District Court of Singapore

Thiru Kumar a/l Thanamalai v Ng Khim Han Calvin
[2021] SGDC 47

Damages – Assessment – Expert evidence – Failure to call expert witness – Effect on admissibility of medical report

Damages – Measure of damages – Personal injuries cases

16 March 2021

Judgment reserved.

Deputy Registrar Hairul Hakkim:

Introduction

1 The plaintiff was involved in a road traffic accident (“the Accident”) on 25 May 2012, when the defendant’s motorcar collided into the rear of the plaintiff’s motorcycle at a road traffic junction along Jalan Ahmad Ibrahim, Singapore.

2 Interlocutory judgment in default of defence was entered against the defendant on 24 January 2015 with the issue of damages to be assessed and costs and interests to be reserved to the registrar hearing the assessment (“the AD Hearing”).

3 After I delivered my oral judgment following the AD Hearing, the defendant filed an appeal against my decision on 9 March 2021. I therefore pen these written grounds to provide my reasons for my decision.

Procedural history

4 I conducted the AD Hearing over four half-day tranches on 4 September 2019, 11 October 2019 and 6 February 2020 (hearing the plaintiff’s evidence) and on 7 December 2020 (hearing the plaintiff’s sole expert, Dr Tan Mak Yong (“Dr Tan”) from MY Orthopaedic Clinic). While the plaintiff had initially indicated that he had three expert witnesses as listed in DC/ORC 2640/2018 and the defendant had indicated to cross-examine all three experts, the plaintiff elected not to call two of these experts from National University Hospital (“NUH”), namely Dr Joel Louis Lim and Assistant Professor Gabriel Liu.

5 At this point, it is necessary to set out a brief chronology of events that preceded the plaintiff’s election not to call these two experts from NUH. After the completion of the plaintiff’s evidence at the third tranche, I convened a pre-trial conference (“PTC”) on 20 March 2020 to seek parties’ available dates for the examination of the three experts. However, counsel for the plaintiff was not ready to take the dates at that time and the PTC was then adjourned to 3 April 2020. At the adjourned PTC, the plaintiff’s counsel was still unable to take further AD dates and given the delay in the matter, I directed for a further tranche of the AD hearing to be fixed on 20 August 2020.

6 On 20 August 2020, the plaintiff’s counsel was likewise unable to proceed with the hearing because he was unsuccessful in securing the attendance of any of his experts due to the plaintiff’s alleged inability to pay the fees for their attendance. He accordingly requested for a final adjournment to get at least one of his expert doctors to attend for the AD Hearing. I granted this final adjournment in the interests of justice, coupled with an unless order, and with costs on an indemnity basis to be paid by the plaintiff to the defendant. The final tranche for the AD Hearing was eventually concluded on 7 December 2020 when Dr Tan gave his evidence as the sole expert witness for the plaintiff.

7 With the above background and before I deal with the plaintiff’s claim, I make some preliminary remarks on the parties’ conduct of their respective cases.

Preliminary remarks on the conduct of cases by parties

8 First, the plaintiff’s election not to call the two experts from NUH for cross-examination by the defendant had pertinent legal consequences. The legal effect of this election was that I was precluded from relying on the contents of their respective medical reports in arriving at my decision. These reports were, simply put, inadmissible hearsay evidence. If the plaintiff was still allowed to rely on the NUH medical reports at the AD Hearing to prove the severity of his injuries without allowing the defendant the opportunity to cross-examine these experts, the plaintiff would effectively be shielding these experts from cross-examination (see also Grant v The Queen [2006] UKPC 2; [2007] 1 AC 1 at [14]). That could not be right as the plaintiff would be seeking to rely on the truth of what was being said in these medical reports (see Saga Foodstuffs Manufacturing (Pte) Ltd v Best Food Pte Ltd [1994] 3 SLR(R) 1013 at [11]). I should also add at this juncture that the plaintiff’s counsel was made aware of this consequence on 20 August 2020 when I was prepared to proceed with the matter with closing submissions without reliance on any medical evidence.

9 Second and related to my first observation, insofar as Dr Tan had relied on the NUH medical reports in formulating his opinion on the plaintiff’s extent of his injuries, I disregarded this aspect of his opinion as these medical reports had not been admitted in evidence. In this regard, the “basis rule” for expert witnesses necessitated that the “factual basis for the expert’s opinion must itself be established on admissible evidence and not on hearsay” (per Sundaresh Menon CJ in Anita Damu v Public Prosecutor [2020] 3 SLR 825 at [30]). The same observation was eloquently expressed by Heydon J in Dasreef Pty Ltd v Hawchar [2011] HCA 21 at [90] (also cited in Anita Damu at [30]) as follows:

Opinion evidence is a bridge between data in the form of primary evidence and a conclusion which cannot be reached without the application of expertise. The bridge cannot stand if the primary evidence end of it does not exist. The expert opinion is then only a misleading jumble, uselessly cluttering up the evidentiary scene.

