Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v The Workers Compensation Nominal Insurer - [2018] NSWCA 146 - NSWCA 2018 case summary — Zoe

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Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v The Workers Compensation Nominal Insurer

[2018] NSWCA 146

Court of Appeal (NSW)|2018-02-23|Before: McColl JA, Payne JA, White JA

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2018-02-23

Before

McColl JA, Payne JA, White JA

Catchwords

TORTS - negligence - employer - whether formulation of risk of harm impermissibly narrow - whether breach of duty of care - whether employer should have appreciated risk of harm

Source

Original judgment source is linked above.

Catchwords

TORTS - negligence - employer - whether formulation of risk of harm impermissibly narrow - whether breach of duty of care - whether employer should have appreciated risk of harm

Judgment (34 paragraphs)

[1]

Background

In January 2006, the appellant, Avopiling Pty Ltd (("Avopiling"), entered into an agreement with the NSW Department of Education & Training to undertake works at a school site in Cringila, NSW ("the Cringila site").
On 22 September 2006, Mr Bosevski was injured at the Cringila site while working as a labourer employed by Professional Contracting Pty Ltd ("Professional Contracting").
The primary judge recorded that the cause of the accident was not in issue: at [4]. Two Avopiling employees were erecting a mast on a pile driving rig on the oval at the Cringila site. A primary and an auxiliary cable were attached to the mast. The auxiliary cable snapped during the erection of the mast. The snapping occurred under extreme tension. This tension was caused by metal objects at the end of the auxiliary cable being pulled into the sheave in the "cathead" at the top of the mast. Some metal objects were too large to go through the opening. The snapping of the auxiliary cable caused various metal objects, being a bobweight, thumb eye, hook, chainlegs and various links, weighing in total approximately 25 kilograms, to be released from the "cathead" and fall to the ground. Mr Bosevski was struck by one, some or all of the metal objects on the head, neck and chest. The primary judge found that at the time he was struck, Mr Bosevski was standing more than six metres away from the pile driving rig: at [282].
On 26 November 2009, Mr Bosevski commenced proceedings in negligence seeking damages from Avopiling in relation to the injuries suffered on 22 September 2006 ("the negligence proceedings"). Mr Bosevski did not sue his employer, Professional Contracting. The reasons why the Workers Compensation Nominal Insurer rather than Professional Contracting was a party to the litigation were not before this Court, although it may be inferred that at some time before or during the litigation Professional Contracting became insolvent.

[2]

Primary Judgment

On the issue of negligence by Avopiling, the primary judge found that there was a risk of harm, namely, the risk of tensile failure in the cables involved in the erection of a mast on the pile driving rig, or the risk of explosive failure arising from tension in the cables involved in the erection of a mast on the pile driving rig. These risks were not insignificant for the purposes of s 5B(1)(b) of the Civil Liability Act. Accordingly, it was foreseeable that the auxiliary hoist cable could snap when employees of Avopiling were erecting a mast on the pile driving rig.
Applying the considerations in s 5B(2) of the Civil Liability Act, the primary judge found that a reasonable person in the position of Avopiling would have ensured sufficient slack in the auxiliary cable prior to or during the course of erecting the mast of the pile driving rig and also continuously observed the cables. Further, the likely seriousness of the harm was found to be extreme, while the burden of taking the identified precautions was minimal. His Honour therefore found that in failing to take such precautions Avopiling, through its employees, was negligent. No challenge was made to these findings on appeal.
On the issue of contributory negligence, Avopiling alleged that Mr Bosevski was guilty of contributory negligence essentially because: he failed to avoid the area where the pile driving rig was being erected; he stood in the vicinity of the pile driving rig when it was being erected; and, he failed to stand a safe distance away from the pile driving rig whilst it was being erected.
His Honour found that Mr Bosevski was not negligent by being in the area and in standing in the vicinity of the pile driving rig during its erection. His Honour found, based on evidence including photographs of the objects thrown from the pile driver, that it was more probable than not that Mr Bosevski was more than six metres away from the pile driving rig when injured. His Honour found that Mr Bosevski and his supervisor were in the vicinity of the pile driving rig because they were constructing a concrete pad, and that the two employees of Avopiling who were erecting the mast of the pile driving rig were aware of their presence. The presence of Mr Bosevski and his supervisor in the vicinity of the pile driver did not exceed their functions on the work site because one of their functions was to assist the pile driving rig operators generally. After being told by one of the operators that their assistance was not needed, it was more probable than not, his Honour found, that Mr Bosevski was departing the scene when he was injured. It followed, his Honour concluded, that Mr Bosevski's presence in the vicinity of the pile driver was appropriate and reasonable and he acted reasonably in moving from the pile driver when his assistance was not needed. Accordingly, contributory negligence was not established under ss 5R and 5S of the Civil Liability Act.
In making this finding his Honour drew a Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 inference from the failure of Avopiling to call either of the pile driving rig operators to give evidence.
His Honour rejected claims made by Avopiling that a person in Mr Bosevski's position ought to have known of the dangers associated with the erection of the mast. The site induction given to Mr Bosevski did not identify such dangers.
On the issue of negligence by the employer, it will be recalled that the pleaded case against Professional Contracting was limited to an allegation that "[Avopiling] repeats and relies upon the particulars of negligence alleged in the Amended Statement of Claim". The claim essentially advanced by Avopiling at the trial was that Professional Contracting knew or ought to have known of the dangers of erecting the mast on the pile driving rig and was negligent by permitting Mr Bosevski to approach the pile driving rig whilst it was being erected. The primary judge found that Professional Contracting was not in a position to know of the risk of danger for the purposes of negligence. Applying Shoalhaven City Council v Humphries [2013] NSWCA 390 at [127]-[131], his Honour found that Professional Contracting could not have foreseen an accident of such magnitude in relation to the erection of the mast.
In relation to damages, his Honour's findings were based on the significant injuries he found were suffered by Mr Bosevski to his head, neck, lower back, jaw and teeth. In particular, the primary judge accepted that Mr Bosevski suffered a severe traumatic brain injury, multiple fractures in the frontal regions of the skull and post traumatic amnesia: at [325]. The traumatic brain injury caused permanent cognitive and personality changes, including adjustment mood disorder. The primary judge accepted the expert psychiatrists' agreed opinion that as a consequence of his permanent impairments Mr Bosevski was "unlikely to have any earning capacity": at [331]. The primary judge found that Mr Bosevski was, as a result of his injuries, "for practical purposes, unemployable": at [354].
Mr Bosevski was 45 years of age at the date of the accident and would have continued to work in his current position until aged 62. Thereafter, until the age of 67, Mr Bosevski would have worked in a position which was calculated on the basis of the earnings of a taxi driver (which, ironically, was an occupation suggested by Avopiling in cross-examination of Mr Bosevski as being available to him at the time of trial). Mr Bosevski's life expectancy was identified as 76 years and six months. It was common ground on the appeal that this was an error and that Mr Bosevski's agreed life expectancy is 85.6 years. The reasons for that error were explained in Bosevski v Avopiling Pty Ltd; The Workers Compensation Nominal Insurer v Avopiling Pty Ltd (No 2) [2018] NSWSC 205 at [3]-[5], [23].
Mr Bosevski's past economic loss was calculated on the basis of various identified amounts totalling $402,206.84 net, after tax.
Mr Bosevski was awarded an amount of $33,261.60 to compensate for the refund of gross workers compensation payments upon which tax had been paid: Fox v Wood (1981) 148 CLR 438; [1981] HCA 41.
In relation to loss of future earning capacity, Mr Bosevski was awarded $306,409.09, including a 15 per cent reduction for vicissitudes.
In the primary judgment, Mr Bosevski was awarded $163,317 for out-of-pocket expenses, although the schedule of damages from 3 May 2017 on which the ultimate award of damages was based (which is substantially reproduced in table format below at [83]) records out-of-pocket expenses as $181,358.51. This discrepancy was not the subject of any argument on appeal either orally or in written submissions, although it may reflect further such expenses being incurred by Mr Bosevski during the period judgment was reserved.
Compensation was awarded for the loss of superannuation at a rate of 11 per cent on past economic loss, amounting to $44,682.75, and 12 per cent on future economic loss, amounting to $36,769.09, for a total of $81,451.84.
In relation to future medical expenses, the primary judge made a total allowance of $138,380.70 comprised of the following. Mr Bosevski was awarded a sum of $87,810.59 for medication and visits to pain specialists, neurologists, general practitioners and psychiatrists. Mr Bosevski has a nerve stimulator device and the primary judge accepted evidence that the device ameliorates the pain suffered by Mr Bosevski, and allowed $31,570.11 for the ongoing maintenance, programming, removal and periodic replacement of the device. Finally, the primary judge made allowances of $9,000 for future travel to doctors, investigations and therapy including physiotherapy, hydrotherapy, rehabilitation and massage and $10,000 for future dental treatment.
An allowance was made for past gratuitous domestic and attendant care and future domestic services and attendant care. For past gratuitous domestic care the primary judge made an allowance of $294,403.20. For future domestic services and attendant care the primary judge made an allowance of $778,254.75 using a commercial hourly rate of $45.50. In making these allowances his Honour accepted evidence from an occupational therapist, Ms Kennedy-Gould, who estimated that an initial period of four hours per day of past gratuitous care was appropriate until 10 April 2007 and thereafter and into the future three hours care per day was appropriate. Dr Jungfer, a psychiatrist from whom evidence was also adduced, concurred in those opinions. The evidence of Ms Kennedy-Gould was not contested nor the subject of cross-examination.
His Honour allowed a claim for the expenses of lawn mowing and gardening on average at one hour per week at the rate of $45.00 per hour during Mr Bosevski's life expectancy and, likewise, handyman assistance on average at 24 hours per annum or 0.46 hours per week at the rate of $70 per hour for the whole of Mr Bosevski's life expectancy. The total sum allowed for these services was $62,879.40.
The total award of damages was $2,615,605.93. With the addition of interest in the sum of $16,785 calculated pursuant to s 18 of the Civil Liability Act, the sum awarded was $2,632,390.93.

