expressing an opinion as to whether Mr Iapadre at the time of his report requires paid domestic assistance. At that time, Mr Iapadre is living with his mother and Teresa is providing services as a carer to his mother. Teresa is also providing some services to Mr Iapadre. In those circumstances, Mr Iapadre does not at that time require paid assistance. Dr Giardini is not expressing any opinion as to whether such services might be required in the future when Teresa no longer acts as the carer for Mr Iapadre’s mother. 584 I accept that it is appropriate to analyse this claim in accordance with the 4- step process identified in Kallouf v Middis. Further, as the claim is for future pecuniary loss, s 21 of the Act applies. The court can only award damages for future pecuniary loss if satisfied by the applicant that the assumptions about the other events upon which the award is based accord with the injured person’s most likely future circumstances, had the personal injury not occurred. 585 The first step in assessing future care is to assess the most likely circumstances of Mr Iapadre had the Incident not occurred. There was evidence of the various pre-existing injuries that Mr Iapadre had suffered, but there is no evidence that these injuries would have required him to obtain paid domestic assistance. The most likely future circumstance is that Mr Iapadre would have continued to live with his mother (as he had done since 1984 except for the brief time that he spent in Darwin) and then, when she died or could no longer live independently, lived by himself without the need for domestic assistance. 586 The second step is to assess the future domestic circumstances of Mr Iapadre. Mr Iapadre has lived with his mother at her house since his return from Darwin in 2010 and therefore there is a strong inference that he will continue to do so until such time as she dies or moves into an aged care facility. The evidence from Teresa is that when Mr Iapadre’s mother dies, she will not continue to provide domestic services to Mr Iapadre. She has little interaction with Mr Iapadre and finds it difficult to interact with him. -- 122 of 127 -- [2026] SADC 86 119 587 The Court then has to assess what are the likely domestic circumstances of Mr Iapadre at that time. Although there was no direct evidence on this topic, I consider that it is likely that Mr Iapadre will live alone. The evidence concerning his PTSD, and his general unsociability makes it unlikely that he would live with anyone else. The Court is not able to make a finding as to where Mr Iapadre would live. He could continue to live in his mother’ house but if she died, it is likely that the house would be sold so that its proceeds could be divided between him and his siblings. However, there is a degree of speculation in this scenario as the contents of the will of his mother is not known, nor the attitude of his siblings or other beneficiaries. If he cannot continue to live at his mother’s house, it is likely that Mr Iapadre would live at his Henley Beach Road Property. 588 There was no direct evidence as to what assistance Mr Iapadre would require if he lived alone. There was no direct evidence as to what Mr Iapadre is capable of doing himself. The medical evidence is that Mr Iapadre has significant PTSD and lacks motivation and energy. He suffers from agrophobia and an inability to relate to others. However, the assessment of Dr Giardini as the degree of permanent impairment of Mr Iapadre provides a basis to establish there, he has a need for future care. Dr Giardini assesses Mr Iapadre under the PIRS in relation to self-care personally hygiene and activities of daily living as having a moderate impairment and that he could not live independently without regular support and needed prompting and could not prepare his own meals. Further, in relation to concentration, persistence and pace, Mr Iapadre is assessed as having a severe impairment and that he had difficulties following simple instructions and unable to live alone or needs regular assistance from relatives. 589 I consider that it can be inferred from this medical evidence and the evidence as to his PTSD that he does not possess the ability to properly take care of himself. In these circumstances, the Court finds that Mr Iapadre will require assistance, in the form of paid domestic assistance, to look after himself. 590 In assessing the quantum of the claim for domestic assistance, I have not accepted that Teresa currently provides 8 hours of assistance to Mr Iapadre. It follows that amount of assistance cannot provide the basis for a finding as to the amount of assistance that Mr Iapadre will require. Mr Iapadre will require assistance with the laundry, meal preparation, grocery shopping and cleaning, the extent of what he will require will depend on whether Mr Iapadre lives in his mother’s house or in his unit. For example, groceries may be able to be arranged to be delivered. Food can also be delivered or prepared in a batch for the week. Taking a broad approach, I find that Mr Iapadre will need 5 hours assistance per week. 591 The third step is to assess the difference between Mr Iapadre’s position but for the Incident and his current position. But for the Incident, he