10 For clarity, I should state that insofar as Dr Tan’s medical opinions were based on his own physical examination conducted on the plaintiff on 18 March 2015 and/or the various reports of the magnetic resonance imaging (“MRIs”) conducted on the plaintiff, these were admissible in evidence.

11 My third preliminary observation stems from the defendant’s decision not to call any experts of his own (despite this not being a simplified trial but rather a District Court matter). As noted by the Court of Appeal in Saeng-Un Udom v Public Prosecutor [2001] 2 SLR(R) 1 at [26], quoting from the Halsbury’s Law of Singapore vol 10 (Butterworths, 2000) at para 120.257:

…The court should not, when confronted with expert evidence which is unopposed and appears not to be obviously lacking in defensibility, reject it nevertheless and prefer to draw its own inferences. While the court is not obliged to accept expert evidence by reason only that it is unchallenged, if the court finds that the evidence is based on sound grounds and supported by the basic facts, it can do little else than to accept the evidence. [emphasis in original omitted; emphasis added in italics]

12 More recently, the Court of Appeal reiterated the point in Armstrong, Carol Ann (executrix of the estate of Peter Traynor, deceased, and on behalf of the dependents of Peter Traynor, deceased) v Quest Laboratories Pte Ltd and another and other appeals [2020] 1 SLR 133 (“Armstrong”) at [90]:

…

As this court had observed in Saeng-Un Udom, a court is not bound to accept an expert’s opinion merely because it is uncontroverted. However, a court may find that it should accept uncontroverted expert evidence if the opinion was grounded on a sound basis. Hence, it appears to us that the question of whether to accept or reject an expert’s evidence is ultimately not a question of whether and how the evidence is controverted, but whether any eventual view arrived at is supportable in logic and evidence. The court’s determination as to whether it should accept parts of an expert’s evidence (and if so which parts) is guided by considerations of consistency, logic and coherence (see Sakthivel Punithavathi v PP [2007] 2 SLR(R) 983 at [75]–[76]). This requires a scrutiny of the expert’s methodology and the objective facts he had based his opinion upon (see the High Court decision of PP v Choo Peng Kuen [2018] SGHC 230 at [64]). [emphasis in original]

13 With these preliminary remarks in mind, I turn now to deal with the plaintiff’s claims.

Plaintiff’s claims

14 The plaintiff claimed to have suffered the following injuries to his back arising from the Accident:

(a) intervertebral disc disease at L3/4 and L4/5;

(b) prolapsed intervertebral disc left L5/S1;

(c) loss of lumbar lordosis;

(d) posterior annular tear at L4/L5 vertebrae;

(e) diffuse bulging with superimposed protrusion; and

(f) radicular pain due to impingement of nerve.

15 Arising from the above, the plaintiff claimed the following damages:

(a) General damages:

(i) Pain and suffering for back injury: $20,000;

(ii) Future medical expenses: $45,000;

(iii) Loss of future earnings: $30,000;

(b) Special damages:

(i) Medical expenses: $1,101.04;

(ii) Transport expenses: $300; and

(iii) Pre-trial loss of earnings: $6,000.

16 I turn now to deal with each of his claims in turn.

General damages

Pain and suffering for back injury

17 For the pain and suffering for the injury to his back, the plaintiff submitted for $20,000. The defendant submitted that no award should be made for this injury and in the alternative that a sum of $2,000 would be reasonable compensation.^{[note: 1]} In this regard, I took reference from Charlene Chee et al, Guidelines for the Assessment of General Damages in Personal Injury Cases (Academy Publishing, 2010) (“the Guidelines”), and reproduce the extracts of the relevant ranges below (at pp 23–24):

Description (Severity of Injury)	Range of awards
(b) Moderate … (ii) Cases in this category include severe strain of the back ligaments and/or muscles giving rise to backaches, soft tissue injuries resulting in exacerbation of existing back condition or prolapsed discs and/or permanent or chronic disability. However, the injured person is able to cope with the activities of daily life although he may have some difficulty performing his job at the pre-trauma capacity especially if it is a labour-intensive job although substantial recovery in the long term can be achieved.	$10,000 to $17,000
(c) Minor Strains, sprains, disc prolapses, soft tissue injuries with full recovery: (i) within about five years An award in the higher range is appropriate where there is an increased vulnerability to future trauma due to the weakened lumbar spine. (ii) within about two years	$2,000 to $10,000 $2,000 or less