[6]

Ground 2 - consideration

Whilst under s 5B of the Civil Liability Act it is necessary, just as it was under the pre-existing general law, to identify the relevant "risk of harm" (see Port Macquarie Hastings Council v Mooney at [52]) at the outset it is necessary to frame the issues in this case by application of the correct legal test. It was common ground that the Civil Liability Act applied to Avopiling's claim that Mr Bosevski was guilty of contributory negligence pursuant to ss 5S-5T of the Civil Liability Act. However, as Avopiling ultimately accepted in its reply submissions, the question of Professional Contracting's negligence was governed by common law principles and not the Civil Liability Act because of the operation of s 151E(1) of the Workers Compensation Act and s 3B(1)(f) of the Civil Liability Act: see South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8 at [115], (Basten JA, Macfarlan and Simpson JJA agreeing).
Section 151E(1) of the Workers Compensation Act provides: "151E Application - modified common law damages (1) This Division applies to an award of damages in respect of: (a) an injury to a worker… being an injury caused by the negligence or other tort of the worker's employer."
Section 3B(1)(f) of the Civil Liability Act provides: "3B - Civil liability excluded from Act (1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows: … (f) civil liability relating to an award to which Division 3 of Part 5 of the Workers Compensation Act 1987 applies - the whole Act…"
This complaint by Avopiling faces a problem at the outset. The primary judge's formulation of the risk of harm was the same for Mr Bosevski's claim of negligence against Avopiling, Avopiling's contributory negligence claim against Mr Bosevski and Avopiling's claim in its defence in the negligence proceedings when seeking a reduction of any damages by reason of s 151Z(2) of the Workers Compensation Act that Professional Contracting was negligent. Avopiling does not challenge the primary judge's formulation of the risk of harm in relation to its own negligence. Avopiling's acceptance of the way the primary judge formulated the risk of harm in the case against it directs attention to the way the matter was presented to the primary judge in the claims made by Avopiling in its defence that Professional Contracting was negligent and Mr Bosevski was guilty of contributory negligence.
Avopiling bore the onus of proof, including the identification of the correct risk of harm, to establish negligence in relation to Professional Contracting and against Mr Bosevski for his alleged contributory negligence. The party in default who has failed to frame the pleadings by specific reference to relevant provisions of the Civil Liability Act (as explained in Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 at [22] per Meagher JA) is here Avopiling.
The risk of harm Avopiling now seeks to rely upon was not pleaded by it in its defences (to either the negligence or the indemnity claims) or its first amended cross-claim. It will be recalled that in relation to the allegation in its defence that Professional Contracting was negligent, Avopiling merely repeated and relied upon the particulars of negligence alleged by Mr Bosevski in the amended statement of claim. The pleading in the defence of contributory negligence against Mr Bosevski did not identify any alleged risk of harm. The consequence of the application of the principles of specific pleading of the risk of harm relied upon by Avopiling is that ground 2 would be dismissed for that reason alone.
In any event, the primary judge's formulation of the risk of harm was not in error. It identified the "true source of potential injury" (Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [60]) and the "general causal mechanism of the injury sustained" (Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90 at [98]).
Neither of Avopiling's alternative risk formulations allowed for the proper identification of the likelihood of the risk eventuating nor the reasonableness of precautions that might be taken against it because the formulations did not indicate the mechanism by which objects might fall or be flung. To identify the "true source of potential injury" the court must determine the mechanism by which an object might become detached rather than, as Avopiling has formulated the risk of harm, an undefined course of an unexpected hazard falling without identification of a mechanism.
It has not been demonstrated that his Honour erred in identifying the risk of harm. There is no challenge to his identification of the risk of harm in his Honour's finding that Avopiling was negligent. The attempt to establish a different risk of harm for the claim of negligence in relation to Professional Contracting and the contributory negligence claim against Mr Bosevski fails.
Ground 2 should be rejected.

[8]

Grounds 1 and 5 - consideration

The starting point for consideration of these grounds of appeal is the primary judge's unchallenged finding of negligence by Avopiling. That finding had at its heart negligent acts committed by Avopiling's employees in the erection of the mast and the failure to investigate tension noises during that process. Avopiling did not challenge the finding of the primary judge (at [263]) that "…the operators of the [pile driving rig], who were involved in its erection, were trained or instructed to ensure that only those who were involved in the work directly were to be in the area".
On this question of whether Mr Bosevski was a person "involved in the work directly", the statement given by Mr Edwards, one of the pile driving rig operators, was significant. In his statement to WorkCover he said that: "Anybody who has nothing to do with assembling the machine must stay well away. Chris [the name used by Mr Edwards for Mr Bosevski] and Lou were down there because we needed a pad. They were down there instructing their excavator on the pad they needed to build inside the yard. Safe enough for the rig to walk inside the yard safely."
Mr Edwards was not called to give evidence at the trial. His statement, which was admitted in evidence at the trial, supports the finding of the primary judge that Mr Bosevski and his supervisor were acting within the scope of their duties by approaching the pile driving rig and enquiring whether their assistance was necessary. Although the evidence on this was sparse, and a good deal of it confusing (particularly regarding whether the concrete pad referred to by Mr Edwards was one required to be built for the pile driving rig on the oval where the mast was being erected or in the yard some distance away), Avopiling, through Mr Edwards, in this passage identified a proper purpose connected with their employment for Mr Bosevski and his supervisor to be present at the site of the assembly of the pile driving rig, namely because "we needed a pad".
Even on appeal there was confusion about whether the concrete pad required to be built for the pile driving rig was to be constructed on the oval where the mast was being erected or in the yard some distance away. Senior counsel for Avopiling first submitted that it was the excavator and not the mast and drill which needed a concrete pad to be built. That was clarified as being a submission that another machine required a pad, which was to be built inside the yard and not on the oval where the mast was being erected. It was explained that the mast, once erected, would be used to start drilling from the oval, it being impossible to return to the yard due to overhead wires. The other machine would be brought on to the oval for this purpose. The question of whether a concrete pad was also required to drill from the oval was taken on notice over an adjournment. After the adjournment senior counsel for Avopiling submitted that the evidence was unclear as to whether drilling was planned to take place on the oval or in the yard, and thus where the concrete pad was to be built.
Any confusion in the evidence about where the pad was to be constructed does not assist Avopiling, which bore the onus of proving Professional Contracting's negligence for the purposes of its s 151Z(2) claim.
The allegation that Professional Contracting was negligent also needs to be understood in light of the primary judge's unchallenged finding that (at [278]): "…if the employer were to have asked [the appellant] of the process it would undertake in erecting the pile driver, it would have been told, relevantly, that the auxiliary cable would be given sufficient slack and that an offsider would be observing continuously or constantly whether there were circumstances that would give rise to tension in either the auxiliary cable or main cable. In those circumstances, the employer would rightly have been satisfied that the system of work was adequate."
The primary judge's finding that the risk of tension failure was "ever-present" was not inconsistent with his Honour's finding that Professional Contracting lacked the requisite knowledge to be negligent. Professional Contracting did not know of the ever-present risk. There was no inconsistency because the former finding related to foreseeability generally, and the latter to whether Avopiling had established that Professional Contracting knew of the risk of harm. No error has been shown in that finding.
Avopiling's submission that the primary judge erred in failing to take into account relevant evidence should also be rejected. Fundamentally, the primary judge was correct to conclude that Professional Contracting did not know and did not have any reason to have known that it was dangerous for its employees to be anywhere near the construction of the pile driver.
It was not demonstrated that Mr Bosevski or his supervisor could appreciate the risk of tension failure on the pile driving rig simply by looking for hazards. It was not shown that they ought to have known of the risk. Similarly, it was not proven that the site induction given to Mr Bosevski by Professional Contracting was inadequate. Avopiling did not prove that Professional Contracting knew or ought to have known of the risks involved in assembling a pile driving rig. Avopiling's submission that the primary judge failed to take into account evidence elicited from Mr Bosevski also takes the matter no further. Mr Bosevski, at the time of the trial, was found to be suffering post-traumatic amnesia and could not recall the circumstances of his injury. A fair summary of the evidence was that Mr Bosevski had no memory whatsoever of the relevant events and was unaware of the risk of harm identified by the primary judge.
The expert evidence relied upon by Avopiling takes the matter no further. That evidence was addressing the things Avopiling could or should have done in response to the risk of harm, not what Professional Contracting knew or should have known about the risk of harm or what it should have done in response to that risk.
To the extent that Avopiling complained that Professional Contracting employees had no authorisation to be in the area where the pile driving rig was being constructed, as I have said, Mr Edwards' statement asserted that Mr Bosevski and his supervisor were in the vicinity of the assembling of the pile driving rig due to the need for a concrete pad to be constructed for the operation of the pile driving rig. His Honour was correct to give that statement weight. To assert as Avopiling does that "[Professional Contracting] permitted the [first] respondent to be within the vicinity of the pile driving rig" takes the matter no further in the face of this statement from an Avopiling employee that Mr Bosevski was properly present at the scene for a work-related purpose.
To the extent that Avopiling relied upon an allegedly deficient Safe Work Method Statement prepared by Professional Contracting, the issue of whether Professional Contracting was negligent in failing to correctly prepare the document was not pleaded or subject to evidence at trial. In any event, the allegedly deficient Safe Work Method Statement prepared by Professional Contracting was submitted to Avopiling and reviewed by its employee, Martin Lavisch (who was not called), without comment.
Finally, there was some evidence at the trial of an Australian Standard, part of the AS 2550 series, about the erection and commissioning of machinery, which appears to provide for a default exclusion zone of two metres from the erection of machinery. Although the relevant Australian Standard was not in evidence, it was referred to by the experts, Messrs O'Brien and Montgomery, who opined that "if the person was standing more than two metres away we consider that the risk would be low and would rapidly diminish with distance". As I have concluded at [71]-[75] below, Avopiling failed to prove where Mr Bosevski was standing at the time he was injured. This matter provides additional support for the proposition that Avopiling failed to prove that Professional Contracting was negligent.
It follows that it has not been demonstrated that his Honour erred in concluding that Professional Contracting was not negligent. Grounds 1 and 5 should be rejected.

