Berkeley Challenge Pty Ltd v Howarth - [2013] NSWCA 370 - NSWCA 2013 case summary — Zoe

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Berkeley Challenge Pty Ltd v Howarth

[2013] NSWCA 370

Court of Appeal (NSW)|2013-08-19|Before: Basten JA, Meagher JA

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2013-08-19

Before

Basten JA, Meagher JA

Catchwords

214 CLR 1118 Guides Australia Inc v McMartin [2006] NSWCA 20
1 CLR 243 Mead v Kerney [2012] NSWCA 215 Moran v McMahon [1985] 3 NSWLR 700 Najdovski v Crnojlovic [2008] NSWCA 175
(2001) 53 NSWLR 463 Todorovic v Waller [1981] HCA 72
(1981) 150 CLR 402 Warren v Coombes [1979] HCA 9

Source

Original judgment source is linked above.

Catchwords

214 CLR 1118 Guides Australia Inc v McMartin [2006] NSWCA 201 CLR 243 Mead v Kerney [2012] NSWCA 215 Moran v McMahon [1985] 3 NSWLR 700 Najdovski v Crnojlovic [2008] NSWCA 175(2001) 53 NSWLR 463 Todorovic v Waller [1981] HCA 72(1981) 150 CLR 402 Warren v Coombes [1979] HCA 9

Judgment (30 paragraphs)

[1]

SWCA 199 Spencer v Bamber [2012] NSWCA 274 State of New South Wales v Zerafa [2005] NSWCA 187 Talbot-Price v Jacobs [2008] NSWCA 189 Todorovic v Moussa [2001] NSWCA 419; (2001) 53 NSWLR 463 Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 Warren v Coombes [1979] HCA 9; 142 CLR 531 Wilson v Peisley (1975) 50 ALJR 207 Texts Cited: American Medical Association, Guides to the Evaluation of Permanent Impairment, 5th edition, 2001 H Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2002) Category: Principal judgment Parties: Berkeley Challenge Pty Ltd (First Appellant) Peel Valley Exporters Pty Limited (Second Appellant) Christopher Howarth (Respondent) Representation: Counsel: Mr G M Watson SC and Ms J Chapman (Appellants) Mr P J Doherty SC and Mr P J O'Connor (Respondent) Solicitors: Yeldham Price O'Brien Lusk (Appellants) R J O'Halloran & Co (Respondent) File Number(s): 2012/106712 Decision under appeal Jurisdiction: 9101 Citation: Christopher Howarth v Spotless Group Limited and Ors [2012] NSWDC 25 Date of Decision: 2012-03-23 00:00:00 Before: Sidis DCJ File Number(s): 2010/336491

[3]

Assessment of non-economic loss 5Damages for non-economic loss are required to be assessed as a proportion of a most extreme case: Civil Liability Act 2002 (NSW), s 16. Non-economic loss assessed at less than 15% of such a case cannot be compensated: s 16(1). An assessment between 15% and 33% gives rise to an award on a scale increasing from 1% to 33% of the prescribed maximum amount. The trial judge assessed the severity at 33% of a most extreme case, thus permitting an award of 33% of the maximum amount, being $171,500. The appellant submitted that this assessment of severity was disproportionate and that the proper figure should have been in the order of 25%. Because of the tapered scale, the result of such a variation has a disproportionate effect on the award. An assessment of severity as 25% of a most extreme case will give rise to an award of $33,780, being a reduction of $137,720. Thus, the effect of the taper is that a variation from 33% of a most extreme case to 25% gives rise to an 80% reduction in an award. 6This consequence does not, however, lead to the conclusion that some unrealistic level of precision is required of the trial judge in assessing the proportion of a most extreme case. It is an artefact rather than a factor to be taken into account. On that view, it may be said that a variation of 8% (that is, the difference between 33% and 25%) is unlikely to be indicative of error, because the range within which the relevant proportion lies cannot, in practical terms, be so tightly confined. On the other hand, it could be argued that the disparity is significant in the sense that 33% is one-third higher than 25% or, conversely, 25% is one-quarter lower than 33%. 7Although these statements are arithmetically correct, it is neither necessary nor appropriate to choose between them. Thus, the absolute variation of 8% does not become huge the lower down the scale one goes (the extreme case being the difference between 1% and 9%, a factor of 800%) nor does it become insignificant by comparison at the top of the scale (being the difference between 91% and 99%). Rather, the question which must be asked is whether in relation to the injury suffered by a particular plaintiff the figure of 33% of a most extreme case can be seen to be outside a reasonable range of assessment. 8This approach is consistent with that adopted in Dell v Dalton (1991) 23 NSWLR 528 with respect to a similar assessment required under the Motor Accidents Act 1988 (NSW). The statutory scheme was not identical to that now found in the Civil Liability Act, but there was a cap on non-economic loss and a requirement that damages be awarded as a proportion of the maximum which "shall be awarded only in a most extreme case": s 79(3). Handley JA (with whom Kirby P and Priestley JA agreed) stated at 533-534: "In my opinion it was open to the trial judge on his findings to conclude that this was 'a most extreme case'. Once this Court holds that the findings of fact by the trial judge 'admit of different conclusions' the ultimate finding that a particular case is or is not 'a most extreme case' will not readily be susceptible of appellate review. Like other issues in the assessment of damages for personal injuries its resolution will involve questions of fact and degree, and matters of opinion, impression, speculation, and estimation, calling for the exercise of commonsense and judgment. Accordingly this Court will only be entitled to intervene and disturb the ultimate conclusion of the trial judge in accordance with the ordinary principles governing appellate review of awards of damages for personal injury. These were discussed and applied by this Court in Moran v McMahon [1985] 3 NSWLR 700." 9In Moran v McMahon Priestley JA (with which McHugh JA agreed) analysed developments in the High Court, which had not followed an entirely consistent approach over the previous 15 years, being the period over which the jurisdiction of this Court has been dependent on the terms of s 75A of the Supreme Court Act 1970 (NSW), referred to by Priestley JA at 714-715. Priestley JA understood the approach to be taken on an appeal by way of rehearing to be that identified by the English Court of Appeal in Coghlan v Cumberland [1898] 1 Ch 704 at 704-705, an approach adopted by the High Court in a consistent line of cases, namely McLaughlin v Daily Telegraph Newspaper Co Ltd (No 2) [1904] HCA 51; 1 CLR 243 at 277; Warren v Coombes [1979] HCA 9; 142 CLR 531 (though not referred to) and Fox v Percy [2003] HCA 22; 214 CLR 118. 10Priestley JA in Moran accepted that an assessment of general damages under the general law was to be reviewed on principles analogous to those applied to the exercise of a discretionary power. Further, Priestley JA accepted that in such a case the relevant principles which had found favour in the High Court were those expressed by Greer LJ in Flint v Lovell [1935] 1 KB 354, as set out by Mason J, in dissent, in Wilson v Peisley (1975) 50 ALJR 207 at 214. Thus, Mason J stated that "an appellate court will not disturb a primary judge's award of damages for personal injury unless it is convinced that he has acted on a wrong principle of law or that he has misapprehended the facts or that the amount of damages awarded is so inordinately low or so inordinately high as to be a wholly erroneous estimate of the damage suffered". 11The use of the colourful and demonstrative adjectives was intended to demonstrate the need for appellate restraint. However, in the same passage, Mason J noted that the High Court would not readily infer that an intermediate appellate court had misconceived its function in concluding that "a particular award of damages lies beyond the limits of what a sound discretionary judgment could reasonably adopt". It is not to be inferred that the two statements, separated by two sentences, are intended to convey different standards. It is therefore unhelpful to refer, as recent judgments in this Court have tended to, to the evocative language of the first statement, whilst omitting the more restrained expression in the latter statement. 12Priestley JA further spelled out the important factors which underlay this principle, which may be summarised as involving two limbs. First, he noted that "the aspect which has always given rise to the invocation of discretionary considerations has been the difficulty of translating into money terms the non-economic effect of the plaintiff's injury upon his life": at 723C. Secondly, in making that assessment, due allowance must be made for the advantage enjoyed by the trial judge who has heard and seen, not only the witnesses, but particularly the plaintiff. In relation to an assessment of the effect of the injuries upon an individual, that is a matter having particular significance. As explained by Handley JA in Dell v Dalton, with respect to the legislative scheme adopted in the Motor Accidents Act, the purpose was not to "enact a statutory table of maims which reduces all human beings to some common denominator and require[s] the impact of particular injuries on a given individual to be ignored": at 533A. 13There is, however, another aspect of Moran which bears note. In concluding that the assessment of damages for pain and suffering was to be equated with a discretionary judgment, Priestley JA distinguished the assessment of damages for loss of earning capacity: at 723E-F. The importance of the distinction is that the assessment of general damages, now being reduced by statute to a determination of the severity of the injuries as a proportion of a most extreme case, involves no translation of pain and suffering into a cash payment, but is rather to be compared with the assessment of the restrictions imposed by the injuries on the plaintiff's pre-existing earning capacity. On this approach, the assessment of non-economic loss is not to be seen as analogous to a discretionary judgment, but rather to be subject to the general principles for appellate review articulated in Warren v Coombes. That means that if the appellate court's assessment of the facts satisfies it that the conclusion reached by the trial judge is erroneous, it should not shrink from substituting its own opinion for that of the trial judge. If that conclusion permits of a higher level of intervention in respect of such awards, that is because of the significant change which has been made from the common law principles governing general damages. The statutory reforms have, for example, rendered irrelevant the strictures in Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; 119 CLR 118 against touting cases of comparable figures for non-economic loss. 14Experience confirms that, however the standard is described, intervention is by no means unusual. Thus, in Coles Supermarkets Australia Pty Ltd v Meneghello [2013] NSWCA 264, this Court was able to conclude that the severity of the plaintiff's injury was less than 20% of a most extreme case and was, at most, 10%: at [108]. It is also common experience that there will, in practical terms, usually be a rough equivalence between loss of earning capacity, the need for domestic assistance, and the degree of severity of the injuries. In any event, whether demonstrating equivalence or disparity, the exercise involved in each assessment is similar. 15Each member of the majority in Wilson v Peisley wrote separately: thus, the following comment did not form part of a majority position. Nevertheless, it is instructive that, in allowing the appeal, Barwick CJ noted at 210E (col 2): "It is perhaps unfortunate in this case that the judge, quite unnecessarily, though understandably, disclosed the amount of some of the integers which he considered in arriving at his total award. The unwisdom of such a course is evident." 16Mason J (at 216A-B (col 2)) adopted a different approach, stating: "No doubt adoption of the practice enhances the possibility of appeal. But it is only just that the litigant should know how it is that the total award of damages has been computed." 17Careful calculation of the individual heads of damage allowed in personal injury matters (although often to an undue level of precision in monetary terms) is now universal practice. It conforms to modern standards of transparency in decision-making. It is required by the Civil Liability Act and Motor Accidents Compensation Act. 18It is now commonplace, as in this case, for an appellate court to undertake a careful assessment of each head of damage to see whether the amount awarded by the trial judge is in some respect erroneous. Further, whatever evocative language may have been used in the past to describe the principle of restraint, the level of restraint cannot be higher with respect to awards assessed by judges than in respect of awards by juries: cf Supreme Court Act, ss 106 and 107. 19Applying those principles, I agree with Tobias AJA that the appellant has not demonstrated that the ongoing pain and suffering of the respondent resulted in an erroneous assessment. The reason for that conclusion is primarily that such a finding was open on the medical evidence accepted by the trial judge and must have depended in part on her assessment of the plaintiff in the witness box.