18 I turn now to consider Dr Tan’s opinion. Here, I first note that several of the questions that were asked of Dr Tan during his cross-examination related to Prof Liu’s diagnosis of the plaintiff’s condition. To be clear, as prefaced above at [9], I disregarded Dr Tan’s answers on the same. This was especially since the best person to testify and clarify as to what Prof Liu had found in his examination would be Prof Liu himself, who was however not called to give evidence at the AD Hearing. In my assessment, I therefore focused exclusively on Dr Tan’s opinion to assess the severity of the plaintiff’s back injuries.

19 On this point, the defendant argued that no award should be made because Dr Tan’s opinion was given under the mistaken basis that the plaintiff had been “flung off his motorbike” upon impact. The plaintiff had clarified during his cross-examination that he was not flung off from his motorbike but rather his body had moved forward upon impact.^{[note: 2]} While it was true that Dr Tan had referred to the plaintiff having “flung off his motorbike” in his specialist medical report,^{[note: 3]} I found, as suggested by the plaintiff during cross-examination,^{[note: 4]} that this reference in Dr Tan’s medical report likely arose out of miscommunication. This was likely as both the plaintiff and Dr Tan confirmed that the plaintiff’s command of English was not very good^{[note: 5]} and the same was also apparent to me when I presided over the AD Hearing.

20 Further, the material question was whether the change in mechanism as now described by the plaintiff would alter Dr Tan’s medical opinion on the injuries. In this regard, Dr Tan was very clear in his evidence as follows:^{[note: 6]}

Q: So, it was sustained by flying off?

A: Yes, according to the patient. I have stated in the earlier part, if you got a pre-existing degenerated disc, even if he was not flung off the motorbike, even if he was just rear-ended and he just had a flexion injury, he could have gotten this extrusion – his disc is already not in its best form – so a minor injury could have caused this already. So even a minor injury like a whiplash-like injury without the plaintiff flying off, can cause it.

…

Q: Refer to para 2 of the Opinion, you arrived at this based on what you have been told of the [p]laintiff being flung off the motorbike and fallen?

A: No.

…

Q: I put to you that what you have stated at the second para of the initial pain and stiffness is based on the [p]laintiff having flung off the motorbike and fallen?

A: I disagree.

[emphasis added]

21 Subsequently, during re-examination, Dr Tan also clarified his opinion as follows:^{[note: 7]}

PC:	DC suggested that your answers on the slight impact causing injury was speculation. Is this speculation or medical opinion?
A:	This pathological diagnosis that I made came from the medical report put up by Prof Liu where he says that the patient has pain and sciatica reported only after the accident. His findings of the weakness of the big toe on the left and MRI findings of extruded L5/S1 disc on the left ties up nicely with S1 radiculopathy as well as my clinical findings 3 years later of no more sciatica or rather occasional sciatica, the extrusion healed up to become a protrusion. Whether the plaintiff flung off or otherwise, the pathological finding I made is supported clinically and radiologically as well as the expected progression of this disease in 3 years. This pathological diagnosis I made, especially in a patient with degenerated disc, can come off with a minor impact. If he flung off, he would definitely get it. But even a cough can cause it in a patient with degenerated disc. Not to mention a patient with impact. This patient having flown off I could be wrong. This patient can’t really converse with me.
[emphasis added]

22 Dr Tan had therefore unequivocally stated that the mechanism of the injury need not be as serious as flying off a motorbike to cause the extrusion of the disc at the L5/S1 level. While I was aware that Dr Tan had additionally referred to the inadmissible report by Prof Liu in his answers above, I nevertheless found that there was a “sound basis” (see Armstrong at [90]) for his opinion, which was independent from Prof Liu’s report. In particular, there were other objective bases for his opinion such as the MRI done on 16 July 2012 (which disclosed that the plaintiff had sustained a left paracentral extrusion at the L5/S1 level),^{[note: 8]} and his own clinical examination of the plaintiff three years later, which revealed that the extrusion had now healed to become a protrusion. There was no contrary medical evidence adduced by the defendant to cast any doubt on these findings, whether by way of medical re-examination or otherwise.