[10]

Ground 6 - consideration

Avopiling bore the onus of establishing contributory negligence (Joslyn v Berryman (2003) 214 CLR 552 at 559; [2003] HCA 34; Ghunaim v Bart [2004] NSWCA 28; Aust Torts Rep 81-731 at [55]). It failed to prove its case on the balance of probabilities. Mr Bosevski was plainly in a zone of danger when he was struck. Avopiling's case was that he should not have been in that zone and that by being there he was guilty of contributory negligence. Avopiling did not demonstrate that it mattered, to the case of the contributory negligence it had pleaded, whether or not Mr Bosevski was injured when he was standing behind the operator of the pile driver as it was being erected or whether he was injured as he was moving away from the pile driver.
The evidence of the two operators of the rig contained in their statements to the WorkCover inspector, particularly Mr Edwards' statement, provided support for the primary judge's finding that Mr Bosevski had a legitimate reason for being in the zone around the pile driving rig when he was injured. It was open to the primary judge to draw a Jones v Dunkel inference from the failure of Avopiling to call the two operators, they being the only two people apart from Mr Bosevski and Mr Carpinato, Mr Bosevski's supervisor, who could give evidence about the moment of injury. They could also have given evidence as to where Mr Bosevski was when the auxiliary cable snapped. The Jones v Dunkel inference his Honour drew was simply that calling Mr Edwards and Mr Tangi to give evidence would not have assisted Avopiling's case. Given the clear inference available from Mr Edwards' statement, that inference was correctly drawn.
The primary judge was correct to conclude that Avopiling had not proved that Mr Bosevski knew or ought to have known of the risk of tension failure or the hazards involved in erecting the pile driving rig. The evidence cited by Avopiling as to Mr Bosevski's expertise and knowledge of the risks of standing near a rig did not support any such finding of knowledge. The evidence relied upon was at a most general level about the operation of machinery and was predicated on the explicit assertion made by Avopiling's counsel in the questions asked that Mr Bosevski had no business being anywhere near the pile driving rig at the relevant time. Mr Edwards' statement falsified that assertion.
The primary judge did not err in failing to make a finding of contributory negligence by Mr Bosevski. Ground 6 should be rejected.

[12]

Ground 3 - consideration

Avopiling did not demonstrate that this factual finding had any role to play in the case it sought to prove. Avopiling did not identify an alternative factual finding it contended for in relation to the distance of Mr Bosevski from the pile driving rig at the time he was struck. If it were relevant, the onus lay on Avopiling to establish the relevant distance in order to found its claim of negligence by Professional Contracting or contributory negligence by Mr Bosevski: Shoalhaven at [4] and [104].
Avopiling's characterisation of the expert evidence it cited to support its claim that Mr Bosevski was less than two metres from the rig when injured should be rejected. In the joint report the experts stated: "Some aspects of the accident we do not know for sure. These include: (i) The location and orientation of [the plaintiff] at the time the wire rope snapped and the precise distance from him to the base of the drilling mast…"
When this issue was addressed by the experts in joint oral evidence they did not contradict this passage. One of the experts, Mr O'Brien, gave uncontradicted evidence to the effect that the experts did not know of the distance between Mr Bosevski and the pile driving rig.
The principle in Blatch v Archer (1774) 1 Cowp 63; (1774) 98 ER 969 that where material evidence is peculiarly within a party's knowledge, it may be sufficient for the opposing party to adduce slight evidence of a matter in issue, was correctly applied by the primary judge. This was because Avopiling failed to call the two operators of the rig who were at the scene of the accident in circumstances where one operator, Mr Edwards, had given evidence in a statement to WorkCover that he saw Mr Bosevski when he was injured.
It has neither been demonstrated that his Honour erred in finding that it was more probable than not that Mr Bosevski was located more than six metres from the pile driving rig and not some two metres away, nor that it mattered. Ground 3 should be rejected.

[16]

Ground 7

A schedule of damages made as an order by Rothman J dated 3 May 2017 provided as follows: HEADS OF DAMAGE AND CALCULATIONS SUB-TOTALS TOTALS Non-economic loss 55% of a most extreme case $333,000.00 Past economic loss $660.00 npw from 22/09/06 to 30/06/08 $60,720.00 = $660.00 x 92 weeks = $660.00 npw x 104.5% (increase for CPI as at 01/07/08 = $689.70 $35,864.40 npw for 52 weeks from 01/07/08 to 30/06/09 = $689.70 x 52 weeks = $689.70 npw x 101.5% (increase for CPI as at 01/07/09) = $700.04 npw for 52 weeks from: 01/07/09 to 30/06/10 $36,402.08 $700.04 x 52 weeks = 01/07/10 to 30/06/11 $37,530.48 $721.74 x 52 = 01/07/11 to 30/06/12 $38,881.44 $747.72 x 52 = 01/07/12 to 30/06/13 $39,347.88 $756.69 x 52 = 01/07/2013 to 30/06/14 $40,292.20 $774.85 x 52 = 01/07/14 to 30/06/15 $41,500.68 $798.09 x 52 = 01/07/2015 to 30/06/16 $42,123.12 $810.06 x 52 = 01/07/2016 to 19/04/17 $33,544.56 $818.16 x 41 = TOTAL $406,206.84 Fox v Wood $33,261.60 Out-of-pocket expenses As particularised in Second Amended Statement of Particulars $181,358.51 filed 11 February 2015 Future economic loss Loss of earnings at $818.16 npw to age 67 years = $818.16 $306,409.09 npw x 440.6 less 15% for vicissitudes Loss of superannuation 11% on PEL $44,682.75 12% on FEL $36,769.09 TOTAL $81,451.84 Future medical and related expenses Medication @ $80 pw $65,160.00 = $80 pw x 814.5 = Pain specialist @ $300 once per annum $4,691.52 = $5.76 pw x 814.5 = Neurologist @ $300 once every 4 years $1,172.88 = $1.44 pw x 814.5 = GP @ $50 x 6 per year $4,691.52 = $5.76 pw x 814.5 = Psychiatrist: First 5 years: 6 visits per annum at $250 per visit = $28.84 pw x 231.5 = $6,676.46 6 to 10 years: 4 visits per annum at $250 per visit = $19.23 pw x 231.5 = $4,451.74 Deferred for 5 years = $4,451.74 x 0.784 = $3,490.16 11 years to 29.4 years: 1 visit per annum at $250 per visit = $4.80 pw x 654.2 = $3,140.16 Deferred for 10 years = $3,140.16 x 0.614 = $1,928.05 TOTAL $12,094.67 Nerve stimulator device costs Maintenance and programming on average twice per year at $550 each time = $21.15 per week x 839.4 = $17,753.31 Replacement (removal and implant) of nerve stimulator device and maintenance (required every 10 to 15 years - say twice during life expectancy) 1st replacement = $15,200.00 say in 10 years (current device implanted 18/08/2009) = $15,200 x 0.614 (deferral multiplier for 10 years on 5% tables) = $9,332.80 2nd replacement = $15,200 say in 25 years (ie 15 years after 1st replacement) = $15,200.00 x 0.295 (deferral multiplier for 25 years on 5% tables) = $4,484.00 Total = $17,753.31 + $9,332.80 + $4,484.00 = $31,570.11 Future travel to doctors, for investigations and therapy - physiotherapy, hydrotherapy, $9,000.00 rehabilitation, massage and other therapy Dental treatment $10,000.00

[19]

Submissions

The essence of Avopiling's challenge to the award of damages for past economic loss was that deductions should be made for a pre-existing shoulder injury suffered by Mr Bosevski which, it was submitted, would have required time off work for treatment in any event. Further deductions were identified for various overseas trips taken by Mr Bosevski which it was submitted would have occurred in any event and would, in the absence of the injury he suffered, have led to periods where he was not in receipt of an income.
Avopiling also submitted that the primary judge erred by not having regard to a range of evidence including, inter alia, evidence from Mr Bosevksi's treating orthopaedic specialist and allegedly inconsistent evidence from Mr Bosevski himself about the effect of his pre-existing injuries.
Regarding the primary judge's allowance for a sum of $60,720 comprising $660 per week for the period 22 September 2006 to 30 June 2008, Avopiling submitted that two deductions of $5,280 each should be made in respect of surgeries on 31 October 2006 (and convalescence of two months) and 2 April 2008 (and convalescence of two months) for Mr Bosevski's right shoulder injury.
Regarding the primary judge's allowance for a sum of $35,864 comprising $689.70 per week for the period 1 July 2008 to 30 June 2009, Avopiling submitted that three deductions should be made. First, a deduction of $13,794 in respect of the remaining five months of convalescence following the 2 April 2008 surgery. Secondly, a deduction of $2,758.80 in respect of surgery on 2 June 2009 (and convalescence of four weeks) for thyroid cancer. Thirdly, a deduction of $4,827.90 in respect of Mr Bosevski being overseas for a total period of seven weeks and one day.
Regarding the primary judge's allowance for a sum of $36,402.08 comprising $700.04 per week for the period 1 July 2009 to 30 June 2010, Avopiling submitted that two deductions should be made. First, a deduction of $700.04 in respect of one week of radiation treatment for thyroid cancer in August 2009. Secondly, a deduction of $7,000.04 in respect of Mr Bosevski being overseas for nine weeks and five days from 6 December 2009 to 12 February 2010.
The total sum of the deductions sought by Avopiling was $39,940.78, resulting in a total allowance for past economic loss of $362,266.06 rather than the primary judge's allowance of $402,206.84.