[4]

Loss of earning capacity 20An assessment of economic loss arising from personal injury must be assessed in accordance with Part 2 of the Civil Liability Act. A court "cannot" award damages contrary to Pt 2: s 11A(3). Thus, in respect of future economic loss, the starting point for the court's consideration is s 13. That section is in the form of a prohibition: 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": s 13(1). The court is then 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": s 13(2). Further, "[i]f" the court makes an award for future economic loss, meaning whenever it makes such an award, "it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted": s 13(3). 21The principles thus articulated are premised on an understanding that the general law allows an award of damages for loss of earning capacity resulting from tortiously incurred personal injury. However, beyond reliance upon such basic understandings, it can only invite error to approach an assessment of damages for future economic loss by reference to common law principles. In particular, it is erroneous to approach questions of onus of proof except through the lens of the statutory requirement that no award can be made "unless the claimant first satisfies the court" as to the basis for such an award. There is no textual or contextual support for reading down this provision to impose on a defendant an onus to establish the absence of "residual earning capacity". The burden is on the plaintiff to demonstrate, if that be the claim, that he or she has lost the whole of the pre-injury earning capacity. The statement in Rabay v Bristow [2005] NSWCA 199 at [73] which suggests that "[i]t is for a defendant which contends that the plaintiff has a residual earning capacity to adduce evidence of what the plaintiff is capable of doing and what jobs are open to such a person" may need to be reconsidered by reference to the statutory provision. (The authority for the proposition was to be found in H Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2002) at [1.9.20], for which proposition no case under the Civil Liability Act or the Motor Accidents Compensation Act 1999 (NSW) was cited.) The statement was referred to in Najdovski v Crnojlovic [2008] NSWCA 175; 50 MVR 430 at [74], but by reference to a concession by the defendant. 22I agree with Tobias AJA that there was a sufficient compliance with s 13 in the present case to allow the Court to glean an understanding of the assumptions about future earning capacity and as to the respondent's most likely future circumstances but for the injury. However, in the discussion under the heading "Loss of income earning capacity", and in particular the explanation at [154] of the factors taken into account, there is no reference to the uncontentious medical evidence that the respondent suffered, before the accident, from asymptomatic degenerative changes in his elbow, which were aggravated by the fall and rendered symptomatic: see, eg, Dr Oates' report, referred to at [132]. Both he and Dr Dalton, upon both of whom the trial judge appears to have relied, described the consequence of the fall as an "aggravation" of the pre-existing condition as well as, in the report of Dr Dalton, an "additional osteochondral injury": at [135]. 23In discussing pain and suffering, the trial judge accepted that the respondent had "suffered a moderately severe injury to his left elbow that aggravated and rendered symptomatic the pre-existing degenerative condition of the elbow": at [138]. The appellants' contention was that no allowance was made for the pre-existing degenerative condition in reducing the award for future economic loss by the standard 15% for vicissitudes. As the respondent submitted, the figures given by the trial judge (without express explanation) suggest that she based her calculations on the assumption that the respondent, who was then 48 years of age, would continue working until 65, a period of 17 years. Although that is a relatively short period, and the likelihood of the degenerative condition becoming symptomatic during that period is not readily assessable, some further allowance should have been made. In all the circumstances, an allowance of 25% for vicissitudes would have been appropriate. 24In other respects, I agree with the assessment made by Tobias AJA. 25MEAGHER JA: Subject to one matter I agree with the reasons and conclusions of Tobias AJA with respect to the appellant's challenges to the primary judge's assessment of non-economic loss, past economic loss, future economic loss, damages for future domestic assistance and the reduction of the respondent's damages pursuant to s 151Z(2) of the Workers Compensation Act. That matter concerns the assessment of future economic loss. For the reasons given by Basten JA, I agree that the primary judge erred in not taking into account the pre-existing degenerative condition to the respondent's left elbow when making an allowance for contingencies. Otherwise I agree with the orders proposed by Tobias AJA, noting that the recalculation of the damages to be awarded for future economic loss should include an allowance for contingencies of 25 per cent. 26TOBIAS AJA: On 23 October 2006, Mr Christopher Howarth, the respondent, injured his left shoulder and elbow when he fell in the course of his employment as a cleaner at an abattoir operated by Peel Valley Exporters Pty Limited, the second appellant. At the time of his injury the respondent was employed by Fast Track Pty Ltd ("Fast Track"), a labour hire company, which in turn had hired the respondent's services to Berkeley Challenge Pty Ltd, the first appellant. The first appellant had the contract to clean the second appellant's abattoir. The respondent was employed in the abattoir as a full time casual cleaner, and at the time he was injured he was engaged in cleaning its boning room. Whilst walking backwards into the boning room pulling a heavy hot water hose, he slipped on the floor and fell, injuring his left shoulder and elbow. 27The respondent instituted proceedings against the appellants, alleging that they were negligent in that each had, inter alia, failed to provide him with a safe system of work or a safe method of carrying out his work. The proceedings were heard by the primary judge, Sidis DCJ, who on 23 March 2012 published her reserved judgment on liability and damages. Her Honour found in favour of the respondent on the issue of liability. Under the heading "ORDERS" she stated the following: 171 The plaintiff's loss and damage is assessed in the sum of $1,065,875.32. 172 The proceedings are adjourned to a date to be fixed to deal with issues arising out of s 151Z of the Workers Compensation Act 1987, costs and any claims for interest. 28Following the correction of an arithmetical error on 30 March 2012, the primary judge's final assessment of the respondent's damages was in the sum of $1,061,875.32. That figure was comprised of the following elements:

Non-economic loss (33 per cent of a most extreme case) - $171,500
Past economic loss - $258,352 together with superannuation of $28,418
Future economic loss -$298,503 together with superannuation of $32,835
Fox v Wood component - $14,886.64
Future domestic care - $172,536
Past out of pocket expenses - $64,844.68
Future out of pocket expenses - $20.000. It is to be noted that because of the outstanding s 151Z issue, her Honour was not then in a position to enter judgment for the respondent. 29Her Honour heard argument on the outstanding issues on 30 March 2012, when she delivered an ex tempore judgment dealing with the s 151Z issue as well as interest and costs. Her Honour found that as the respondent's whole person impairment ("WPI") exceeded 15 per cent, such that he qualified for work injury damages, s 151Z(2) applied to reduce his damages from $1,061,875.32 to $976,099.24. To that sum the primary judge added interest in the amount of $24,663.67, entering judgment for the respondent in the amount of $1,000,762.91. It will be necessary to refer further to this judgment with respect to the s 151Z issue as well as to some comments made by her Honour relating to the issue of future economic loss. 30Initially, the appellants challenged her Honour's finding with respect to liability, but that issue was abandoned when the appellants' written submissions were filed on or about 3 October 2012. Ultimately, the appellants challenged the primary judge's assessment of non-economic loss, past and future economic loss and future domestic assistance. Her Honour's finding with respect to the apportionment under s 151Z of the Workers Compensation Act 1987 ("WC Act") was also challenged. 31Before dealing with each of the heads of damages which are the subject of challenge on the appeal, it is appropriate to observe that her Honour dealt in some detail with the respondent's credit, finding at [97] of her reasons that she was not prepared to conclude that he was not a witness of credit. In fact, at [98] she expressly found that the respondent was a witness of credit.

[6]