would not have required the future domestic assistance. Therefore, the difference is the amount of the services. -- 123 of 127 -- [2026] SADC 86 120 592 The parties have agreed that the current NDIS rate of $55.03 per hour for assistance with personal domestic activities provides the basis for the cost of these services. The weekly cost is therefore $275.15 (based on the five hours of assistance that I have found rather than the 8 hours claimed by Mr Iapadre). The applicant has used the actuarial multiplier of 638.6 for a 66-year-old man for life, at a discount rate of 5% to calculate the amount required to provide those services for life. Using the weekly cost of $275.15 and multiplying that by 638.6 results in a capitalised amount of $175,160.49, rounded to $175,000. That figure may need to be adjusted to the date of the delivery of judgment. 593 The fourth step requires an adjustment for contingencies. Mr Iapadre lists a number of contingencies, favourable and unfavourable, that should be taken into account and submits that an appropriate allowance for those contingencies should be no more than 25%. The contingencies listed by Mr Iapadre were: • Mr Iapadre may require more or less than the level of services that I have found that he will require; • lack of prognostic optimism for the PTSD (although that has been taken into account in the finding for the need for the services) and, on the other hand, the possibility of some improvement with treatment; • Mr Iapadre may require, later in life, paid services due to age and unrelated illness and medical conditions (and in fact it is quite possible that he would be receiving the paid services right up to his death); • worsening dysphagia. 594 I accept these are contingencies that the Court ought to take into account but add to this list the possibility that Mr Iapadre will continue to live with his mother for some years before her death or move into an aged care facility. 595 Taking all these matters into account, I consider that a deduction of 30% is appropriate. 596 Therefore, the appropriate award for future costs is $122,500. Medical expenses 597 The parties have agreed special damages in the sum of $20,821.52. I accept that this amount is properly payable. 598 Mr Iapadre has claimed a relatively modest $20,000 for future medical care. The basis for this claim is the ongoing treatment of his PTSD. Dr Giardini gave evidence that he would continue with his 4-6 weekly consultations with Mr Iapadre. Mr Iapadre submitted that the capitalised amount for these consultations was $19,298 (using the same actuarial multiplier of 638.6 and assuming 10 standard appointments costing $157.15 or a weekly amount of -- 124 of 127 -- [2026] SADC 86 121 $30.33). Mr Iapadre submitted that this amount should be reduced for contingencies (of 25%) to $15,000. 599 Dr Giardini said that he might also reattempt the EMDR treatment. He said that he would give consideration to admitting Mr Iapadre into a private hospital at the time of undertaking the EMDR. That admission could be 2-3 weeks at a cost of $1800-$2000 per night. He said that there would also be additional preparatory sessions. Mr Iapadre submitted that it was appropriate to allow 10 sessions at $327.45 or $3247.50 in total for the consultations together with $10,000 for the private in patient admission. Mr Iapadre submitted that there should be a deduction of 25% from this amount for the contingency that he does not have the treatment and therefore $10,000 should be allowed for this component of future treatment. 600 Mr Iapadre, also in a broadbrush approach, submitted there should be an allowance of $2000 for the swallowing disorder and $1000 for the irritable bowel syndrome. These amounts are reasonable and modest. 601 These amounts total $28,000. Mr Iapdapre accepts that there should be a further deduction of $3,000 for the possibility that the EMDR therapy will obviate the need for further consultations and by a further $5,000 for future medical treatment that was received as part of the settlement of the workers compensation claim that was brought by Mr Iapadre. 602 Serco submitted that damages for future medical treatment should be limited to $210 being the cost of two sessions of EMDR. It submitted that once all legal proceedings are completed, Mr Iapadre’s PTSD will resolve. In making that submission, Serco relied upon the following statement made by Dr Giaridini in relation to re-attempting EMDR. Dr Giardini said that prior to re-attempting EMDR: We’d need to see all litigation finalised, so there isn’t that background source of stress and triggering of his symptoms. Let the dust settle figuratively speaking and then look at reattempting trauma therapy…two treatment sessions can lead to dramatic improvement of symptomatology, sometimes people need four, six or more. 603 I do not consider this statement provides support for the proposition that Mr Iapadre’s PTSD will resolve once the litigation is finalised. Dr Giardini is saying that once the litigation is completed, then it is a good time to look at conducting the EMDR treatment again and that can lead to dramatic improvement in two sessions but he may need more. A little later in his evidence, Dr Giardini said that Mr Iapadre may probably need two to three weeks in hospital for the EMDR treatment and also would need more intense sessions closer to when the EMDR would be performed 604 Serco also placed reliance upon the report of Dr Moffatt dated 28 September 2020 (exhibit A52, p 23 of the report). However, the full passage of Dr Moffat’s report states “it is possible that he may experience some symptomatic -- 125 of 127 -- [2026] SADC 86 122 improvement with the aforementioned treatment suggestions and once all legal proceedings have been completed.” 