[20]

Consideration

It was common ground that one month needed to be deducted for the thyroid operation comprising $2,758. To that should be added a deduction of $700.04 in respect of one week of radiation therapy for thyroid cancer in August 2009, being a total of $3,458.04.
The most significant component of past economic loss which was in dispute related to the impact of Mr Bosevski's pre-existing shoulder injury. It was common ground that Avopiling bore the onus of demonstrating that, absent the injury caused by its negligence, Mr Bosevski would nevertheless have lost income by reason of the shoulder injury. On this issue, Avopiling did not establish how the pre-existing shoulder injury impaired Mr Bosevski's ability to perform his duties to his employer. Rather, the evidence addressed only his ability to perform duties as a "labourer". The expert evidence cited by Avopiling was to the general effect that the pre-existing injury would have affected Mr Bosevski's continued employment. That evidence lacked any precision about when and to what extent any aggravation would have impacted Mr Bosevski's earning capacity. The evidence given by Mr Bosevski relied upon by Avopiling does not lead to any different conclusion. Mr Bosevski's evidence established that the shoulder complaint he suffered from did not lead him to fail to complete the actual duties he performed for his employer. Avopiling failed to demonstrate any error in the primary judge's conclusions on this aspect of the damages award.
As for the remaining issues, Avopiling's submission concerning Mr Bosevski's overseas trips leads to no different outcome. There was no evidence as to what Mr Bosevski would have done had he continued in his employment absent Avopiling's negligence or whether, if he had decided to travel but for the injury, those trips would have fallen within Mr Bosevski's leave entitlements. Avopiling's references to industry closures and periods of unemployment likewise did not refer to any evidence. With the exception of the agreed adjustment of $3,458.04 for the thyroid operation, Avopiling's attack on the award of damages for past economic loss fails.

[21]

Appellant's submissions

Regarding future earning capacity, Avopiling submitted that the primary judge did not consider all the evidence concerning Mr Bosevski's pre-existing and subsequent injuries that would have reduced his future earning capacity: Amoud v Al Batat [2009] NSWCA 333; (2009) 54 MVR 167 at [22]-[28]. Avopiling submitted that Mr Bosevski did not adduce evidence concerning his ability to work, absent the 22 September 2006 injury, but taking into account the pre-existing right shoulder injury. In contrast, Avopiling had adduced evidence that Mr Bosevski could work in non-labouring jobs such as a taxi driver. Finally, Avopiling submitted that the primary judge erred by only applying a 15 per cent discount for vicissitudes because that discount did not take into account the extent of the challenges Mr Bosevski would have faced in any event, had he not been injured by its negligence.
It was submitted that if the Court found that Avopiling failed to discharge its onus regarding Mr Bosevski's incapacity for work as a result of injuries other than those caused by Avopiling's negligence, then the deduction for vicissitudes in respect of future economic loss should nevertheless have been increased beyond 15 per cent at a minimum in order to take into account the contingencies raised by Avopiling: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20.
Regarding the primary judge's allowance for future economic loss of a sum of $306,409.09 including a 15 per cent deduction for vicissitudes comprising $818.16 per week until Mr Bosevski was 67, Avopiling submitted that such damages should be calculated as the sum of two distinct periods. First, an allowance for $818.16 per week until age 62 using the following formula: $818.16 x 271.4 (5% multiplier for 6 years) x 0.85 = $188,741.44 Secondly, an allowance of $628.02 per week (being the per week earnings of a taxi driver) between the ages of 62 and 67 using the following formula: $628.02 x 231.5 (5% multiplier for 5 years) x 0.746 (5% multiplier deferred for 6 years) x 0.85 = $92,189.66 The total sum of the allowance sought by Avopiling was $280,931.10 rather than the primary judge's allowance of $306,409.09.
Counsel for Mr Bosevski agreed with Avopiling's submission as to the allowance for the first period, namely the sum of $188,741.44. Counsel for Mr Bosevski also accepted Avopiling's submission as to the allowance for the second period with the caveat that the sum sought by Avopiling should be increased to factor in CPI increases on the sum of $628.02 per week for the three years from 2014 to 2017 according to the following formulae: (CPI increase as at 30 June 2014 = 3%) $628.02 x 103% = $646.86 (CPI increase as at 30 June 2015 = 1.5%) $646.86 x 101.5% = $656.56 (CPI increase as at 30 June 2016 = 1%) $656.56 x 101% = $663.12 Counsel for Mr Bosevski therefore submitted that the correct formula for calculating the allowance for future economic loss should be the following: $663.12 x 231.5 x 0.746 less 15% for the vicissitudes = $97,342.13
Assuming the rejection of the submissions recorded at [97], the total sum agreed upon by the parties for future loss of earnings was $286,083.57, being the sum of $188,741.44 and $97,342.13 rather than the primary judge's allowance of $306,409.09.

[23]

Appellant's submissions

The total allowance made by the primary judge for past gratuitous care was $294,403.20.
Avopiling submitted that the primary judge erred because Mr Bosevski did not establish an entitlement to such an award pursuant to s 15(3) of the Civil Liability Act and the damages awarded were wholly unreasonable: Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649; [1968] HCA 9; Dang v Chea [2013] NSWCA 80; (2013) 63 MVR 240 at [38]-[41]. Avopiling submitted that Mr Bosevski's lack of specificity about his attendant care requirements meant that the primary judge impermissibly took the approach of "guessing" the number of hours per week of attendant care: Sampco Pty Ltd v Wurth [2015] NSWCA 117 per Basten JA at [91].
Further, Avopiling submitted that his Honour's allowance failed to have regard to a range of evidence including, inter alia, evidence concerning Mr Bosevski's capacity to complete household tasks and the extent of domestic assistance provided by Mr Bosevski's second wife, Ms Bosevski. Avopiling submitted that the primary judge erred in not concluding that Mr Bosevski had periodically received domestic assistance which was unrelated to the proceedings, that he was able to perform household chores after the 22 September 2006 injury and that he had not established that the need for Ms Bosevski's domestic assistance arose solely because of the 22 September 2006 injury or that such assistance would not have been provided to him but for that injury.
Regarding the primary judge's allowance of $16,380 comprising 28 hours per week for the period 11 October 2006 to 10 April 2007 at $22.50 per hour, Avopiling submitted that a deduction of the entire sum of $16,380 should be made in light of this evidence, together with evidence of two overseas trips taken by Mr Bosevski for periods of seven weeks and one day and nine weeks and five days respectively and the two surgeries (and respective periods of convalescence) already described above.
Regarding the primary judge's allowance of $222,418.56 comprising 21 hours per week for the period 10 April 2007 to 13 April 2015 at $25.46 per hour, Avopiling submitted that a deduction of $43,307.46 should be made in light of the same evidence described at [94], an alleged concession made by Mr Bosevski's second wife that "it is a cultural construct that Macedonian woman do all of the cooking" and the fact that her household assistance included caring for Mr Bosevski's son and her own children.
The total reduction in the award for past gratuitous care sought by Avopiling was $59,687.46, resulting in a total allowance for future gratuitous care of $234,715.74 rather than the amount of $294,403.20 awarded by the primary judge.

[24]

Consideration

Section 15 of the Civil Liability Act provides, relevantly: "15 Damages for gratuitous attendant care services: general (1) In this section: 'attendant care services' means any of the following: (a) services of a domestic nature, (b) services relating to nursing, (c) services that aim to alleviate the consequences of an injury. 'gratuitous attendant care services' means attendant care services: (a) that have been or are to be provided by another person to a claimant, and (b) for which the claimant has not paid or is not liable to pay. (2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that: (a) there is (or was) a reasonable need for the services to be provided, and (b) the need has arisen (or arose) solely because of the injury to which the damages relate, and (c) the services would not be (or would not have been) provided to the claimant but for the injury. (3) Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided): (a) for at least 6 hours per week, and (b) for a period of at least 6 consecutive months. …."
The submissions that Mr Bosevski did not establish an entitlement to the award of damages pursuant to s 15(3) of the Civil Liability Act and that the damages awarded were wholly unreasonable should be rejected.
Regarding gratuitous past care, the foundation for the findings of the primary judge on this topic was the evidence of Mr Bosevski (at [39]-[55]), his second wife Ms Bosevski (at [98]-[129]) and Mr Bosevski's son, David Bosevski (at [130]-[151]) which was summarised by the primary judge at those passages. That evidence established that Mr Bosevski was provided with gratuitous care by his family for virtually all of his needs after the accident as a result of his severe head injuries, cognitive and psychological impairment, chronic pain related to skull and facial fractures and neck and lower back pain.
The primary judge also relied upon two reports of an occupational therapist, Ms Kennedy-Gould, dated 28 March 2010 and 6 August 2012. There was no challenge to Ms Kennedy-Gould's expertise or any challenge by cross-examination to her evidence. The primary judge accepted her evidence, namely that by reason of his injuries Mr Bosevski had been unable to resume any form of employment and that he "continues with symptoms that severely restrict his participation in everyday activities and he relies heavily upon family members for assistance". In Ms Kennedy-Gould's reports details were provided of domestic tasks undertaken by Mr Bosevski's family.
Ms Kennedy-Gould's analysis was that, in the six months following discharge from hospital, by reason in particular of the dizziness suffered by Mr Bosevski which necessitated assistance with personal care activities (showering and dressing in particular), transport and all other domestic assistance tasks (laundry, shopping, cooking, cleaning, oversight due to memory problems and emotional support), Mr Bosevski required an average of four hours of care per day from his family. She opined that during the period from 11 April 2007 until the trial Mr Bosevski required at least three hours per day of domestic assistance which was provided by his family but was equivalent to a companion carer because "he has continued to require assistance with all domestic activities, with oversight due to memory problems, emotional support and transport problems". This evidence formed the basis for the primary judge's award of damages under this head. Contrary to Avopiling's submission, there is nothing in the reasoning of the primary judge to suggest that he guessed at the number of hours of care per week which had been provided. The attendant care services threshold in s 15(3) of the Civil Lability Act of at least six hours per week for a period of at least six consecutive months was met.
Avopiling's reference to Sampco v Wurth does not avail it in relation to past gratuitous care. In that case the respondent had failed to prove that the gratuitous attendant care services threshold in s 15(3) of the Civil Lability Act was met. There was in that case a lack of evidence about what the relevant tasks requiring assistance were, how often those tasks were undertaken and how long each took. The evidence did not allow an affirmative conclusion that those activities required at least six hours per week. The evidence of the doctor in that case about the need for attendant care was "somewhat tentative". In any event, the doctor did not have the expertise to make such an assessment and did not identify the activities which were included within the doctor's assessment: at [83]. Finally, the assessment undertaken by the primary judge in that case did not distinguish between "services provided to" the plaintiff and general activities undertaken on the property: Sampco at [92]. In contrast, the evidence in the present case from Mr Bosevski's family and Ms Kennedy-Gould about his need for attendant care was compelling.
Avopiling's complaint that the primary judge failed to take into account evidence concerning Mr Bosevski's capacity to complete household tasks and the extent of domestic assistance provided by Ms Bosevski (Mr Bosevski's second wife) should also be rejected. The alleged "cultural construct that Macedonian woman do all of the cooking" must be weighed against the evidence from Mr Bosevski's first wife, who was otherwise hostile to Mr Bosevski, that prior to the injury Mr Bosevski regularly cooked and performed household chores inside and outside the house. The restrictions Mr Bosevski had from his right shoulder, the evidence about the domestic work he did before the accident and the evidence of Ms Bosevski's selfless attendance upon him after his accident, even in circumstances where they were no longer living together, do not cast doubt on Ms Kennedy-Gould's assessment of his accident-related need for domestic and personal assistance. Given how extensive the services actually provided were, and the clear evidence about the absence of the provision of such services prior to the accident, the primary judge was entitled to conclude that those services would not have been provided to Mr Bosevski but for the injury, thereby satisfying s 15(2)(c) of the Civil Liability Act.
The primary judge was correct to conclude that, as a result of his injuries, Mr Bosevski was provided with attendant care by his family of at least four hours per day in the period 11 October 2006 to 10 April 2007 and at least three hours per day for the period 10 April 2007 until the trial. The threshold in s 15(3) of the Civil Liability Act was met. It follows that no error has been shown in the primary judge's award of $294,403.20 for past gratuitous care.