The Respondent's Evidence 32At the time of the accident and at trial the respondent was aged 43 and 48 years respectively. He left school at the age of 14 years 9 months as he suffered from learning problems, apparently due to a condition known as narcolepsy but which, with medication, he has had under control for many years. In examination-in-chief he stated that over the years he had had hundreds of different labouring jobs but had never had an office job, and that the only inside job he had ever had was as a glazier. His jobs had included labouring work on farms, truck driving, carpet laying, tractor driving and for a while, horse training. 33The respondent married in 1990 but separated from his wife in 2003 and was apparently divorced by the time of trial. He had three sons, of whom the two eldest were at that time aged 23 and 22 respectively. At the time of trial his third son was in Year 12 at McCarthy Catholic College. He also had a foster son who at that time was 20 years of age and working as a farmhand in the Tamworth area. His second eldest son was working in the mines in Newcastle, whilst his eldest son was working on the docks in Perth. Only the youngest son was then living at home. However, for a period from 2003 to 2004, he was a "house husband", being the sole carer for all four sons and his nephew, who was then living with him. 34Of the 35 years since he had left school, the respondent stated that he had been unemployed and in receipt of the dole for roughly three to four years. He maintained that at the time of his injury he was working two jobs. For a period of 12 months before he commenced at the abattoir and up until the time of the accident, he was performing maintenance and hatchery work for a chicken processing business known as Baiada. He commenced work at Baiada around 1 May 2005 and at the abattoir in the week ending 9 August 2006, and worked continuously at the abattoir until the accident. Whilst working at Baiada he would commence at 5.00 am or 6.00 am and work for approximately eight to nine hours on a Monday, Tuesday, Thursday and Friday. He did not work at Baiada on Wednesdays, Saturdays or Sundays. He said that he worked for Baiada for approximately 38 hours per week. He was not challenged on this evidence. 35The respondent stated that he worked at the abattoir at night, commencing at about 5.00 to 5.30 pm and finishing around midnight. He worked on Monday, Tuesday, Wednesday, Thursday and Friday nights. He was able to sleep in on Wednesdays and had the weekends off from both jobs. 36The respondent considered that he was a good worker and stated that he was expecting to stay on permanently at the abattoir were it not for the accident. He further stated that, notwithstanding that he was working 76 hours a week at the two jobs, he considered that he was "getting through it pretty easy" as he had "plenty of time to catch up" on sleep on Wednesdays as well as on weekends. Accordingly, he "thought [he'd] be able to do it for a fair while". 37As I have noted, the respondent injured his left shoulder and elbow in the accident. As will appear from the medical evidence, he had three bouts of surgery on his left elbow but ultimately without any significant improvement. As at the time of trial, the respondent stated that his left shoulder was "not too bad", although it was painful if he lifted his left arm above his head. If he used that arm for any lengthy period of time then the shoulder would ache. 38The most serious injury was to the respondent's left elbow. As at the time of trial the respondent's left elbow would lock up periodically, causing pain and loss of movement which would sometimes take two to three days to resolve. Although after each bout of surgery he would start to gain some movement in his elbow, on each occasion the elbow again deteriorated, with accompanying loss of movement. Further, damage to the nerves in his elbow continued to cause tingling from the elbow down his arm to the tips of his fingers. The respondent also maintained that he had difficulty sleeping as he always had pain in his elbow, particularly when he rolled over onto his left side, when his arm would go to sleep. He would wake up in the middle of the night with a numb arm. 39When the respondent returned to the abattoir in or about early 2008, he was given light duties which involved scrubbing and cleaning windows, but as the work was repetitive and required him to work above his head, his left elbow deteriorated and he suffered pain in both the elbow and the shoulder, as a consequence whereof he ceased the work at the abattoir. He then sought out work at a honey farm in or about the middle of 2009 between bouts of surgery. He was employed to paint boxes and to place wire through the frames in order to create honeycomb. It required the application of "a fair bit of force" to pull the thin wire through the frame with his left hand whilst holding the frame with his right. This caused pain in his elbow notwithstanding that he was right hand dominant. The elbow joint would become sore and inflamed. As a consequence, the respondent ceased work at the honey farm after two weeks. 40The respondent stated that any repetitive work in which his left elbow was engaged would cause a deal of pain after a period of time and would result in inflammation on the following day, with the consequence that he could do little with it until the inflammation subsided. In particular, if he did anything that involved vibrations, such as using power tools or the lawnmower, it would cause a lot of pain. However, he had no choice but to mow the lawns around his home as his youngest son was allergic to freshly cut grass and was unable to assist him in that task. It would take him a couple of hours on one day and a further period on the following day to mow the lawns, as he could not do it for any lengthy single period, given that his elbow would swell up and become sore. He stated that if he could afford it, he would get someone else to mow the lawn for him. 41With respect to his domestic duties his evidence was as follows: Q. Apart from the difficulty with the vibrations that you have told us about and lawn mowing in particular and tools, what other things do you have difficulty with, if any, with say working firstly inside the house just doing normal old boring household (sic)? A. Most stuff I can get through, yeah, as I said there's bits and pieces where if you, you know, use your arm for a long period of time and you have - you have problems with it but the majority of the inside work, if I'm not too bad, if I've got work above my head cleaning windows or something like that, I'll have problems yeah but the majority of the stuff I'm pretty good at. Q. What about hanging clothes on the line and stuff like that? A. Again above my head I have a few problems using both arms hanging clothes on the line. 42The respondent agreed that he could go shopping, although he usually had his son carry any heavy bags. So far as lifting things was concerned, if he used his shoulders he could lift just about anything, but the continual bending of his left arm when lifting caused problems. If it was only a single item that he had to pick up and carry to his car he could do so, but if he had to carry 20 items to the car then he would have difficulties. 43As noted by the primary judge at [115] of her reasons, prior to the accident the respondent participated in sports such as rugby league, Oztag, golf and horse riding. As a result of his injuries he was unable to participate in any of these sports except Oztag, in which he now generally participated only as a referee. He had prior to the accident been refereeing for approximately 10 years, although not regularly. Since the accident he had spent the majority of the time on the sidelines barracking for his team. 44When asked how the accident had affected his life generally he responded: I haven't been good, originally it wasn't too bad, I always thought I'm going to be back at work, I'm going to be back at work, you know, everything was good, and then you know I sort of, once I realised I wasn't going to be back at work, it's you know it's - it gets a bit depressing; my kids were the ones originally but you know when you had no money and had to sell the family home sort of, it'd affect them a lot in that way, you know they couldn't have what they wanted and you know what they needed, we sort of struggled a bit after I first got injured, but now that I don't know what's - I'm uncertain of what's going to happen with work and you know, whatever, it's, yeah it's - it gets a bit harder. It's been a fair time now yeah. 45The respondent was cross-examined at some length. He agreed that he could touch his face but stated that he could not apply aftershave with his left hand. He had difficulty performing simple tasks such as doing up the top button of his shirt or putting on a tie. When cross-examined about what medication he took, he stated that more than 90 per cent of the time he would take pain killers to sleep, particularly Panadeine Forte®. When it was suggested to him that in an average six month period he would rarely take any form of pain relief, the following exchange occurred: A. Well each day and each week is different; one month I mightn't take nothing, six weeks I mightn't take nothing, but then the next month I might have to take it every night. It works on what happens during that period of time, my arm locks up and I - if my arm locks up then I may have to take it for a couple of weeks you know, straight, so it's hard to tell. It depends on what happens and you know even the weather, the colder weather is worse than the hotter weather so summer is, you know, better than what winter is and it's just - it's very hard to tell when I'm going to need painkillers. I try not to take them but you just never know. Everything changes. Q. I'm suggesting to you that the main problem that you've had with your left arm, and this is leaving aside let's say four weeks after each operation, has not been pain but it has been the range of movement, would you agree? A. No there's pain there all the time. Q. Do you say that you are in constant pain? A. In constant pain. Q. Every day? A. Every day. Q. Is that the reason that you are unable to work? A. Probably not no. Q. What's the reason that you're unable to work? A. At the moment it was the operations, my arm, I haven't been back to work to know what I can and can't do. Up until now it's been the pain and the movement, it's been a bit of everything, a deterioration in the joint. Q. So what's the reason that you can't work? A. Virtually everything put together, bits of everything put together, the pain that I feel, the locking up, when it locks up, deterioration, the operations were part, each time we thought things would be right I had to have another operation. It's a number of everything the reason I haven't been back to work or tried to get back into work and the fact that CRS, when I was light duties, haven't been able to find anything that I could do. 46The respondent agreed that when he had a driving licence, his ability to drive depended on the vehicle he was driving, as he had problems changing gears with his left hand in a manual vehicle. When questioned about playing Oztag, he stated that he would watch his youngest son play the game but had played himself only five or six times since the accident. 47The respondent was then cross-examined as to the type of work that he could do. As at the time of trial, he did not consider that he would be fit enough to perform the job of a foreman, although he accepted that there would be many jobs in which he would be able to work full-time, such as possibly driving a taxi. He stated that he had had vocational assessments by CRS Australia, which was a company that was supposed to rehabilitate him and find him work, but they had been unsuccessful. He denied that he could drive a forklift due to its vibrations, as forklifts do not have a suspension. When asked whether he could work full-time as a sales assistant, he said he did not know as he had worked as a labourer all his life and had never been involved in sales. Whether he could work in a hardware store such as Bunnings would depend on whether he was required to pack shelves or cart timber around or do any other form of heaving lifting. 48Tendered in evidence was a schedule of the plaintiff's income in the financial year commencing 1 July 2006 to the date of the accident, which included part of the period during which he worked for Baiada. The schedule indicated that he was last paid for working for Baiada on 11 October 2006, some two weeks before the accident. It was put to the respondent that he had in fact finished working at Baiada about two weeks prior to the accident, which he denied. The cross-examiner did not take that issue further.

[7]