23 Likewise, I accepted the opinion of Dr Tan that the Accident had accelerated the plaintiff’s disc degeneration disease. In this regard, Dr Tan had stated as follows:^{[note: 9]}

Q: I take it that you compared the MRI findings of Dr Liu with that of yours. If there was no accident at all, is it possible that these MRIs revealed a natural progression of the disc degeneration disease?

A: If the MRI done in 2015, was not 3 years but 10 years down the road from the accident, yes, I would agree. At 3 years, it shows accelerated degeneration. This kind of finding at 3 years should have been a 10-year finding if there was no injury with normal degeneration. For 3 years, it is too fast.

Q: Looking at these two reports, taking the road traffic accident out of the [picture], would you agree that the reports suggest degeneration?

A: As I said, the timing is too short. 3 years is too short. I would go back and ask the patient whether he is sure he had no injury. This is just too much degeneration in 3 years.

[emphasis added]

Dr Tan’s medical opinion on the acceleration of the plaintiff’s disc degeneration disease was supported with logical reasons and his medical expertise on the usual progression of the disease. There was therefore clearly again a “sound basis” (see Armstrong at [90]) for Dr Tan’s conclusion and I had no reason to disagree with his medical opinion.

24 It followed from my analysis of the evidence above that the plaintiff’s injuries fell within the description of moderate back injuries as described in the Guidelines. In my judgment, the lower end of the Guidelines was appropriate here on account of the reasons cited by the defendant.^{[note: 10]} Further, I took into account the plaintiff’s admission that he had not undergone any physiotherapy for his back as recommended by Dr Tan.^{[note: 11]} In the circumstances, I was prepared to draw the inference that it was probable that his condition could have gotten better if he had done so. Last but not least, there was no other evidence of the severity of the initial back injuries faced by the plaintiff (given the plaintiff’s election to not call the two NUH doctors, who were the initial doctors treating the plaintiff, for the AD Hearing).

25 As for the precedent of Liu Yi Yong v Corporated Builders (DC Suit No 2008 of 2008) (“Liu Yi Yong”) cited by the defendant,^{[note: 12]} this could be distinguished because there was contrary medical evidence in that case as to whether the plaintiff’s back injury had aggravated his disc degenerative disease. In the case before me however, there was only one medical expert’s evidence that had been admitted in evidence and whose opinion I had accepted (see [23] above). The evidence in Liu Yi Yong also revealed that the plaintiff had worked for 23 days after the accident and had even worked overtime. Such facts were not present in the case before me.

26 For the above reasons, I assessed the plaintiff’s pain and suffering at the lower end of the Guidelines at $11,000 (providing an uplift from $10,000 as the cases referenced in the Guidelines for the range were decided in 2005 or earlier).

Loss of future earnings / Loss of earning capacity

27 I turn now to the second head of general damages for the loss of future earnings and/or loss of earning capacity. Here, this aspect of general damages was not expressly pleaded by the plaintiff in his statement of claim.

28 In addition to the claim not being pleaded, I was not satisfied that the legal requirements for granting such an award has been proven by the plaintiff on a balance of probabilities.

29 The general principles for granting loss of future earnings are not controversial and have been succinctly stated by the Court of Appeal in Teo Sing Keng and another v Sim Ban Kiat [1994] 1 SLR(R) 340 (at [38], citing the dictum in Ong Ah Long v Dr S Underwood [1983] 2 MLJ 324 at 333) as follows:

Now, the general principle is that an injured plaintiff is entitled to damages for the loss of earnings and profits which he has suffered by reason of his injuries up to the date of the trial and for the loss of the prospective earnings and profits of which he is likely to be deprived in the future. There must be evidence on which the court can find that the plaintiff will suffer future loss of earnings, it cannot act on mere speculation. … [emphasis added]

30 In a similar vein, the Court of Appeal held in Chai Kang Wei Samuel v Shaw Linda Gillian [2010] 3 SLR 587 (“Linda Shaw”) that (at [19]):

…[A] plaintiff has the burden of proving his or her claim in damages… [L]oss of future earnings must be ‘real assessable loss proved by evidence’… Therefore, if a plaintiff should fail to provide sufficient evidence of loss of future earnings, his or her claim for loss of future earnings cannot succeed. [emphasis added]

31 The above authorities make clear that sufficient evidence of “real assessable loss” is required for a plaintiff to succeed in his or her claim for loss of future earnings.