[25]

Submissions by the parties

The primary judge made an allowance of $778,254.75 for future domestic and attendant care. There was an issue on the appeal about whether this allowance was made on a gratuitous or commercial basis. His Honour's calculation was an allowance for future attendant care of 21 hours per week from April 2017 at $45.50 per hour, the rate consistent with the average of the unchallenged comparison rates identified for commercial future attendant care provided by Ms Kennedy-Gould. Commercial future attendant care was Mr Bosevski's only particularised claim; he made no pleaded claim for gratuitous future attendant care.
Avopiling made two principal attacks on the primary judge's award for future attendant care. The first was that his Honour found that up until the trial Mr Bosevski was receiving gratuitous attendant care services from his family, and did not find that future commercial services would at some point be availed of in place of gratuitous services, which was submitted to be contrary to White v Benjamin [2015] NSWCA 75; (2015) 70 MVR 188 at [78] . While noting that the primary judge did not make clear whether the allowance for future care was based on gratuitous or commercial rates, Avopiling submitted that the primary judge erred in making an allowance for future care on a commercial basis. This was because, first, it was clear that Ms Bosevski would continue to look after Mr Bosevski, secondly, there was no deduction for normal ageing processes and thirdly, Mr Bosevski's evidence about his pre-existing right shoulder injury. It was submitted that there was no support for a rate of $45.50 per hour for future commercial care, that the primary judge had impermissibly plucked that figure out of the air and had failed to consider whether there was a remote, not entirely fanciful or some other type of chance, of commercial domestic assistance in the future: cf Miller v Galderisi [2009] NSWCA 353 at [24].
The second major attack made by Avopiling was that his Honour erred by awarding damages for attendant care services by simply multiplying the number of hours for which attendant care was required by the rate of payment for such care over Mr Bosevski's life expectancy. In doing so, it was submitted, the primary judge's decision was inconsistent with the requirements of s 13 of the Civil Liability Act, which requires damages for future attendant care to be assessed on the basis of Malec v JC Hutton Pty Ltd.
In response to Avopiling's submissions, on the second day of the hearing of the appeal senior counsel for Mr Bosevski sought to amend his pleading to claim future gratuitous attendant care services in the alternative to commercial services. That amendment was opposed. Senior counsel for Avopiling said that he did not cross-examine Ms Kennedy-Gould about the hours claimed or circumstances described in evidence by Mr and Ms Bosevski even in the context of the claim for future commercial care because he took the view that forensically he was entitled not to challenge that evidence on the basis of the pleading. He said "I wouldn't want to overstate the prejudice but I anticipate that there was some element of prejudice there".
Avopiling submitted that if Mr Bosevski was entitled to maintain a claim for future gratuitous attendant care, the hourly rate allowed by the primary judge should be reduced to $30.15. Avopiling submitted that if this figure is used a total allowance of $438,345.57 should be awarded, calculated on the following basis: $30.15 x 21 hours x 814.5 (the relevant multiplier for Mr Bosevski's life expectancy) = $515,700.68 $515,700.68 x 0.85 (the relevant multiplier for vicissitudes) = $438,345.57
It became apparent at the hearing that the respondent had approached the question of damages for future commercial attendant care on the basis that the approach in Malec v JC Hutton did not apply. Leave was granted to file additional written submissions on the topic of the correct approach to the award of damages for future economic loss, including future attendant care. Submissions were filed by each of the parties on that topic.
The submissions filed on behalf of Mr Bosevski asserted, without reference to authority, that "section 13 of the Civil Liability Act should properly be regarded as it has always been regarded as relating to loss of earning capacity…". It was submitted that a Malec v JC Hutton approach was not warranted on the facts of this case. Those cases where a discount for vicissitudes had been applied to future medical expenses (and presumably to future attendant care) were said to "be confined to their own facts and the facts in them were what compelled the decision".
The submissions filed on behalf of the Workers Compensation Nominal Insurer sought to confine the cases where a discount for vicissitudes had been applied to future economic loss (including attendant care costs and gardening expenses) to the facts of those cases. It was submitted, presumably as a general principle, that attendant care was to be assessed by an allowance for future care, over the plaintiff's life as calculated in the life expectancy tables, without the need for a further discount for contingencies. It was also submitted that Bresatz v Przibilla (1962) 108 CLR 541 at 545; [1962] HCA 54 per Windeyer J is authority for the proposition that it is inappropriate to discount future medical attention and domestic assistance for contingencies. The same distinction as that made by Windeyer J between contingencies for loss of earning capacity on the one hand and future medical attention and domestic assistance on the other was said to be reflected in Sharman v Evans (1977-1978) 138 CLR 563 at 587; [1977] HCA 8; Simmonds v Hillsdon (No 2) [1965] NSWR 837; Henderson v Campbell [2002] NSWSC 1202 per Burchett AJ; Babbage v Dungog Shire Council [2003] NSWSC 536 per Burchett AJ and Richard v Mills (2003) 27 WAR 200; [2003] WASCA 97.

[26]