The Medical Evidence 49The respondent attended Tamworth Base Hospital shortly after the accident, complaining of pain in his left elbow and shoulder. His arm was placed in a sling and he was advised to consult his general practitioner, Dr Montanari. After obtaining x-rays, Dr Montanari referred the respondent to Dr Doig, an orthopaedic surgeon, for specialist treatment. He performed arthroscopic surgery on the left elbow on 26 March 2007, but after some physiotherapy this treatment failed to produce acceptable results. The respondent was then referred to Dr J Hughes who performed further surgery at Royal North Shore Hospital on 16 April 2008. Again that surgery did not produce the expected results, whereupon Dr Hughes and Dr Tonkin jointly operated on the respondents elbow in June 2010, again without achieving any lasting improvement. 50In his report of 17 September 2010 Dr Doig described the respondent's injuries as follows: 1. Acromioclavicular joint dislocation at the left shoulder. 2. Permanent and significant aggravation of a pre-existing osteoarthritis at the left elbow resulting in multiple operative procedures including one by myself. 3. Dysaesthesia and neuropraxia affecting the sensory branch of the radial nerve below the elbow as a result of his surgical intervention. 51The respondent informed Dr Doig that he had osteoarthritis of his right elbow joint and had had previous surgery by a Dr Lennox in 2003 after he fell off a horse in circumstances which were not work-related. However, he had made a good recovery from this incident. He further informed Dr Doig that he had had no previous problems with his left shoulder, elbow or wrist prior to the accident. The respondent was not challenged in cross-examination on this evidence. 52All medical experts accepted that the respondent had some pre-existing degenerative changes and loose bodies in his left elbow. However, it was Dr Doig's opinion that the incident at the abattoir on 23 October 2006 directly gave rise to his left shoulder problem and permanently aggravated his pre-existing asymptomatic arthritic left elbow. He therefore opined that the respondent would be significantly restricted in executing the manual labour for which he had previously been trained. As at 17 September 2010, he had ongoing pain and stiffness in multiple joints which would restrict him in his manual dexterity and lifting. This included his left wrist, which was generally mildly tender with a slight reduction in range of movement compared to his normal right side. 53Dr Doig was further of the opinion that manual work was likely to increase the respondent's symptoms and pain. He considered that he would be significantly restricted in performing work as a cleaner as he was unable to use his left arm for anything other than minor tasks. Dr Doig considered that he was unfit to perform two-handed tasks involving power tools and that he would experience intense difficulty in returning to the workforce to perform manual work, including the farming work that he had performed in the past. He was of the opinion that the respondent's left upper limb injury was significant and that his left arm was in many ways dysfunctional. He noted that his working life had revolved around being able to execute manual duties and that, by reason of his limited education, he would experience real and genuine problems in returning to the workforce. Dr Doig noted that the respondent did not have any experience in performing a sedentary job. 54Dr Doig continued in the following terms: It is my opinion that these joints are unable to improve with time and in particular his left elbow will gradually deteriorate with the years. There is a likelihood and probability that his pain and symptoms will increase as he gets older by reason of the nature of the injury to the left elbow in particular. It is my opinion that the subject fall at work has entirely ignited his symptoms permanently and that the degenerative condition to the elbow joint was asymptomatic prior to his work fall as he was able to use his left arm without restriction. 55Finally, Dr Doig was of the opinion that the respondent would require ongoing analgesics and anti-inflammatory medication for the rest of his life to treat his symptoms and pain. He considered that he required assistance with heavier domestic tasks and in all probability would require further domestic assistance as his symptoms and complaints with respect to his left arm would increase with age, resulting in his requiring assistance with household tasks both inside and outside the home. Accordingly, he considered his prognosis to be guarded. It was Dr Doig's opinion that the respondent's range of movement in the left shoulder, elbow and wrist was unlikely to improve with time and in fact would probably deteriorate. As his nerve symptoms had failed to improve despite decompressive surgery, those symptoms were also unlikely to improve with time. 56On 3 May 2011 the respondent was seen by Dr Chris Oates, a consultant occupational physician who provided a report dated 10 May 2011. Under the heading "CURRENT STATUS", Dr Oates stated that the respondent could not lie on his left side in bed as his whole forearm went dead and it woke him up. His elbow was constantly painful and was worse with overhead use of the left arm. After his arm had gone dead it was difficult to get it moving again and he was not able to use it actively. He had a restricted range of movement in the elbow, which locked at times and released slowly over a couple of days. He felt some tingling down the radial side of the left forearm but no numbness of the arm during the day. His left shoulder was not too bad except with overhead use of the arm, such as when he was painting. At the time he was seen by Dr Oates, the respondent was not taking any medication apart from Panadeine Forte® about once a week. 57Under the heading "SOCIAL HISTORY", Dr Oates stated that the respondent was single and lived with his son, aged 17, who was a student. He noted that the respondent had difficulty with high-set housework but got through it by doing things in stages. He also had difficulty with mowing and high-set home maintenance work. He received some help from his son and his mother came around to help with the housework. Dr Oates diagnosed the respondent's injuries as: Acromioclavcular joint disruption of the left shoulder, intra-articular fracture of proximal ulna at the left elbow, and aggravation (i.e., permanent worsening) of the pre-existing condition of degenerative change and loose bodies in the elbow joint. 58Dr Oates was of the view that the respondent's left elbow condition would significantly restrict him in performing manual labour involving active use of his left arm. Continued physical use of the left upper limb would increase pain and might lead to further episodes of locking of the elbow and stiffness with further restriction of the range of movement, preventing him from performing physically arduous activity with his left upper limb. 59Dr Oates expressed the view "most definitely" that it was likely that the respondent's injury would deteriorate with the passage of time. Although there was a pre-accident degenerative condition of his left elbow with loose body formation, it was apparently asymptomatic. The significant forces involved in the fall on the elbow, which were sufficient to cause fracture and the aggravation that had occurred to the degenerative condition, would most likely result in acceleration of the rate of development of further degenerative change in the elbow, manifesting as increasing pain and stiffness with the passage of time and consequent reduction in the physical capacity of that limb. 60Dr Oates further considered that the respondent had an incapacity to perform heavier domestic duties both inside and outside the home, including home maintenance activities. This was due to his continuing left elbow problems of pain, weakness, wasting and restriction of the active range of movement. The requirement for domestic assistance was likely to increase in all probability because degenerative changes in the respondent's elbow were likely to occur at an accelerated rate within the next five years, particularly in view of the intra-articular location of the ulnar fracture. At the time he saw him, Dr Oates considered that the respondent required two hours per week of commercial care if gratuitous assistance from his son and mother was not available. Like Dr Doig, he also considered that the respondent's prognosis was guarded. It was clear that deterioration in the elbow condition was to be anticipated because of the accelerating effects of the injury on the pre-existing asymptomatic degenerative changes. 61On behalf of the appellants the respondent was seen by Dr Dalton, rehabilitation physician, and Dr Schutz, consultant surgeon. In his report of 20 April 2011, Dr Dalton considered that the respondent was fit to return to full-time work but would be best suited to light manual work, given that he had performed manual work all his life. However, he should avoid heavy lifting and strenuous or repetitive push-pull activities. The condition of his left shoulder did not limit him other than with repetitive or sustained overhead tasks. His functional restrictions were predominantly related to the condition of his left elbow. Dr Dalton did not consider that the respondent required any domestic or household assistance. 62As to the respondent's prognosis, Dr Dalton opined that his left shoulder had stabilised, leaving him with little more than mild pain and disability in relation to sustained or repetitive overhead tasks. Although he had osteoarthritis of the left elbow with moderate loss of mobility, that injury had also stabilised. However, his osteoarthritis of the elbow would deteriorate over time. He might need elbow replacement surgery but not for at least five to ten years. 63Like Dr Doig, Dr Dalton also noted that the respondent had suffered a previous injury to his right elbow joint some years ago which had left him with osteoarthritis in that elbow. He had a fixed flexion deformity and limited mobility in that elbow but those complaints had neither restricted his normal activities nor affected him in his previous employment. 64On 28 April 2011, the respondent was seen by Dr Schutz who provided a report dated 11 May 2011. He noted that the respondent's right elbow was arthritic with a reduced range of movement. However, he acknowledged that the respondent did not report any problems or difficulties with his right arm. 65Dr Schutz was of the opinion that the respondent had significant pre-existent left elbow pathology. He noted that his left elbow had been subjected to several operations and appeared relatively stable. However, there was a tendency to form loose bodies, severe arthritis and restriction in the range of movement. He considered that the prognosis for the left elbow was progressive deterioration due to loose bodies and arthritis which were clearly pre-existent but "with no evidence of contribution from the 2006 accident". 66Having noted that the respondent reported symptoms mainly in his left elbow, Dr Schutz considered that basic restrictions would be for him to work with his hands below shoulder level and to avoid forceful and rapid repetitive movements of the left elbow (and also the right elbow) due to the arthritis in each. He considered that the respondent would be fit for a varied lighter duties job such as bar work, particularly if he could mostly use his dominant right arm and use his left arm only in a minor supportive role. 67Finally, Dr Doig reviewed the respondent on 8 June 2011 and provided a further report dated 6 July 2011. He noted that he had been provided with the reports of Dr Schutz and Dr Oates referred to above. Upon examination the respondent informed him that his left arm symptoms had remained unchanged and that he was having persistent pain and clicking in his left elbow. The mechanical clicking had been becoming slightly worse. He described no wrist pain but persistent pain and clicking in his (presumably, left) shoulder. Dr Doig was in agreement with Dr Oates' opinion in support of the respondent's injuries. It was his opinion that there was likely to be further deterioration to the elbow joint in the next five to ten years in view of the pre-existing degenerative change. He therefore confirmed the diagnosis of the respondent's injuries set out in his earlier report of 17 September 2010. He continued: [The respondent] has sustained significant injuries arising from his fall on the 23rd October 2006, resulting in an incapacity to execute manual/physical work by reason of the nature of his injuries to his left upper limb and ongoing complaints. In my opinion, it is more likely than not, that his condition over time to the left arm will continue to deteriorate causing increasing pain and symptoms and his prognosis is therefore poor. It is likely his need for domestic assistance around his home will increase with the passage of time. 68I pause to note that each of Dr Schutz and Dr Doig assessed the respondent's injuries for the purposes of s 151Z and I shall refer to their evidence in this regard when dealing with that issue. For present purposes it is sufficient to observe that in his report of 6 July 2011, Dr Doig expressly disagreed with Dr Schutz's opinion "with respect to the WorkCover Guides", this being a reference to Dr Schutz's assessment of the respondent's WPI, which was relevant to the s 151Z issue.

[8]

The Primary Judge's Findings with respect to the Evidence of the Respondent and the Medical Experts 69After summarising (at [119]-[120]) the evidence of the respondent to which I have referred, the primary judge found (at [126]) that the respondent at the time of the hearing suffered from moderate to severe pain, restrictions on the range of movement of his left elbow and sleep disturbance. Her Honour further found that the respondent relied on pain killing medication and cortisone injections and physiotherapy at six-weekly intervals. At [127] she found that the medical evidence generally supported the respondent's complaints of symptoms. 70The primary judge summarised the evidence of, relevantly, Dr Doig, Dr Oates, Dr Dalton and Dr Schutz. As the appellants sought to rely heavily on the evidence of Dr Schutz, it is convenient to set out her Honour's comments thereon. At [136] she noted that Dr Schutz examined the respondent in April 2011. He differed from the other medical experts in his opinion that the respondent's condition was unrelated to his fall with the exception of some symptoms in his right shoulder (which appeared to be a mistake for his left shoulder). She recorded that Dr Schutz attributed the left elbow symptoms to pre-existing arthritis and the presence of loose bodies. Her Honour considered that it appeared that Dr Schutz was not fully informed of the respondent's medical history after the incident. He appeared to understand that the pain in the respondent's left elbow developed some time after the fall, and beginning as minor pain, became progressively worse. 71It is thus apparent that her Honour preferred the evidence of Drs Doig and Oates to that of Dr Schutz. This is understandable, particularly as, first, Dr Doig was the respondent's treating doctor whereas Dr Schutz was not and, secondly, Dr Schutz was the only consultant who considered that the progressive deterioration of the respondent's left elbow was unrelated to his accident in October 2006. 72At [137] her Honour found that Dr Schutz's understanding did not accord with the records of the general practitioner or the experts who treated the respondent. Her conclusions were set out at [138]-[139] of her reasons in the following terms: 138 The [respondent's] evidence, supported by medical findings, established that he suffered a moderate injury to his left shoulder with continuing minor symptoms. He suffered a moderately severe injury to his left elbow that aggravated and rendered symptomatic the pre-existing degenerative condition of the elbow. 139 The assessments provided by the occupational therapists confirmed that the [respondent] continued to suffer from a significant level of disability. 73In the light of the evidence referred to and accepted by her Honour, at [140] she assessed the respondent's non-economic loss at 33 per cent of a most extreme case and awarded him $171,500.