32 As for loss of earning capacity, for a plaintiff that is currently employed, an award for loss of earning capacity can only be made where there is: (a) a substantial or real risk that the plaintiff could lose his or her present job at some time before the estimated end of his or her working life; and (b) evidence that he or she will, because of the injuries, be at a risk or disadvantage in securing an equivalent job in the open employment market (Linda Shaw at [20] and [36]). This is a cumulative test.

33 In my judgment, the plaintiff was unable to prove on a balance of probabilities that he had suffered a loss of earnings after the Accident and/or that there is any substantial or real risk that he could lose his present job at some time before the estimated end of his working life for the following reasons:

(a) It was not disputed by the plaintiff that he was unemployed during the material time of the Accident.^{[note: 13]}

(b) During the material time of the Accident, the plaintiff was recovering from an unrelated previous injury that took place on 30 September 2011.^{[note: 14]} Even after his medical leave in respect of that accident had expired in or around 31 December 2011, he was still unable to find a job until the date of the Accident on 25 May 2012. This was a period of five months before the Accident when the plaintiff was unemployed. I therefore found that it was likely that even without the Accident, the plaintiff might not have been able to secure an equivalent employment as he had with his former employer, Lenn International Pte Ltd (“Lenn International”).

(c) While I noted the evidence that he was drawing an average salary of $3,000 a month (including overtime) with his former employer, Lenn International, the plaintiff did not adduce any evidence of his income tax or CPF statements to prove the aggregate total income he was earning both before and after the Accident. As such, even if the point made in the preceding sub-paragraph could be overlooked, there was in any event no sufficient evidence of any real assessable loss before me.

(d) As for Dr Tan’s medical opinion that the plaintiff would have difficulty engaging in jobs which required him to carry heavy loads as a result of the Accident, I was not prepared to accept this evidence on account of the long history of other medical conditions that the plaintiff suffers from or had suffered from. The history has been well summarised by the defendant in his closing submissions.^{[note: 15]} The plaintiff had not been forthcoming in disclosing the medical reports from these other injuries and I was therefore unable to conclude whether any of his present disabilities arise from the Accident or from some other cause.

(e) Last but not least, I noted that the plaintiff has been gainfully employed as a forklift operator from 12 March 2015 up to the date of the first tranche of the AD Hearing.^{[note: 16]} This was a period exceeding four years where there was no break in employment. No evidence was also adduced by the plaintiff from his present employer as to any difficulties that he encounters with his present job.

34 For the above reasons, I declined to make any award for either loss of future earnings or loss of earning capacity in this case.

Future medical expenses

35 I turn now to the claim for future medical expenses. As stated in the Practitioners’ Library – Assessment of Damages: Personal Injuries and Fatal Accidents (LexisNexis, 3rd Ed, 2017), the courts must generally be satisfied that future expenses will be incurred before granting them. Hence, the courts are likely to require proof that such treatments are indeed necessary in the future.

36 On this claim, Dr Tan’s medical opinion was that the plaintiff may require two types of surgeries in the future: disc discectomy and lumbar spinal fusion. Notwithstanding his opinion, I was not convinced that the plaintiff should be allowed this head of claim for the following reasons:

(a) Surgical intervention had been offered to the plaintiff as early as 2012 but he had expressly declined it. I reproduce below the plaintiff’s response when questioned on this aspect of his claim during cross-examination:^{[note: 17]}

Q: The doctor said that you had not gone for surgical intervention – is this because the pain is intermittent?

A: I wanted to do surgery but the doctor told me that if surgery is done, there is no 100% success – there could be risks of paralysis – my parents were worried and told me not to go for the surgery.

Q: From 2012 to 2019, you still have not done any surgery for the back?

A: Yes.

(b) Even after Dr Tan had made a similar recommendation in 2015, the plaintiff had still not elected for surgery to date. Here, the plaintiff’s answers to questions posed during cross-examination were highly telling that future surgical intervention may not be necessary for the plaintiff:^{[note: 18]}

Q: Earlier on you said that when [Prof] Liu had recommended surgery, you declined it because you were afraid of paralysis. Do you still have that worry?

A: Of course. I am mobile now. If I become paralysed, it would be worse. I am the sole breadwinner.

Q: If I am the doctor and advise you to go for surgery, would you go for it?

A: I will refuse until it becomes unbearable.

Q: But it has not become worse?

A: It is on-and-off – I am using a belt support until now.

[emphasis added]

The plaintiff’s answers above must also be appreciated in light of the various other surgeries he had agreed to undergo before the Accident for his other injuries.^{[note: 19]} However, for this particular injury, he had declined surgery for about eight years since the Accident. In the circumstances, I was driven to conclude that any future surgical intervention was not necessary for the plaintiff.