Consideration

In addressing the belated application by Mr Bosevski to amend his pleading, a distinction must be noted between future gratuitous care, which is governed by s 15 of the Civil Liability Act, and future commercial care, to which s 15 does not apply: s 15(6). The pleaded claim was one for future commercial care. I accept the assurance given by senior counsel for Avopiling (who appeared at the trial) that he did not cross-examine Ms Kennedy-Gould about the hours claimed or circumstances described in evidence by Mr and Ms Bosevski as the basis for the future commercial attendant care claim because he took the view that forensically he was entitled not to challenge that evidence on the basis of the pleading. In those circumstances, to permit the amendment of a pleading filed in 2010, on the second day of an appeal to this Court being conducted in 2018, would be unfair to Avopiling and antithetical to the just, quick and cheap resolution of the real issues in the case: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27. Leave to amend should be refused.
The Civil Liability Act governs the award of damages in these circumstances. Section 13 of the Civil Liability Act addresses the approach to claims of "future economic loss". That section provides: "13 Future economic loss - claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted. …"
Mr Bosevski submitted that s 13 of the Civil Liability Act does not apply to an award of damages for future attendant care. Mr Bosevski submitted that s 13 should be understood as applying only to the award of damages for the future loss of earnings. That submission must be rejected. The text of s 13 makes it plain that it applies to damages for future economic loss both in respect of "future earning capacity" and "other events on which the award is to be based". An award of damages for future attendant care is an "other" event on which the award is to be based.
Further, in Malec v JC Hutton, which concerned the allowance of damages for future economic loss including a claim for future attendant care, the High Court rejected the traditional common law approach to the assessment of damages for future hypothetical events, which was to determine whether the event would or would not have occurred on the balance of probabilities. The Court held that this approach was inapplicable to hypothetical future events because they are not "commonly susceptible of scientific demonstration or proof" and can only be evaluated in terms of chance (per Brennan and Dawson JJ at 639 and Deane, Gaudron and McHugh JJ at 642-3). The High Court explained that the correct approach was to calculate the "degree of probability" (per Deane, Gaudron and McHugh JJ at 643) or "possibility" (per Brennan and Dawson JJ at 640) of a future event occurring and then to adjust the award of damages according to that calculation, unless the probability is so low (less than one per cent) as to be speculative or so high (more than 99 per cent) as to be practically definite (at 643). That approach is now enshrined in the calculation of all future economic loss to which the Civil Liability Act applies: s 13(2).
Even before the introduction of the Civil Liability Act the Malec v JC Hutton approach to the assessment of damages was adopted by this Court in respect of future attendant services: Marsland v Andjelic (1993) 31 NSWLR 162 (per Kirby P and Meagher JA at 176-182, Mahoney JA at 188).
This approach was explained in Amoud v Al Batat per Allsop P at [2] and Basten JA at [29], Ipp JA agreeing (in relation to future economic loss in the context of the Motor Accident Compensation Act 1999 (NSW)) and subsequently in Miller v Galderisi at [22] per Allsop P, Basten and Macfarlan JJA (in relation to future commercial attendant care).
It is true that in Gordon v Truong [2014] NSWCA 97; (2014) MVR 241 Simpson J (with whom Macfarlan JA agreed) approached the question of future commercial attendant care on the balance of probabilities (at [133]-[134]). Basten JA, who dissented on this point, adopted the Malec v JC Hutton approach (at [26]).
The difference in approach in this Court was referred to in Sampco Pty Ltd v Wurth [2015] NSWCA 117, however the Court did not need to make a finding as to the correct approach to the assessment of damages for future attendant care in that case because the parties had agreed to proceed on the basis that Malec v JC Hutton applied (per Basten JA at [101], Meagher JA and Adamson J agreeing).
In White v Benjamin [2015] NSWCA 75, the Malec v JC Hutton approach was adopted when assessing the probability that future commercial attendant care would be required: at [87]-[92] per Basten JA, Meagher JA agreeing. The same approach was taken in Metaxoulis v McDonald's Australia Ltd [2015] NSWCA 95 where the Court considered the likelihood of future commercial attendant care being required due to a pre-existing injury: at [81] per Basten JA, McColl and Macfarlan JJA agreeing.
In Australia and New Zealand Banking Group Ltd v Haq [2016] NSWCA 93, Basten JA held (at [49]) that, as a matter of principle, it was correct to adopt the Malec v JC Hutton approach to the possibility of whether commercial attendant care would be required in the future. His Honour further stated, however, that both the Malec v JC Hutton and the traditional approach may lead to similar results. His Honour stated that under the traditional approach (at [50]): "…the trial judge must consider at what point in time commercial assistance will, on the balance of probabilities, eventuate and must make some allowance, by way of vicissitudes, against the possibility that other events will intervene."
Simpson JA did not need to consider the issue (at [203]-[206]) and Sackville AJA expressly declined to address the issue (at [236]).
Section 13 of the Civil Liability Act requires an approach to future economic loss which is consistent with Malec v JC Hutton. Likewise, the weight of authority in this Court is that the Malec v JC Hutton approach applies to an award of damages for future attendant care. I agree with Basten JA in Haq that adopting the Malec v JC Hutton approach to the calculation of damages for future attendant care is correct in principle. That is because the necessarily speculative nature of future events requires this approach. The restrictive approach urged by Mr Bosevski finds no support in the text of the Civil Liability Act. The Civil Liability Act applies to the assessment of personal injury damages and a court cannot award such damages contrary to Part 2 of the Act: s 11A. Part 2 divides all damages into economic loss (Division 2), non-economic loss (Division 3), interest on damages (Division 4), third party contributions (Division 5) and exemplary and similar damages (Division 6). Section 12(1)(b) of the Civil Liability Act, which treats loss due to the deprivation of earning capacity as a sub-set of future economic loss, is directly contrary to Mr Bosevski's submissions.
Outside of extreme circumstances where an event is practically certain to occur or not occur, I see no reason in the subject matter, scope and purpose of the Civil Liability Act why an evaluation of future economic loss should be confined to an examination of lost wages and not extend to other aspects of future economic loss which also require consideration of future contingencies such as future attendant care.
I accept that in assessing the allowance for future care, over Mr Bosevski's life, the life expectancy tables were used by the primary judge. It does not follow that there is therefore no "need for a further discount for contingencies". Nothing in Bresatz v Przibilla or the other cases referred to by Mr Bosevski and the Workers Compensation Nominal Insurer causes me to doubt this proposition. Bresatz v Przibilla and most of the cases relied upon by the respondents were decided before Malec v JC Hutton. In Malec v JC Hutton (at 645) a majority of the High Court (Deane, Gaudron and McHugh JJ) held that the damages for future attendant care that should have been awarded in that case were to be "reduced, to take account of the chance that factors, unconnected with the defendant's negligence, would have necessitated similar care and attention". Further, in none of the cases referred to by Mr Bosevski did the Civil Liability Act apply.
The primary judge's consideration of the question of future attendant care was brief. Whilst it is tolerably clear, by his identification of the commercial rate as the appropriate rate, that he awarded damages for future attendant care on a commercial basis, it is not clear how he arrived at this result. It is, however, clear that his Honour, in adopting the calculations for damages for future attendant care, did not approach the question as he was required to do by s 13 of the Civil Liability Act.
Error has thus been shown in two ways. On the first issue, the primary judge reasoned to a conclusion that commercial care was warranted on the basis of Ms Kennedy-Gould's reports. As senior counsel for the appellant pointed out, those reports did not in and of themselves establish that commercial attendant care (rather than gratuitous attendant care) was warranted. Ms Kennedy-Gould's conclusion on this issue, which was appropriately qualified, was that three hours per day of commercial care was required "in the absence of his family, for whatever reason".
On the second issue, as I have found, his Honour erred in failing to approach the question of damages for future attendant care as he was required to do by s 13 of the Civil Liability Act.
Having established error, this Court, if it is in a position to do so, should determine the matter rather than order a new trial: Uniform Civil Procedure Rules 2005 (NSW), r 51.53. This is such a case. This Court is in as good a position as the primary judge to assess the damages payable, if any, for future commercial attendant care on the correct principles.
In Van Gervan v Fenton (1992) 175 CLR 327; [1992] HCA 54 the High Court, when explaining the reason for assessing the value of gratuitous services by reference to the market rates for such services, rather than the loss to the gratuitous provider, stated (at 336): "The task of reliably determining whether a person will continue to provide personal services on a voluntary basis is much more difficult than the task of determining the traditional types of hypotheticals which come before the courts in damages cases, such as whether a plaintiff is likely to obtain employment or whether a medical condition is likely to improve or worsen. The relationship between the parties may end for any of the myriad reasons which bring about the end of relationships. But the predictability of a relationship continuing in this class of case is made more difficult than usual by the effect that the plaintiff's condition and needs have or may have on the emotional needs of those involved in caring for him or her. There is also the prospect that the care provider will not reveal to the court his or her true feelings about continuing to provide the services even in cases where the provider is conscious of those feelings."
White v Benjamin, a case relied upon by the appellant for another purpose, provides some assistance to Mr Bosevski. In that case gratuitous domestic assistance was being provided but the injured plaintiff expressed a wish to obtain commercial assistance rather than continuing to rely on her husband. The primary judge in that case rejected the plaintiff's evidence. On appeal, Basten JA (with whom Meagher JA agreed) held that in doing so the judge had erred. Basten JA explained that, contrary to the trial's judge's approach, Miller v Galderisi should be understood as providing that (at [85]): "There is no reason in principle why, if the evidence justifies it, damages may not be awarded in respect of a need for commercial domestic assistance likely to arise in the future after the availability of gratuitous assistance ceases."
Basten JA also explained (at [87]) that "it would be wrong to place too much weight on the existence or absence of direct evidence of intention" to obtain commercial attendant care. Basten JA explained further that (at [88]): "What was required was consideration of the family circumstances, including the fact that Mr White was self-employed and apparently busy; that his wife was unable to do heavy cleaning and hanging out clothes; and that cleaning services are not the kind of personal domestic assistance which one spouse may prefer to obtain from another. Rather, they are services which are readily available and availed of by those who can afford them and who are otherwise engaged in remunerative employment or have a disability."
In analysing the evidence in this way the Court in White v Benjamin permitted the recovery of damages for future attendant care on a commercial basis, subject to a "significant chance that commercial assistance will not be obtained" (at [92]).
In the present case the two reports of Ms Kennedy-Gould establish a sufficient basis to conclude that Mr Bosevski will require at least three hours per day of attendant care for the rest of his life. That conclusion is underpinned by the joint opinion of the expert psychiatrists, Drs Lewin, Jungfer and Benjamin, that there is a need for some support and supervision that is permanent and that it is reasonable that there be ongoing provision of paid support. At the time of the trial in April 2015, that level of attendant care was being provided by Mr Bosevski's family.
The principal submission made by Avopiling was that Mr Bosevski failed to prove the date upon which commercial care would be required in the future. It was submitted that the evidence was that Ms Bosevski would continue to provide gratuitous domestic attendant care for the whole of Mr Bosevski's life and thereby obviate the need for commercial attendant care.
When the Malec v JC Hutton approach is applied to the facts of this case, however, an award of damages for future attendant care on a commercial basis is warranted. When the approach explained in White v Benjamin is adopted and the family circumstances are here examined, the following matters emerge. First, Ms Bosevski had ceased living with Mr Bosevski at the time of the trial. As senior counsel for Avopiling accepted, Mr Bosevski had not been entirely successful in having the continuous attentions of his spouse. Secondly, Ms Bosevski had expressed a desire to work to Mr Bosevski. Prior to emigrating to Australia, Ms Bosevski had been employed as a salesperson and had a diploma in make-up and beauty. Thirdly, the services being provided to Mr Bosevski were not necessarily of the kind which one may prefer to obtain from one's spouse (as was the case immediately following the accident when Mr Bosevski required assistance dressing and bathing). Rather, the required services are the kind which are readily available and which can be availed of by those who can afford them and who are otherwise engaged in remunerative employment or have a disability.
It is true, as the appellant pointed out, that Ms Bosevski gave no viva voce evidence of her intention to work if an award for paid domestic care was obtained. To that end, I agree with Basten and Meagher JJA in White v Benjamin (at [87]-[88]) that it would be wrong to place too much weight on the absence of such direct evidence of intention. Accordingly, the absence of viva voce evidence from Ms Bosevski regarding her intention to work does not cause me to doubt the conclusion that, if an award of damages for future commercial care is made, Ms Bosevski will resume paid employment.
I am satisfied in this case that the primary judge did not err in, at least implicitly, deciding that after April 2015 the required attendant care services would likely be obtained on a commercial basis, assuming that funds were available to obtain such care. This is because I am satisfied, as Basten and Meagher JJA were in White v Benjamin (at [88]), that the required services are readily available and likely to be availed of by Mr Bosevski. Ms Bosevski's selfless devotion to Mr Bosevski prior to April 2015, in circumstances where funds were not available to obtain commercial care, does not alter my judgment that the evidence discloses that such services were required and likely would have been obtained after April 2015 if funds were available.
Having made that finding, however, it is necessary to consider the extent of the "allowance, by way of vicissitudes, against the possibility that other events will intervene": Australia and New Zealand Banking Group v Haq at [50] per Basten JA. The necessary exercise is "a form of speculation guided by knowledge of the plaintiff's past and expectations, derived from general experience, as to the future": Miller v Galderisi [2009] NSWCA 353 at [22]; Malec v JC Hutton at 640 and 643. In White v Benjamin, damages for future commercial attendant care were awarded for 30 years with a 15 per cent reduction for vicissitudes notwithstanding a finding that "there is a significant chance that commercial assistance will not be obtained" on the basis that a greater reduction would be "self-fulfilling": at [92] per Basten JA. In the present case, a discount of 25 per cent should be made to reflect the various risks to which the appellant has drawn attention and the significant chance that commercial assistance will not be obtained. Any greater reduction would be self-fulfilling.
As Mr Bosevski and the Workers Compensation Nominal Insurer submitted, the life expectancy to be assumed in the calculation should be that derived from the life expectancy tables. As I have said, it does not follow from the use of the life expectancy tables, that no further allowance for vicissitudes is warranted for future attendant care. In the circumstances of this case the appropriate award is to be calculated on the following basis: $45.50 x 21 x 814.5 (the relevant multiplier for Mr Bosevski's life expectancy) = $778,254.75 $778,254.75 x 0.75 (the relevant multiplier for vicissitudes) = $583,691.06
Mr Bosevski should be awarded $583,691.06 for future commercial attendant care.