[10]

The Relevant Principles 75The relevant principles as to when an appellate court can intervene with respect to a trial judge's determination of non-economic loss were conveniently and recently summarised by the Court (Meagher and Barrett JJA) in Nemeth v Westfield Shopping Centre Co Management Pty Ltd [2013] NSWCA 298 at [11] in the following terms: In order to displace the judge's assessment that, in terms of s 16 of the Civil Liability Act 2002, the severity of the appellant's non-economic loss was 25 per cent of a most extreme case, the appellant must establish an error of principle, a misapprehension of the facts or a "wholly erroneous estimate of the damage suffered": Moran v McMahon (1985) 3 NSWLR 700 at 717-719, 726; Southgate v Waterford (1990) 21 NSWLR 427 at 440-441; Dell v Dalton (1991) 23 NSWLR 528 at 533-534. In Wilson v Peisley (1975) 50 ALJR 207, Mason J, after noting that the assessment of damages is "more like an exercise of discretion than an ordinary act of decision", said (at 214): "The settled rule, then, is that an appellate court will not disturb a primary judge's award of damages for personal injury unless it is convinced that he has acted on a wrong principle of law or that he has misapprehended the facts or that the amount of damages awarded is so inordinately low or so inordinately high as to be a wholly erroneous estimate of the damage suffered." 76To similar effect is the statement of principles by Meagher JA, with whom Beazley and McColl JJA agreed, in Mason v Demasi [2012] NSWCA 210 at [23]. To these authorities may be added the statement of Barrett JA, with whom Ward and Emmett JJA agreed, in Coles Supermarkets Australia Pty Ltd v Meneghello [2013] NSWCA 264 at [107] where his Honour observed that to justify appellate review of an award of damages for non-economic loss, the degree of affectation found (in the present case, 33 per cent of a most extreme case), must be so inordinately high as to be a wholly erroneous estimate of the degree of severity of non-economic loss.

[11]

Was the Primary Judge's Award of Damages for Non-Economic Loss Excessive? 77Although it is true that the respondent recovered from his three bouts of surgery, it is also true that that surgery made little difference to the nature and extent of his left elbow injury or to the symptoms from which he suffered as a consequence of that injury. The difficulty thus faced by the appellants is that, contrary to the evidence of Dr Schutz, the medical evidence accepted by her Honour (being, in particular, that of Dr Doig, corroborated by Dr Oates), was that the respondent's prognosis was poor and that it could be expected that there would be further deterioration in the condition of his elbow joint in the next five to ten years in view of the pre-existent degenerative change which had been aggravated by the injury. That aggravation constituted a permanent worsening of the condition of the respondent's elbow. 78It was not suggested that the respondent was a malingerer. Nor was he challenged on what the medical experts recorded in their reports as the history provided by him. It is apparent from her Honour's acceptance of him as a reliable witness that she accepted that he was suffering significant pain and limitations on his activities as a consequence of the injury to his left elbow and, to a lesser extent, his left shoulder. Although the injury was to his non-dominant arm, nevertheless he was a person who enjoyed sport and other physical activities in which he was no longer able to participate given the limitations and restrictions on the use of his left arm. In particular, her Honour accepted, and it was open for her to do so, that the respondent's condition would continue to deteriorate due to the permanent aggravation caused by the accident of the pre-existing degenerative condition of the left elbow and that as a consequence his symptoms, particularly pain, would not only continue but would also increase in their severity as the years progressed. 79As McColl JA, with whom Handley and Bryson JJA agreed, observed in Rabay v Bristow [2005] NSWCA 199 at [62], the exercise the primary judge was required to undertake in determining the severity of the respondent's non-economic loss is neither scientific nor normative. While it is not wholly at large, it does, nevertheless, involve an exercise of discretion with which the Court will rarely intervene. It is an evaluative process in respect of which minds may reasonably differ. 80In my opinion, it cannot be said that the primary judge's assessment of the severity of the damage suffered by the respondent as 33 per cent of a most extreme case was so inordinately high as to be a wholly erroneous estimate of that damage, although it was at or close to the top of the range. It follows that the appellants' challenge to her Honour's assessment of the respondent's non-economic loss should be rejected.

[13]

The Primary Judge's Findings 81At [141] the primary judge acknowledged that the respondent had had a chequered work history prior to the accident. She noted that his education was very limited (he left school in Year 9 when only 14 years 9 months) and that all his work over the next 29 years involved unskilled, manual labour. Not unexpectedly, he had some periods of unemployment. At [143] her Honour accepted that it was likely that he did not file tax returns between 2001 and 2005 because his income was at a level where no return was required. During part of that period, particularly after separation from his wife in 2003, he was the sole carer for his three sons and his foster son and was apparently receiving welfare payments. 82At [145] her Honour noted that the respondent had not had any employment of significance since the accident. He had worked for two weeks at the honey farm and had returned to the abattoir for a short time to clean windows before the aggravation of his symptoms caused by that work was such that he could not continue. Her Honour noted (at [146]) that all the medical practitioners considered that the respondent was fit only for light, non-repetitive work. I pause to repeat in the present context that it was not suggested that the respondent was a malingerer or that he was not motivated to return to work if he could find any in which he was able to engage without aggravating his symptoms. 83The primary judge's critical finding was at [144] where she found that at the time of the accident the respondent had been working two jobs, which she described as follows: He had been working in a chicken processing establishment for four days a week, with a break on Wednesdays, for about 18 months. He was employed by Fast Track five nights a week cleaning the second [appellant's] abattoir. He claimed that his income from these two sources amounted to $1,023 per week net. In both cases he was employed on a casual basis. In fact, the respondent's evidence was that whilst he was working both jobs he received "about a thousand dollars, thereabouts ... sometimes it varied". 84The appellants complain that there was no evidence to support her Honour's acceptance of the respondent's earnings from his two jobs at the time of the accident in the amount of $1,023 net per week. However, the source of that amount is to be found in the submissions of the respondent at trial. It comprised two elements. The first was his earnings at the abattoir, which, according to Fast Track's Report of Injury to its insurer, amounted to $688.56, being pay for 38 hours per week at a rate of $18.12 per hour. After allowance for tax, the respondent's weekly rate was $570 net. According to the respondent's schedule of income, on four occasions during the 12 weeks that he worked at the abattoir before the accident, he earned $570 net per week. In the other weeks he earned less than that amount, except on one occasion when he earned $600 per week. In any event, the average of his income over the 12 weeks he worked at the abattoir was $508.58 net per week. 85With respect to his earnings at Baiada, the schedule of the respondent's income indicated that between 9 August 2006 and 11 October 2006 he received, on average, $453 net per week. When one adds that figure to $570 net per week, the result is $1,023 net per week. On the other hand, the average of the respondent's earnings per week over the whole of the period shown on the schedule of his income from Baiada (5 July 2006 and 11 October 2006) is $489.38 net per week, which when added to his abattoir earnings of $508.58 net per week totals $997.96, which is consistent with the figure of approximately $1,000 per week which the respondent gave in evidence. 86At [147] of her reasons the primary judge found that the respondent's claim for past loss of earnings was reasonable. It was based, she said, on his income at the time of his injury, namely $1,023 net per week. After allowing for the sum of $1,400 which the respondent had earned at the honey farm and an amount representing 26 weeks of income to allow for a term of imprisonment and a period thereafter in which to regain employment (the respondent was in prison for three months for driving whilst disqualified from holding a licence), the primary judge allowed the sum of $258,352 for past economic loss together with superannuation (agreed at 11 per cent) of $28,418.

[14]

The Appellants' Submissions 87The appellants' submissions with respect to past economic loss and my response to them may be summarised as follows: (a) The schedule of the respondent's income did not record any wages paid to him with respect to his work at Baiada in the weeks ending 18 October and 25 October 2006. It was therefore submitted that he must have ceased to work at Baiada two weeks before his accident at the abattoir. As noted at [48] above, that suggestion was made to the respondent but he flatly denied it. It was taken no further by the cross-examiner. As her Honour considered that the respondent was a reliable witness, she was entitled to find that in fact he was working two jobs at the time of the accident notwithstanding the gap in the schedule of income. (b) It was submitted that the primary judge was in error in finding that the respondent was earning at the rate of $1,023 net per week at the time of the accident. The appellants' primary submission was that the respondent was not working two jobs at the time of the accident, a proposition which the primary judge implicitly rejected. As I have stated, in my view, her Honour's conclusion discloses no error. It was then submitted that the evidence did not support a figure of $1,023 net per week as the source of that figure was not apparent. I have explained its source at [84] and [85] above. The appellants' submission overlooks the evidence there referred to, and accordingly must be rejected. (c) It was submitted that in the nine week period the respondent did hold down two jobs he only earned an average of $905 net per week. This submission assumed that the respondent was not working for Baiada in the two weeks before the accident, a proposition which the primary judge rejected. However, if one confines the exercise to the period from 9 August 2006 to 11 October 2006, the respondent's average earnings at Baiada as indicated by the schedule of income were $453 net per week over nine weeks, whilst his average earnings at the abattoir were $506 (in round figures) net per week over ten weeks, a total of $959 net per week. (d) The appellants submitted that, in any event, there was no proper basis for her Honour to assume that the respondent would have worked two jobs (76 hours per week) for 5.5 years. Working both jobs would have constituted a punishing routine to keep up for that length of time. The difficulty with this submission is that there was no challenge in cross-examination to the respondent's evidence that he considered that he would have been able to handle the two jobs but for his injuries. However, it was also submitted that no allowance was made by her Honour for the respondent to take even one week's holiday or one day's sick leave during the whole of that period. This last submission is not without merit. (e) It was submitted that there were other factors that made it unlikely that the respondent could have held both jobs for that period of time. The first was that he was in gaol for three months from 19 January 2010 to 18 April 2010. The primary judge acknowledged that fact and made an extra three months' allowance after the respondent was released on parole to enable him to reinstate his employment. It was submitted that it was unlikely that the respondent would have been able to recover the two jobs in which he had been engaged before the accident (there being nothing to suggest that, even if the accident had not occurred, he would not have served the term of imprisonment). I note that this proposition was not put to the respondent in cross-examination. Secondly, it was submitted that her Honour's description of the respondent's work history (at [154]) as "chequered" was a very benevolent understatement, given that he had a long history of unemployment and underemployment which suggested that he was unlikely to have remained in two jobs for very long. There is some force in these submissions. (f) Furthermore, it was submitted that the primary judge made no allowance for adverse contingencies: the respondent might have lost one or even both of his jobs, or his hours might have been reduced, or he might have become sick. Accordingly, her Honour took "one unprecedented portion of the respondent's life when he might have been working two jobs" and treated that as though it was a certain basis upon which damages for past economic loss could be calculated for 5.5 years. Again, there is force in this submission.