605 Further, Serco relied upon the report of Dr Begg dated 17 December 2013 (exhibit A48, p 6 of the report). Dr Begg stated “significant embitterment renders recovery very slow. I expect he will recover after legal proceedings are resolved.” The fact that Dr Begg’s opinion was expressed 10 years ago and in the context of a workers compensation claim that had been brought by Mr Iapadre, means that little weight can be attached to that opinion for the purposes of determining Mr Iapadre’s future medical treatment as of 2024. Further, I accept the submission of Mr Iapadre that Dr Giardini, as the treating psychiatrist, is in the best position to determine Mr Ipadare’s future medical needs and the consequence of the finalisation of the ligation. 606 Having accepted Dr Giardini’s evidence in relation to the further treatment that is required, the next question is whether the allowance that has been made by Mr Iapadre for contingencies is appropriate. Mr Iapadre has allowed a contingency of about 25% for the possibility that he won’t have all of the further consultations. He has also allowed the same contingency of 25% for the possibility that Mr Iadpre will not have the EMDR treatment. A further contingency is applied on the basis that the EMDR treatment, if undertaken, will eliminate the need for further medical treatment. The amount of this contingency is unspecified, but as it assumes that the EMDR has taken place, along with some of the treatment, is around 15-20%. 607 I consider these contingencies to be reasonable. 608 I therefore propose to allow the future medical costs in the sum of $20,000. Interest 609 Pursuant to s 30 of the Act, Mr Iapadre is entitled to interest on damages that are payable for past economic loss. In his written closing submissions, Mr Iapadre submitted that it was appropriate to calculate interest following the delivery of judgment. The Court accepts that submission and therefore defers the calculation of interest to after judgment. Contributory negligence 610 Serco did not make any submissions in its closing address that Mr Iapadre was guilty of contributory negligence. Serco did not cross-examine Mr Iapadre on the matters by which contributory negligence might be established. Once negligence is established, the matters that are pleaded as particulars of contributory negligence would not be sufficient to establish contributory negligence. Mr Iapadre could not be said to have failed to take care for his own safety by not ensuring he had keys when it was Serco who was responsible for the keys and took the keys off him. It could not be negligent on his part to convey his distress while he was in the sterile zone during the lightning storm when in fact he made repeated requests to be able to leave the sterile zone. Mr Iapadre did not fail to protest the -- 126 of 127 -- [2026] SADC 86 123 instruction that he remain in the sterile zone when in fact he asked to be relieved from his duties in the sterile zone during the morning of 14 December 2010 and again during the lightning storm. Mr Iapadre did not leave the sterile zone when he had the ability to do so as he never had that opportunity. As the onset of PTSD was delayed and Mr Iapadre was unaware that he had PTSD, Mr Iapadre could not be found to be contributory negligent by not seeking medical assistance in a timely manner. Other pleas of contributory negligence relate to the claim under the WHA. 611 Serco did not attempt to prove how any of the alleged acts caused or exacerbated Mr Iapadre’s injuries. 612 It follows that the claim for contributory negligence is dismissed. Conclusion 613 The Court will hear the parties as to the amount of the judgment, including interest, which is to be calculated in accordance with these reasons as well as the issue of costs. 614 By way of summary, the Court has made the findings set out below. 615 The Court has found that Serco was negligent, and that negligence caused the PTSD that Mr Iapadre suffers from. Mr Iapadre is entitled to the following damages: General damages: $368,016. Past loss of earning capacity: $376,139. Past loss of superannuation: $46,677. Past gratuitous services that have been rendered: Nil. Future loss of earning capacity: Nil. Future loss of superannuation: Nil. Future services: $122,500.00. Past special damages: $20,821. Future special damages: $20,000. Deduction (offset) because of purchase of Henley Beach Road Property: Nil. 616 I will hear the parties as to costs, interest and the quantum and treatment of payments that were received under the workers compensation legislation in the Northern Territory, and any arithmetic, timing or taxation issues that arise from these reasons. -- 127 of 127 --