[30]

Consideration

In relation to the nerve stimulator, the primary judge was correct to conclude that an allowance for the device was reasonable. The evidence clearly supported his Honour's finding. Dr Lam, a treating doctor who was a pain specialist at the brain injury unit at Liverpool Hospital, gave evidence that the nerve stimulator gave Mr Bosevski "some relief to help with improvement in his quality of life". Dr Lam's evidence ultimately was not successfully contradicted and directly supported his Honour's finding. No reason has been shown to interfere with his Honour's allowance.
On the issue of contingencies, however, I am unable to agree with Mr Bosevski that the primary judge's assessment of likely future medical expenses should not be approached on a Malec v JC Hutton basis. The identification of medical costs likely to be incurred in the future is a species of future economic loss under s 13 of the Civil Liability Act. As with all future events, there is a possibility that such expenses would have been incurred notwithstanding the injury, exactly the kind of situation contemplated by the High Court in Malec v JC Hutton.
The medical expenses in the present case are subject to fewer contingencies than other categories of future economic loss. This is because the primary judge had available evidence from the various treating specialists of the treatment given to date and the costs of the various treatment plans indefinitely into the future. There remained a doubt, however, about some of the expenses, in particular the continued use of the nerve stimulator over Mr Bosevski's lifetime. In conducting the form of speculation guided by knowledge of the plaintiff's past and expectations, derived from general experience, as to the future, the appropriate reduction is 10 per cent of the sum of $138,380.70 awarded by the primary judge.
The appropriate award is to be calculated on the following basis: $138,380.70 x 0.90 = $124,542.63
Mr Bosevski should be awarded $124,542.63 for future medical expenses.

[31]

Conclusion on damages issues

For the foregoing reasons, ground 7 should be upheld in part. In summary: 1. Avopiling's challenge to the primary judge's award of damages for past economic loss fails save to the extent that a small adjustment needs to be allowed to take account of an operation for a thyroid condition which would have been required in any event. The primary judge's allowance of $402,206.84 should be reduced by $3,458.04 to $398,748.80; 2. Avopiling's challenge to the primary judge's award of damages for loss of future earning capacity fails, save that the agreed adjustments to the award of damages for loss of future earning capacity must be made. The award is in the amount of $286,083.57, being the sum of $188,741.44 and $97,342.13, rather than the primary judge's allowance of $306,409.09; 3. Avopiling's challenge to the primary judge's award of damages for past gratuitous care should be dismissed; 4. Avopiling's challenge to the primary judge's award of damages for future commercial attendant care succeeds in the sense that future commercial care should be awarded with a reduction of 25 per cent, to produce an award of $583,691.06; 5. Avopiling's challenge to the primary judge's award of damages for lawn mowing and handyman services succeeds. That award should have been approached on a Malec v JC Hutton basis. A reduction of 25 per cent should be applied, producing awards of $27,489.38 for lawn mowing and $19,670.18 for handyman services; 6. Avopiling's challenge to the primary judge's award of damages for future medical expenses succeeds. A discount of 10 per cent should be applied, producing an award of $124,542.63.
Although the Court has calculated figures for each of these matters it is possible that corrections will need to be made and likely that further calculations, particularly calculations of interest, will be necessary. It is appropriate that the parties have an opportunity to make submissions in writing about the appropriate orders to be made to give effect to the Court's reasons.

[32]

Costs

Section 98 of the Civil Procedure Act 2005 (NSW) confers on the Court a wide discretion with respect to costs. Under rule 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) the general rule is that the Court is to order that costs follow the event. The "event" may be characterised in more than one way. Generally the "event" refers to the result of the claim or counterclaim, as the case may be, and may be understood as referring to the practical result of a particular claim: Doppstadt Australia Pty Ltd v Lovick & Sons Developments Pty Ltd (No 2) [2014] NSWCA 219 at [15] per Ward, Emmett and Gleeson JJA. Where there has been a mixed outcome in the proceedings, and it is appropriate to entertain the process of apportioning costs as between different issues in the proceedings, in general such an exercise will be carried out on a relatively broad brush basis, and largely as a matter of impression and evaluation by the Court: Doppstadt at [19]; James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [36]; Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 at 22.
The relevant principles for the determination of costs on an issue-by-issue basis were stated in Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38] per Beazley, Ipp and Basten JJA: "Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Waters v P C Henderson (Aust) Pty Ltd (Court of Appeal, 6 July 1994, unreported). In relation to trials it has been said that it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument: Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 at [24]. A similar approach is adopted on appeal. If the appellant loses on a separate issue argued on the appeal which has increased the time taken in hearing the appeal, then a special order for costs may be appropriate which deprives the appellant of the costs of that issue: Sydney City Council v Geftlick & Ors (No 2) [2006] NSWCA 374 at [27]. Whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed: State of New South Wales v Stanley [2007] NSWCA 330 at [18] per Hislop J (with whom Beazley and Tobias JJA agreed). A separable issue can relate to "any disputed question of fact or law" before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [34]. Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation: James v Surf Road Nominees Pty Ltd (No 2), citing Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 272."
In this case Avopiling has succeeded on some damages issues but failed on its challenge to liability. Liability issues occupied by far the most time in the written submissions and the presentation of the case on appeal. The principal success enjoyed by Avopiling was in relation to the method of calculation of future economic loss. Although that will ultimately have a significant financial impact on the calculation of damages in this case, most of the detailed and time consuming criticisms made by Avopiling in relation to damages failed.
This is a case where many of the issues of fact and law are separable. This is so both as between the liability and damages issues and also as between the various damages issues which were agitated.
Applying the appropriate broad bush approach based on matters of impression and evaluation, Avopiling should be assessed as having had 20 per cent success on the appeal (having obtained a reduction in damages), but having failed on the principal issue of liability and on many of the issues of damages. On the separable issues of liability and damages Mr Bosevski should be assessed to have been 80 per cent successful on the appeal. Considering the relevant "event" overall, and taking into account the success of both parties on the separable issues in this case, Avopiling should be ordered to pay 60 per cent of Mr Bosevski's costs to reflect a set-off.
In the circumstances of this case, Mr Bosevski was successful below. Nothing in this appeal affects that overall success. It is thus not appropriate to interfere with the costs award made below as order 4 on 29 March 2017: Bosevski v Avopiling Ltd; the Workers Compensation Nominal Insurer v Avopiling Pty Ltd [2016] NSWSC 1893 at [379]-[380].
In the indemnity proceedings, where Avopiling failed in its challenge, Avopiling must pay the Workers Compensation Nominal Insurer's costs of the appeal as agreed or assessed. Those costs should include the costs of participating in the debate about whether Mr Bosevski and Professional Contracting were negligent, a matter raised in Avopiling's defence, the outcome of which debate affected the Workers Compensation Nominal Insurer's interests.
Given that Avopiling's cross-claim against the Workers Compensation Nominal Insurer (alleging it was responsible for Professional Contracting's negligence) was discontinued before the trial commenced before the primary judge, orders 3 and 4 made by the primary judge on 3 July 2017 dismissing that cross-claim with costs were made in error and should be set aside.

[34]

Amendments 10 August 2018 - 10/08/18: Typographical error in [169] amended. 27 August 2018 - 27/08/18: Paragraph numbering amended in [165]. 31 August 2018 - table reformatted in [83] 09 May 2019 - Coversheet - corrected paragraph of White JA's judgment from [181] to [182]; added reference to Miller v Galderisi [2009] NSWCA 353 [21] - added pinpoint reference to judgment below, "at [331]" [26], [28], [30], [31], [93], [157], [158] - removed ".00" from numerical figures [36] - corrected case name "United" to "Uniting" and "of" to "in"; added reported citations [37] - corrected case name adding "League"; removed MNC cited prior for Mooney; removed "per" [38], [39] - added section heading for legislation [43] - added reported case citation in Perisher Blue [66], [70] - added reported case citation to Aust Torts Reps [48] - added pinpoint reference to judgment below, "at [283]" [83] - removed "20" from years in dates (i.e. "2019" became "19") [96], [119], [132] - added reported case citation to MVRs [99] - changed "20 June" to "30 June" [115] - removed MNC cited prior in Sampco [120] - removed case citation cited prior in Malec [125] - corrected case name from "Simmons" to "Simmonds"; corrected citation of Babbage v Dungog to "536" from "562"; corrected to "Burchett AJ" from "Einstein J" [130] - corrected pinpoint reference in Kirby P and Meagher JA judgment in Masland from "176-186" to "176-182" [131] - removed MNC cited prior in Amoud and Miller v Galderisi [139] - deleted "the" from "over the Mr Bosevski's life" [145] - removed MNC cited prior in Miller v Galderisi [153] - attributed quote to Miller v Galderisi at [22] [170(2)] - rephrased to "award of damages for loss of future earning" rather than "award of loss for future earning" [178] - corrected "Boveski" to "Bosevski" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 May 2019

Legislation Cited (6)

Civil Liability Act 2005(NSW)