[15]

The Respondent's Submissions 88The respondent submitted that there was evidence to support the figure of $1,023 net per week, being that to which I have referred at [84] and [85] above. To that evidence the respondent added Fast Track's payroll report with respect to the respondent for the period from 8 May 2005 to 8 October 2006, a period of 75 weeks, which revealed an average net weekly income of $458. If one added to that his average net weekly earnings of $509 per week for the 12 weeks he worked at the abattoir, then his total average net weekly earnings were $967. 89It was further submitted that there was no reason why the respondent would not have continued to work at the abattoir as he had been described by his former boss, a Mr Jobson, as a "very good worker". Furthermore, although at the time of the accident his net weekly earnings at the abattoir were $570, it was contended that at the date of trial the same job paid $720 net per week plus superannuation of $80 and a union fee of $10. However, this last submission was based upon the evidence of an employee of the first appellant at the time of trial, Mr Morris, and was undermined by the fact that the hours of Mr Morris' shift had changed since the accident so as to result in his being paid wages at an apparently higher night shift rate. 90As to the submission that working 76 hours per week on two jobs for 5.5 years would be oppressive, the respondent pointed to his evidence that he found doing the two jobs "pretty easy" given the times at which he was working and the periods that he had off in order to rest. Moreover, as already noted, it was never put to the respondent in cross-examination that he would be either unwilling or unable to keep the two jobs. 91In response to the appellants' submissions with respect to contingencies, it was contended that there are no "general" contingencies applicable to past economic loss, damages for which should only be adjusted up or down according to the evidence as to what has actually occurred between the date of injury and the date of trial. Furthermore, there was no evidence that the respondent's work would dry up and there certainly was evidence that the abattoir was still operating in 2012 as it was in October 2006. Finally, it was never suggested to the respondent that he would reduce his hours.

[16]

Was the Primary Judge's Award of Damages for Past Economic Loss Excessive? 92In my opinion the evidence supported the finding by the primary judge that at the time of the accident and for at least 12 weeks prior thereto the respondent had been working two jobs and earning approximately $1,023 net per week. Although her Honour made allowance for the period during which the respondent was imprisoned for driving whilst disqualified from holding a licence and for a further period of three months to enable him to become re-employed, in my view the appellants' submission that her Honour should have made a greater allowance for the contingency that he might not have been able to regain and/or maintain two jobs for what was a lengthy period of 5.5 years should be accepted. 93I do not accept the respondent's submission that there is, in effect, no room for making allowance for contingencies when assessing past economic loss. I accept that the respondent would, subject to those contingencies, have continued to be employed at the abattoir, but it does not follow that he would necessarily have regained his work at the hatchery or obtained some other second job for the whole of the period the subject of the present assessment. 94Although I am prepared, as I have indicated, to accept her Honour's figure of $1,023 net per week as the income which the respondent was earning at the time of the accident, in my view the amount assessed by her as the respondent's past economic loss should be discounted to take account of the contingencies to which I have referred. In this respect I bear in mind that the respondent's earnings may well have increased as a consequence of wage rises over the period of 5.5 years between the accident and trial. 95Taking into account the circumstances to which I have referred, in my view her Honour's award in the sum of $258,352 should be discounted by 25 per cent to $193,764, together with superannuation at the agreed rate of 11 per cent of $21,314, a total of $215,078.

[18]

The Vocational Assessments 96Vocational assessments were carried out by the Commonwealth Rehabilitation Service (CRS Australia) in order to determine the type and extent of employment which the respondent might be able to undertake notwithstanding his injuries. In her report of 2 July 2008 Mrs Jacqui Ross of CRS Australia, a psychologist, recommended that the respondent seek to obtain employment as a bar attendant, a heavy truck driver, a store person/forklift operator or a sales assistant. However, an assessment would need to be carried out to confirm the respondent's physical suitability for any of those occupations. This was not done due (according to the respondent as recorded by Ms Zeman (see below)) to his medical instability and persistent symptom presentation. 97The respondent was reassessed on 26 November 2010 by a Ms Amanda Bell of CRS Australia, an occupational therapist, who in her report dated 20 December 2010 expressed the opinion that the respondent should be able to return to work in some capacity provided, in effect, that the job was in the "sedentary" work category, such as that of a console operator or bar worker. She nevertheless recommended that the respondent adhere to his restrictions and not exceed his pain threshold while completing physical tasks. However, Ms Bell noted that there were barriers to the respondent's returning to work, as he had had a very limited education and his transferable skills involved labour-intensive occupations. 98The respondent was assessed on behalf of the appellants on 22 September 2011 by Ms Sanja Zeman, an occupational therapist. In her report dated 26 September 2011, she noted that the respondent demonstrated an inability to tolerate loading of his left upper limb, either physiological or weighted, and that he should avoid postures at or above shoulder level. The tests that she carried out indicated a deficient level in word reading within his normed age group as well as a deficient level in spelling within that same group. On the other hand, he had an average level in arithmetic within his age group. The vocational options which Ms Zeman considered available to the respondent were: light machine operator; truck driver; sales assistant and sales person; handyperson; labourer (e.g. road traffic controller); bar attendant; and light factory process worker. 99However, it is apparent from Attachment B to Ms Zeman's report that a number of the above options were either inappropriate given the respondent's physical limitations or unavailable in the Tamworth area. For example, she noted that at the time of her report there were limited employment opportunities in Tamworth for machine operators, handypersons and bar attendants. Advertised truck driver positions required applicants to be multi-skilled and experienced. Sales assistants were required to have completed Year 9 or 10. It appears that the respondent left school before completing Year 9. A factory process worker in a glass factory required manual lifting capability whereas a worker in a poultry farm was required to be "physically fit".

[19]

The Primary Judge's Findings 100After noting (at [150]) the views of Ms Ross and Ms Bell of CRS Australia, at [151] her Honour observed that Ms Zeman had put forward prospects of employment of the respondent in the seven categories referred to at [98] above. However, her Honour noted that none of these occupations appeared to be of the sedentary nature that Ms Bell considered was necessary and some were clearly inappropriate as they required the use of machinery, motor vehicles or power tools that created vibrations which the respondent could not tolerate. Others required further investigation as to the extent to which part of the work involved heavy lifting or loading. So much is borne out by the summary in the preceding paragraph of Ms Zeman's Attachment B. 101However, at [152] her Honour accepted that the respondent did retain some residual earning capacity, observing that realising that capacity nevertheless presented problems. She noted that the respondent accepted that some retraining was required, but observed that the limited level to which he was educated would disadvantage him in this respect. Even if he was retrained, the respondent would need to find employment at the age of 48 years and with a disability that most likely would limit him to part-time work. 102The primary judge then recorded (at [153]) the respondent's contention that since his income at the time of his injury was close to the figure for average net weekly earnings ($1,115), his future loss of income should be based on that figure. However, her Honour noted that his income at the time of his injury was a result of a working week of more than 70 hours. At [154] she stated that she did not think that this reflected the respondent's most likely future prospects but for the injury. She considered that an assessment based on $600 net per week was more realistic taking into account that: 1 He was advancing in years and, with the diminution in his responsibilities to his family when his youngest son became independent, his capacity to work such hours and his financial needs would be reduced. 2 There is some prospect, although limited, that he will realise some of his residual income earning capacity. 3 His past employment history was somewhat chequered. 103Accordingly, her Honour allowed the sum of $298,503 after applying the standard 15 per cent discount for vicissitudes, together with $32,835 for superannuation at the agreed rate of 11 per cent.

[20]

The Appellants' Submissions 104In his written submissions the respondent acknowledged that her Honour's assessment of his future economic loss involved "something of a broad brush approach". With respect, that seems an understatement. 105Consistently with that concession, the appellants submitted that it was simply not clear from her Honour's reasons how she arrived at the figure of $600 net per week. It was submitted that she must have had in mind some (unexpressed) figure for the likely future earnings of the respondent which she then discounted by some (unexpressed) amount to take account of his advancing years. Her Honour then took that (unexpressed) figure and further discounted it by some (unexpressed) amount to take account of the respondent's (unexpressed) residual earning capacity. Finally, that (unexpressed) figure was further discounted by an (unexpressed) amount to take account of his "somewhat chequered" employment history. It seems to be common ground that her Honour's calculation was based upon the respondent working to the age of 65 years, a period of 17 years from the date of trial (he was then 48). It was submitted that her Honour's approach disclosed both legal and factual errors. 106The matter was complicated by the ex tempore judgment of 30 March 2012 ("the ex tempore judgment") where, as the appellants submitted, her Honour seemed to be saying that for the purposes of future economic loss the respondent would have earned $600 net per week but for his injury. Her actual words were that that amount was "his likely income". It was submitted that her Honour then went on to say that she applied no discount for the three considerations which she articulated at [154] of her primary judgment. However, this does appear to be so, as her Honour stated in the ex tempore judgment that she had awarded the respondent future economic loss at the rate of $600 net per week: on the basis that it was unlikely that he would return to income earning employment, taking into account the matters itemised in paragraph 154 [of the primary judgment]. 107There is well-established authority to the effect that once a judge has delivered an ex tempore judgment and pronounced final orders based thereon, it is not open for him or her to publish subsequent reasons that differ from, or which seek to correct or add in any substantive way to, the ex tempore reasons: Todorovic v Moussa [2001] NSWCA 419; (2001) 53 NSWLR 463 at [41]-[47]; Talbot-Price v Jacobs [2008] NSWCA 189 at [11]-[12]; Spencer v Bamber [2012] NSWCA 274 at [137]-[145]. However, these principles do not apply to the present case where, first, her Honour's primary judgment was not given ex tempore but had been reserved and, secondly and more significantly, final orders were not made in that judgment but were only pronounced at the conclusion of the ex tempore judgment. In these circumstances the latter judgment was, in effect, a continuation of the former judgment. 108In any event, I do not consider there to be any significant inconsistency between [154] of the primary judgment and the paragraph of the ex tempore judgment to which reference has been made. It is therefore appropriate to determine whether there has been an error on the part of her Honour by confining that issue to the relevant passages in her primary judgment. 109The appellants submitted that the primary judge was bound to apply s 13 of the Civil Liability Act 2002. Although explicit reference was made to the section during the course of addresses, her Honour did not refer to it in her reasons. However, it is now well-established that although s 13 is intended to promote intellectual rigour, if the result could have been properly reached had that section been applied, the failure to do so should not of itself bring about a new trial or a reassessment: Nominal Defendant v Lane [2004] NSWCA 405 at [67]. In any event, the appellants acknowledged that, taking a beneficial view of the findings of her Honour in the primary judgment, compliance with s 13(1) might be inferred. 110However, it was submitted that her Honour had failed to comply with s 13(2) and (3). As already noted at [105] above, it was submitted that considerations critical to the calculation of future economic loss were left unexpressed and could only be reconstructed by guesswork. 111In my opinion, a fair reading of her Honour's reasons at [141]-[154] with respect to the issue of loss of earning capacity reveals that she did essentially state the assumptions on which her award for future economic loss was based. Furthermore, at [155] her Honour complied with s 13(3) by stating the percentage by which her assessment of that loss was to be adjusted for vicissitudes. I do not consider that her Honour's failure to refer to s 13 in terms bespeaks error. 112The appellants then submitted that the primary judge had overstated the probable earning capacity of the respondent but for the accident. As noted at [105] above, it was submitted that her Honour's starting figure in assessing the probable earning capacity of the respondent must have been a figure higher than $600 net per week. If so, for the reasons submitted on the issue of past economic loss, that starting figure was too high. However, for the reasons I have articulated with respect to that head of damage, I do not accept the appellants' submission that a figure of $1023 could not be supported by the evidence, especially 5.5 years after the accident. 113The appellants nevertheless submitted that her Honour should have found that the respondent was only working one job at the time of his accident and thus earning roughly $500 net per week. Further, it was contended that there was a strong evidential basis for thinking that that amount was about the proper average earnings for the respondent as derived from his taxation returns. In this respect, it was said that in the tax year 2004-2005 his taxation return revealed that he only worked for 19 weeks and earned only $3,633. In the tax year 2005-2006 it was asserted that he earned only $25,079, having worked for 49 weeks during that year, which averages out at $512 per week. However, the tax returns were not included in the Blue Book and I therefore infer that they were not tendered. The figures referred to were put to the respondent in cross-examination but he was not able to confirm their accuracy. It is therefore not clear whether those figures are net or gross. 114But even if these figures were accepted, it would still be necessary to factor in the rate of earnings of the respondent in the tax year 2006-2007, although they ceased at the time of his accident on 23 October 2006. I have already referred in some detail to what he was earning during that period, particularly over the last 12 weeks prior to the accident when he was working two jobs. 115Nevertheless, the appellant submitted that if a figure of $500 net per week was taken, then it was required to be discounted by the three factors referred to by her Honour at [154], with the result that the basal figure for the calculation of future economic loss would be "much much lower than $600 per week". 116The appellants further submitted that her Honour had understated the respondent's residual earning capacity. The primary judge found that there was some prospect, although limited, that he would realise some of his residual income earning capacity. She referred to that capacity in dealing (at [149]-[151]) with the vocational assessments which I have summarised at [96]-[98] above. This notwithstanding, it was submitted that the reality was that the respondent only had a partial disability affecting his non-dominant arm. He could still use his left arm, although it was accepted that he could no longer undertake certain heavy, two-handed tasks. It was asserted that there was "a great deal of evidence" suggesting that the respondent had a substantial residual earning capacity which could have allowed him to earn a sum equal to his pre-injury earnings. The evidence upon which reliance was placed for this proposition consisted of the medical reports and the vocational assessment reports to which I have referred above. 117Finally, the appellants submitted that her Honour's allowance of 15 per cent for vicissitudes was too low and should have been in the order of 50 per cent. This was because, as the primary judge recognised, the respondent had a "chequered" work history, and in fact throughout his life his employment seemed to have been irregular, short term and unstable. It was submitted that the instability of the respondent's work history should have led her Honour not to calculate future economic loss upon the basis of continuous employment until the age of 65, but if her Honour did so, then a much higher than usual discount should have been applied for contingencies.