(c) As for the need for conservative treatment, given the plaintiff’s testimony that he had never seen a physiotherapy for his back and the fact that he had no evidence to support his claim for regular medication,^{[note: 20]} I likewise concluded that the costs of such treatment cannot be awarded.

37 I turn now to the special damages claimed by the plaintiff.

Special damages

Pre-trial loss of earnings

38 For the pre-trial loss of earnings claim, I agreed with the defendant that no award should be made because the plaintiff failed to prove that he had suffered from such a loss. It is plain that special damages have to be proven by way of “strict proof of actual loss” in order to be recoverable (see Yap Boon Fong Yvonne v Wong Kok Mun Alvin and another and another appeal [2019] 1 SLR 230 at [31] and [42], citing Wee Sia Tian v Long Thik Boon [1996] 2 SLR(R) 420 at [15]–[16]). As highlighted above at [33(a)], the plaintiff was unemployed during the time of the Accident for about five months – against that backdrop, there was clearly no proof of any actual loss and it was also nigh impossible for me to find that the plaintiff would have been employed but for the Accident during the period of medical leave.

Medical expenses

39 For medical expenses, the defendant submitted that no award should be made because the plaintiff did not aver to such a claim in his affidavit of evidence-in-chief (“AEIC”) or reference the same in his opening statement. When this issue was raised during the AD Hearing, the parties were content to leave the issue to submissions.

40 In my judgment, even though the AEIC did not expressly state that the plaintiff was making a claim for medical expenses, the plaintiff had included the relevant medical invoices in his AEIC. The same had also been pleaded.

41 Nevertheless, out of fairness to the defendant who did not cross-examine the plaintiff on the issue of medical expenses due to the claim for medical expenses not being expressly averred in the AEIC, I only awarded the medical expenses as initially agreed by the defendant in his opening statement for the total sum of $1084.80.

Transport expenses

42 For the transport expenses, I was made aware that no receipts were retained by the plaintiff. Notwithstanding that, based on the High Court decision of Tan Hun Boon v Rui Feng Travel Pte Ltd and another [2018] 3 SLR 244 where the High Court adopted a conservative estimate of $20 per round trip in the absence of any documentary evidence (at [147]), and the undisputed evidence that the plaintiff made no less than 15 unique trips to hospitals and clinics following the Accident, the sum claimed by the plaintiff of $300 was more than reasonable and I accordingly awarded the same.

Conclusion

43 For the above reasons, I assessed the general damages at $11,000 and special damages at $1384.80.

44 After having heard parties on the issue of interest, I ordered that a period of four years should be excluded from the computation of the usual interest on account of protracted delays in the prosecution of the case by the plaintiff, particularly between 10 December 2013 (when the claim was first filed) to 24 January 2015 (when the interlocutory judgment in default of defence was entered into) and from 31 January 2015 (when the first summons for directions was filed) to 7 August 2018 (when the Notice of Appointment for the AD Hearing was filed).

45 On the issue of costs, based on the defendant’s submission that $13,000 for costs was reasonable for the work done on the matter, I fixed the costs of the matter at $13,000 with the quantum of reasonable disbursements to be either agreed or taxed.[Context] [Hide Context]

^{[note: 1]}Defendant’s closing submissions (“DCS”), para 59.

^{[note: 2]}NE, Day 1, pp 29–30.

^{[note: 3]}BA, p 37.

^{[note: 4]}NE, Day 1, p 31A.

^{[note: 5]}NE, Day 1, p 31B and NE, Day 4, p 15E.

^{[note: 6]}NE, Day 4, pp 23–24.

^{[note: 7]}NE, Day 4, p 33.

^{[note: 8]}BA, p 41.

^{[note: 9]}NE, Day 4, pp 21–22.

^{[note: 10]}DCS, para 60.

^{[note: 11]}NE, Day 2, p 25E.

^{[note: 12]}DCS, para 137.

^{[note: 13]}BA, p 5, para 13 and NE, Day 1, p 22

^{[note: 14]}BA, p 5, para 12.

^{[note: 15]}DCS, paras 62–71.

^{[note: 16]}NE, Day 1, p 25.

^{[note: 17]}NE, Day 2, pp 16–17.

^{[note: 18]}NE, Day 2, pp 24–25.

^{[note: 19]}NE, Day 1, pp 9–10.

^{[note: 20]}NE, Day 2, p 26.