Motor Accident Compensation Act 1999(NSW)

Civil Liability Act 2002(NSW)

Workers Compensation Act 1987(NSW)

Uniform Civil Procedure Rules 2005(NSW)

Civil Procedure Act 2005(NSW)

Cases Cited (60)

Brown v New South Wales Trustee and Guardian [2012] NSWCA 431 Dang v Chea [2013] NSWCA 80; (2013) 63 MVR 240 Doppstadt Australia Pty Ltd v Lovick & Sons Developments Pty Ltd (No 2) [2014] NSWCA 219 Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 Fox v Wood (1981) 148 CLR 438; [1981] HCA 41 Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 Ghunaim v Bart [2004] NSWCA 28 Henderson v Campbell [2002] NSWSC 1202 James v Surf Road Nominees Pty Ltd ((No 2) [2005] NSWCA 296 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 Miller v Galderisi [2009] NSWCA 353 Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90 Port Macquarie Hastings Council v Mooney [2014] NSWCA 156 Richard v Mills ((2003) 27 WAR 200; [2003] WASCA 97 Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 Sampco Pty Ltd v Wurth [2015] NSWCA 117 Sharman v Evans (1977-1978) 138 CLR 563; [1977] HCA 8 Shaw v Thomas [2010] NSWCA 169 Shoalhaven City Council v Humphries [2013] NSWCA 390 United Church of Australia Property Trust ((NSW) v Miller [2015] NSWCA 320 Van Gervan v Fenton (1992) 175 CLR 327; [1992] HCA 54 White v Benjamin [2015] NSWCA 75 Category: Principal judgment Parties: 2017/117390

Moray & Agnew (Appellant in both matters) Villari Lawyers (Respondent in 2017/117390) HWL Ebsworth (Respondent in 2017/117381) File Number(s): 2017/117390; 2017/117381 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Division Citation: [2016] NSWSC 1893 Date of Decision: 29 March 2017 Before: Rothman J File Number(s): 2009/337219; 2011/70381

Headnote [This headnote is not to be read as part of the judgment] In 2006 Mr Riste Bosevski, a labourer employed by Professional Contracting Pty Ltd, was injured at a work site in regional New South Wales operated by Avopiling Pty Ltd. Two employees of Avopiling Pty Ltd were erecting a mast on a pile driving rig at the site when an auxiliary cable on the mast snapped, causing metal objects to fall and strike Mr Bosevski, who was standing with his supervisor in the vicinity of the pile driving rig. Mr Bosevski suffered injuries to his head, neck and chest. In 2009 Mr Bosevski commenced proceedings in negligence against Avopiling Pty Ltd. In 2011 Avopiling Pty Ltd filed a defence claiming, inter alia, contributory negligence by Mr Bosevski. In its defence, Avopiling Pty Ltd also alleged that any liability it had to Mr Bosevski ought to be reduced under s 151Z(2) of the Workers Compensation Act 1987 (NSW) by reason of the negligence of Professional Contracting Pty Ltd. Later in 2011 the Workers Compensation Nominal Insurer, which by that time was responsible for Professional Contracting Pty Ltd's obligations to pay workers compensation, commenced proceedings against Avopiling Pty Ltd seeking indemnity pursuant to s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW) for payments it had made to Mr Bosevski. In its defence, Avopiling Pty Ltd repeated the allegation that any liability it had to Mr Bosevski ought to be reduced under s 151Z(2) of the Workers Compensation Act 1987 (NSW) by reason of the negligence of Professional Contracting Pty Ltd. Both sets of proceedings were heard together. In the negligence proceedings, the primary judge found that Avopiling Pty Ltd had been negligent. The primary judge awarded Mr Bosevski damages in the sum of $2,632,390.93. The primary judge found that Professional Contracting Pty Ltd had not been negligent and Mr Bosevski had not been guilty of contributory negligence. In the indemnity proceedings, the primary judge found in favour of the Workers Compensation Nominal Insurer in the sum of $919,225.23. The primary judge rejected Avopiling Pty Ltd's defence that Professional Contracting Pty Ltd had also been negligent. On appeal the issues were: (i) Whether the primary judge formulated the risk of harm for the purposes of the negligence of Professional Contracting Pty Ltd and the contributory negligence of Mr Bosevski in a way that was impermissible; (ii) Whether the primary judge erred in finding that Professional Contracting Pty Ltd was not negligent; (iii) Whether the primary judge erred in not making a finding of contributory negligence by Mr Bosevski; (iv) Whether the primary judge erred in his Honour's award of damages. The Court (Payne JA, McColl and White JJA agreeing) held, allowing the appeal in part: In relation to issue (i), per Payne JA (McColl JA agreeing and White JA agreeing in part and not deciding if the formulation of the risk of harm was too narrow): Avopiling Pty Ltd bore the onus of proof, including the identification of the correct risk of harm, to establish negligence in relation to Professional Contracting Pty Ltd and contributory negligence in relation to Mr Bosevski. It failed to frame its pleadings in respect of the risk of harm by specific reference to relevant provisions of the Civil Liability Act 2005 (NSW) or identify the correct risk of harm in its pleadings: [40]-[42] Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151, applied. The primary judge's formulation of the risk of harm was not in error. It identified the source and general causal mechanism of the injury: [43] Civil Liability Act 2005 (NSW), s 5B; Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42; Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90, applied. In relation to issue (ii), per Payne JA (McColl and White JJA agreeing): The primary judge was correct to find that Professional Contracting Pty Ltd was not negligent. The evidence established that Mr Bosevski and his supervisor were acting in the scope of their duties by being in the vicinity of the pile driving rig: [50]-[52], [59], [62], [79]-[81] It was not demonstrated that Professional Contracting Pty Ltd knew, or had any reason to know, of the risk of harm, or that Mr Bosevski or his supervisor could appreciate the risk of harm: [55]-[58] In relation to issue (iii), per Payne JA (McColl and White JJA agreeing): The primary judge was correct not to make a finding of contributory negligence by Mr Bosevski. The evidence established that Mr Bosevski had a legitimate reason for being in the vicinity of the pile driving rig when he was injured, and Avopiling Pty Ltd did not prove that Mr Bosevski knew or ought to have known of the risk of harm: [66]-[69], [79]-[81] Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34; Ghunaim v Bart [2004] NSWCA 28, applied. In relation to issue (iv), per Payne JA (McColl and White JJA agreeing): The primary judge's award of damages should be varied in respect of some heads of damage and left undisturbed in respect of other heads. Save for certain agreed adjustments, Avopiling Pty Ltd failed to show error in the award of damages for past economic loss, loss of future earning capacity and past gratuitous care: [94]-[95], [101]-[103], [111]-[117], [169] Civil Liability Act 2002 (NSW), s 15; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20, applied. Sampco v Wurth [2015] NSWCA 117, distinguished. Section 13 of the Civil Liability Act 2002 (NSW) applies to damages for future economic loss both in respect of "future earning capacity" and "other events on which the award is to be based". The latter category includes damages for future attendant care, lawn mowing, gardening and handyman services, and future medical expenses. Sub-section (2) requires an approach to the assessment of damages which is consistent with the approach in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20. This extends to the assessment of damages for future attendant care, lawn mowing, gardening and handyman services, and future medical expenses, consistent with principle and the weight of authority in this Court. This involves calculating the percentage possibility of a future event occurring but for the injury and then adjusting the award of damages according to that calculation: [128]-[137] Civil Liability Act 2002 (NSW), Part 2, ss 11A, 12, 13; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20; Marsland v Andjelic (1993) 31 NSWLR 162; Amoud v Al Batat [2009] NSWCA 333; Miller v Galderisi [2009] NSWCA 353; White v Benjamin [2015] NSWCA 75; Metaxoulis v McDonald's Australia Ltd [2015] NSWCA 95, applied. Sampco Pty Ltd v Wurth [2015] NSWCA 117, considered. Gordon v Truong [2014] NSWCA 97, not applied. It does not follow from the use of the life expectancy tables that no further allowance for vicissitudes is warranted for future attendant care: [138], [153] Bresatz v Przibilla (1962) 108 CLR 541; [1962] HCA 54; Sharman v Evans (1977-1978) 138 CLR 563; [1977] HCA 8; Simmons v Hillsdon (No 2) [1965] NSWR 837; Henderson v Campbell [2002] NSWSC 1202; Babbage v Dungog Shire Council [2003] NSWSC 562; Richard v Mills (2003) 27 WAR 200; [2003] WASCA 97, distinguished. The primary judge did not approach the assessment of damages for future attendant care, lawn mowing, gardening and handyman services, and future medical expenses in the manner required by section 13 of the Civil Liability Act 2002 (NSW): [139], [141], [159], [165] In reassessing the award of damages for future attendant care, an award of damages for future attendant care on a commercial basis is warranted because the required services are readily available and likely to be availed of by Mr Bosevski. A discount of 25 per cent should be made to that award to reflect the various risks in Mr Bosevski's circumstances and the chance that commercial assistance will not be obtained: [139], [142], [147], [149]-[152] Uniform Civil Procedure Rules 2005 (NSW), r 51.53; Civil Liability Act 2002 (NSW), s 13; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20; Van Gervan v Fenton (1992) 175 CLR 327; [1992] HCA 54; Australia and New Zealand Banking Group Ltd v Haq [2016] NSWCA 93; White v Benjamin [2015] NSWCA 75, applied. In reassessing the award of damages for lawn mowing, gardening and handyman services, a discount of 25 per cent is appropriate: [159], [169] Civil Liability Act 2002 (NSW), s 13; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20, applied. In reassessing the award of damages for future treatment expenses, a discount of 10 per cent is appropriate: [166], [168], [169] Civil Liability Act 2002 (NSW), s 13; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20, applied.

[2003] WASCA 97

(1990) 169 CLR 638

(2009) 239 CLR 175

(1968) 122 CLR 649

(2012) 247 CLR 345

(2013) 63 MVR 240

(1981) 148 CLR 438

(1959) 101 CLR 298

(2003) 214 CLR 552

(2003) 27 WAR 200

(2007) 234 CLR 330

(1992) 175 CLR 327