[21]

Did the Primary Judge Err in Assessing Future Economic Loss? 118In Kallouf v Middis [2008] NSWCA 61 the Court (comprising McColl JA and Hall J) set out at [46]-[61] the principles guiding the assessment of future economic loss. It was emphasised that what is involved is an assessment of the injured party's loss or diminution of earning capacity rather than loss of earnings, provided that that loss or diminution is productive of financial loss. True it is that where incapacity is established at the date of trial, what is to be evaluated is the extent of the possibility that the plaintiff may not work in the future or may lose time from work and allowance must be made in the determination of compensation in respect of that possibility. That evaluation will depend upon the evidence. However, it is for the defendant who contends that the plaintiff has a residual earning capacity to adduce evidence of what the plaintiff is capable of doing and what jobs are open to him or her: see also Mead v Kerney [2012] NSWCA 215 at [25]-[27] per Macfarlan JA, McColl JA and Sackville AJA agreeing. 119As the assessment of damages for future economic loss involves reference to future or hypothetical events, it has been described as a "process of estimation of possibility" which is "necessarily an imprecise matter of estimation, carried out within broad parameters". Nevertheless, the onus lies upon a plaintiff to adduce evidence to establish not only the extent to which his or her earning capacity has been diminished but also the financial loss that that will cause. In that assessment, past earnings are a relevant consideration. 120What undermines the appellants' submissions to a large degree is the rejection of their contention that the respondent was only working one job at the time of his accident. As I have already indicated, her Honour found that he was working two jobs, and in my view that was a finding that was clearly open to her, given that she had accepted the respondent as a credible witness. 121Furthermore, there is nothing inconsistent with the primary judge's assessment of future economic loss in her Honour having awarded past economic loss generally upon the basis that the respondent would have continued to work two jobs, provided that the possibility of his not doing so was duly reflected in an appropriate discount. Equally, it was appropriate for her Honour to reduce the amount by which she was to calculate the respondent's future loss of earning capacity in the light of three factors to which she referred at [154] of her reasons. In particular, she acknowledged that he was advancing in years with a diminution in his responsibilities to his family once his youngest son became independent, so that his capacity to work some 70 hours per week in two jobs and his financial need to do so would be reduced. Quite properly, her Honour was therefore not prepared to adopt a future earnings figure that assumed that the respondent would continue for the rest of his working life to perform two jobs. 122It is apparent that her Honour took a global approach to determining an amount which could be said to represent the respondent's future financial loss as a consequence of his reduced earning capacity, given that in doing so she took into account both his limited residual earning capacity and his past employment history, which she characterised as "chequered". In other words, it is apparent that the primary judge took into account all the factors which the appellants now complain she failed to consider or to consider adequately. What was involved in her assessment was an evaluative judgment in adopting a figure which took into account the various factors to which the appellants made reference. 123It is true that her Honour did not express the reasoning process by which she arrived at the figure of $600 net per week. In particular, she did not expressly refer to the starting figure from which she derived that amount. Nevertheless, it is not unreasonable to infer from her remarks at [153] and the first sentence of [154] that that starting figure was the amount the respondent was earning at the time he was injured. She then went on to discount that figure to take account of the three factors referred to at [154]. In so doing she did reveal the basis of the figure of $600 net per week, even though she did not seek to quantify the extent to which each of those factors contributed to the adopted figure. In my view, this approach in the circumstances does not bespeak error. 124The appellants' real complaint is that her Honour failed to give greater weight to the respondent's residual earning capacity and chequered work history than she apparently did. But there is no doubt that her Honour did give those factors weight, and the appellants have not demonstrated that she was in error in adopting the adjusted figure of $600 net per week as a realistic assessment of the financial loss of the respondent as a consequence of the diminution of his future earning capacity. 125I should add to this my rejection of the appellants' submission that the primary judge understated the respondent's residual earning capacity. First, the appellants did not adduce any evidence (the evidentiary onus being upon them) which addressed the question of post-injury rehabilitation or occupational training of the respondent to equip him for the types of work suggested by Ms Zeman in her report of 26 September 2011. Secondly, although the necessity for retraining was apparent from Ms Ross' report of 2 July 2008 and that of Ms Bell of 20 December 2010, the appellants adduced no evidence that any such retraining was offered to the respondent. 126Thirdly, the evidence of Ms Bell, which the primary judge appeared to accept and which was consistent with other expert testimony, was that the respondent would not be physically suited for work that was labour intensive in nature. Fourthly, the probabilities were that the respondent would be limited to light manual work, but with significant limitations due to his inability, without pain, to use his left arm above shoulder height or to perform any two-handed tasks which involved vibration. As Dr Doig opined, he would be unable to use his left arm for anything other than minor tasks. 127In the foregoing circumstances, the evidence clearly justified her Honour's finding that the respondent's residual earning capacity was limited. That may well have been an overstatement of the respondent's capacity given Dr Doig's opinion that the respondent "would experience real and genuine problems getting back into the workforce" given his age, his lack of both experience and education and the ongoing deterioration of his left elbow with increasing symptoms as he aged. 128It should be noted that in finding that the respondent's residual earning capacity was "limited", her Honour did not attempt to place a percentage figure on that capacity as she was required to do by s 13(3) of the Civil Liability Act 2002. On one view of it, that was an error calling for a reassessment of the respondent's future economic loss by the Court or, if that was not possible or practicable, ordering a new trial on the issue of future economic loss or even on damages generally. 129However, this Court (Giles JA, Ipp and Tobias JJA agreeing) held in Nominal Defendant v Lane [2004] NSWCA 405 at [67] that a failure to comply with s 126 of the Motor Accidents Compensation Act 1999, which is repeated in s 13 of the Civil Liability Act, did not necessarily require a reassessment or new trial if otherwise the result reached by the primary judge was open to her. This approach in Lane has been affirmed in State of New South Wales v Zerafa [2005] NSWCA 187 at [143] per M W Campbell AJA, Spigelman CJ and Tobias JA agreeing, and Guides Australia Inc v McMartin [2006] NSWCA 20; (2006) Aust Torts Reports 81-828 at [183]-[185] per M W Campbell AJA, Handley JA and Young CJ in Eq agreeing. 130In any event, the difficulty is assessing an appropriate percentage to attribute to the respondent's earning capacity given her Honour's findings at [150]-[152] coupled with my remarks at [125]-[127] above. To those references can be added the view of Dr Doig to which reference is made in the last two sentences at [53] above and the fact that the respondent was, to all intents and purposes, unable to perform any paid work for the 5.5 years between accident and trial. These factors, when taken together with the medical evidence as to the future deterioration of his left elbow, reveal a situation where the appellant has not identified any practical (as distinct from theoretical) opportunities that were available to the respondent in the past of which he failed to avail himself, or any such opportunities that might arise in the future in a town the size of Tamworth. In these circumstances, as was the case in Mead v Kerney (see at [37]), to attribute a percentage chance to the prospect of the respondent obtaining an appropriate job in the future would involve mere speculation. As in Mead, there was no tangible basis in the evidence for the assessment of a percentage which was meaningful. 131Although in these circumstances a new trial might be suggested, under the Uniform Civil Procedure Rules 2005, r 51.53 a new trial may only be ordered where a substantial wrong or miscarriage has been occasioned by, in this case, the failure of the primary judge to comply with s 13(3). In my view, the approach of her Honour, even if technically incorrect, did not occasion to the appellant a substantial wrong or miscarriage of justice that would warrant the ordering of a new trial, even one limited to future economic loss. 132As to vicissitudes, the appellants' submission that her Honour should have adopted a figure in the order of 50 per cent cannot be sustained. There is no doubt that there was a period when the respondent was only working one job and earning in the vicinity of $500 net per week. There was also a period when he was earning no income as he was looking after four children, particularly after he separated from his wife. His evidence was that he had "had nearly hundreds of different labouring jobs". I do not find that fact to be out of the ordinary, given that the respondent worked as a labourer over the course of some 30 years. Nevertheless, her Honour took into account that his employment history was "chequered" in determining that an appropriate figure upon which to base his future economic loss was $600 net per week. To discount that figure further by increasing the discount for vicissitudes would result in double counting. 133In my view, therefore, there is no proper basis for interfering with her Honour's assessment of the respondent's future economic loss, either with respect to her adoption of the figure of $600 net per week or the discount of 15 per cent for vicissitudes. The challenge to the primary judge's award of damages for loss of future earning capacity should be rejected.

[23]

The Primary Judge's Findings 134The respondent made no claim for past domestic assistance but claimed the cost of care provided on a commercial basis in the future. At [158] her Honour noted the respondent's evidence that he managed to perform most of his housework but had difficulty with overhead work such as cleaning windows and hanging out washing. The respondent agreed that he could carry loads within limits and that his son carried heavy shopping bags. He continued to mow his lawn but was taking longer to do it and suffering pain as a result. 135Her Honour then referred to the evidence of the two occupational therapists who addressed this issue, Ms Wolfgang (on behalf of the respondent) and Ms Zeman (on behalf of the appellants). At [160] she noted the evidence of Ms Wolfgang, who recommended that the respondent be provided with paid assistance with lawn mowing and yard and house maintenance as well as heavy housework and laundry. Ms Wolfgang asserted in arriving at her assessment she had regard to the respondent's physical capacity as well as the opinions of Drs Doig and Oates, which included a prognosis for deterioration in his condition. Her recommendation was that the respondent receive 4.5 hours of assistance per week at hourly rates which totalled $195 per week. This was on the basis that gratuitous assistance would not be available. 136At [162] the primary judge referred to the evidence of Ms Zeman, who assessed the respondent in September 2011. Her Honour noted that Ms Zeman's conclusions were similar to those of Ms Wolfgang, although she assessed the respondent's needs at a lower level, allowing 2.87 hours per week for assistance with housework and heavy household and yard maintenance. 137At [163] her Honour stated that she did not consider that three hours per week was sufficient to deal with the respondent's needs. At [164] she accepted the factors identified by Ms Wolfgang and, in particular, the probability that the respondent's needs would increase as his elbow condition deteriorated. To this her Honour added the consideration that the respondent would not always be in a position to rely on the assistance currently provided by his youngest son. On this basis her Honour accepted the respondent's claim for domestic care of 4.5 hours per week (erroneously stated by her Honour to be 5.5 hours) and, therefore, allowed the sum claimed of $172,536. That figure was based on a life expectancy of 26 years and a multiplier of 884.8. No complaint is made about the mathematics.

[24]

The Evidence 138As I have indicated, the evidence of Dr Doig, which her Honour accepted, was that the respondent's left elbow would gradually deteriorate and that there was a likelihood or probability that his pain and symptoms would increase as he aged. Dr Dalton also opined that the osteoarthritis in the respondent's left elbow would deteriorate over time. However, it was common ground that the respondent had a pre-existing degenerative condition in his left elbow which was asymptomatic at the time of his accident but which was aggravated by his accident so that it became symptomatic. 139In his report of 17 September 2010, Dr Doig opined that it was likely that the respondent would have a need for domestic assistance around his home which would increase over the passage of time. Dr Oates was of a similar view. He noted that the pre-existing degenerative condition affecting the elbow was asymptomatic at the time of the accident and that it was the significant forces involved in the respondent's fall on that elbow which caused the aggravation to that condition and which would most likely result in acceleration of the rate of development of further degenerative change, manifesting as increasing pain and stiffness with the passage of time and consequent reduction in physical capacity with that limb. Accordingly, he opined that the respondent's requirement for domestic assistance was likely to increase as the degenerative changes in his elbow deteriorated at an accelerated rate in the future, particularly within the next five years. At the time of his report of 10 May 2011 he considered that the respondent required two hours per week of commercial care if gratuitous assistance from his son and mother was not available. 140Ms Wolfgang assessed the respondent on 22 June 2011. In her report dated 24 July 2011 she commented that the respondent's inability to work above shoulder height with his left upper limb, inability to tolerate vibration through that limb and inability to manage repetitive left upper limb activities were the limiting factors on his performance of garden/yard and house maintenance tasks. She considered that it would be reasonable for the respondent to receive paid assistance with lawn mowing and yard maintenance tasks as he had performed those tasks prior to his injury. It would also be reasonable for him to receive assistance for house maintenance tasks on an occasional basis. She estimated that the respondent required an average of 2 hours per week for lawn mowing, garden/yard maintenance and house maintenance, taking into account that lawn mowing would be less frequent in winter but more house maintenance tasks would be undertaken. 141Ms Wolfgang also recommended that the respondent receive a total of 2.5 hours per week for internal domestic assistance, of which 2 hours per week would be for cleaning tasks including vacuuming, mopping, bathroom cleaning and window cleaning and 0.5 hours per week for laundry tasks for larger items. She then indicated the hourly rates for such assistance provided by two domestic assistance service providers in Tamworth, which were $37.95 per hour and $39.60 per hour. With respect to the two hours per week for external assistance such as yard maintenance, house maintenance and lawn mowing, she also referred to the rates of two agencies that provided such services in Tamworth, both of which were $50 per hour. She thus took that figure and added to it the lower of the two domestic assistance rates which she had quoted ($37.95 per hour, which, multiplied by 2.5 hours per week, amounted to $94.87 per week). The total, rounded to the nearest dollar, was $195 per week, which is the amount her Honour adopted. 142Ms Zeman was of a different view. She stated in her report that the calculation of assistance requirements was based on current presentation and predicted future needs in line with diagnosis, prognosis and professional opinion. She noted that her calculations related to the specific current and ongoing assistance/care requirements directly related to the functional sequelae of the respondent's accident. Her calculations were based on functional deficits irrespective of current living arrangements. Accordingly, she proposed 0.62 hours per week provided over 8 hours every three months for major housekeeping, including window cleaning and spring cleaning; 0.25 hours per week for bed making; and 2 hours per week for external yard maintenance, a total of 2.87 hours per week.

[25]

The Appellants' Submissions 143The appellants submitted that no damages should have been awarded for future paid commercial care. They contended that the claim for paid care was made where it had to be conceded that a claim for gratuitous care must fail. Awarding damages for commercial care in circumstances such as the present would have the effect of circumventing the statute. In any event, her Honour's assessment was grossly inflated because the hourly rate for commercial care was roughly twice that of gratuitous care. 144I pause to make two observations. First, the Civil Liability Act deals only with past and future gratuitous care and not commercial care. The latter is a perfectly justifiable head of damages in circumstances where the provision of gratuitous care is, or is likely to be, unavailable. In the present case, only the respondent's youngest son lived at home at the time of trial and provided some assistance to him (with respect to shopping) as did his mother at times. His other sons had left home and only one was living in the Tamworth area. There was no evidence as to the age of the respondent's mother, but as he was 48 years of age at the date of trial, she must have been, at the very least, in her mid to late sixties. Again, there was no evidence, understandably, as to the length of time that the youngest son would remain at home after he finished the Higher School Certificate. However, there could be no doubt that he would ultimately leave. Accordingly, given the respondent's life expectancy of 26 years, it was reasonable to assume that whatever gratuitous assistance he was currently obtaining from his youngest son and mother would not continue for the rest of his lifetime. However, as will appear, some allowance ought to have been made for the probability that the son and mother would have continued to provide some gratuitous care for some period after the date of trial. 145Secondly, I would reject the submission that it was not open to her Honour to adopt Ms Wolfgang's quoted commercial rates, a submission put simply upon the basis that those rates were roughly twice the statutory rate for gratuitous care. Those rates were consistent with similar commercial rates referred to in Ms Zeman's report. She referred to a rate of $45 per hour for lawn mowing and handyman services and a rate of $65 for the first two hours and $35 per hour thereafter for internal domestic services such as general cleaning, carpet cleaning and laundry/ironing. The differences between the commercial rates referred to by Ms Wolfgang and those referred to by Ms Zeman are not so stark as to justify a finding that her Honour was in error in accepting the rates referred to by Ms Wolfgang. 146The appellant further submitted as follows: (a) A case could only be made for commercial care where that care was necessary and could not be provided gratuitously; (b) The Court would need to be satisfied that the damages which it awarded would actually be spent. This submission has no legal basis as the Court has no concern as to the manner in which a plaintiff uses the amount awarded to him or her; the plaintiff is free to do with it as he or she pleases: Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 at 412 per Gibbs CJ and Wilson J; (c) There was no evidence that the respondent's continuing wellbeing would be affected by reason of the absence of commercial care, especially as he was still active physically, regularly playing or refereeing touch football. Accordingly, this was not a case where a need for commercial care was established; (d) The absence of a need for commercial care was supported by the respondent's evidence as to his relatively limited need for domestic assistance. It was contended that the respondent could do everything that he needed to do for his day-to-day living, although he had to pace himself and do it more slowly than before the accident. In particular, the respondent said that he could mow the lawn, although if he could afford it, he would prefer to have someone paid to do it. It was contended that the respondent's preferences were irrelevant, absent need; (e) Ms Wolfgang's opinions did not reflect the respondent's sworn testimony, given his evidence that he could carry out most work around his house, although he had a few problems using both arms to hang clothes on the line but nevertheless persisted; (f) Ms Wolfgang's evidence was that the 4.5 hours of commercial care that she recommended was regarded by her as "reasonable" rather than "needed". The primary judge should never have adopted Ms Wolfgang's opinion without performing a comparison between that opinion and the sworn testimony of the respondent; (g) The primary judge did not refer to the medical evidence, such as that of Dr Dalton that no care was necessary and Dr Doig's opinion that the respondent would require 2 hours of assistance, but only if assistance from his son and mother provided gratuitously was not available. Accordingly, it was necessary for the respondent to establish, in order to claim a need for commercial care, that gratuitous care would end; (h) Finally, the primary judge was in error in failing to calculate a discount for vicissitudes. Common experience would suggest that very few people continue to mow their own lawn up until their last days. Furthermore, but for the accident, what had been asymptomatic pre-existing degenerative changes in the respondent's left elbow might have become symptomatic and thus required him to obtain commercial care in any event.

[27]

Should the Damages For Domestic Assistance Be Reassessed? 148I accept the submission of the appellants that it was necessary for the respondent to establish not only a need for paid commercial care but also that gratuitous care which would satisfy that need was unavailable. In this respect, the unchallenged evidence of the respondent was that of his three natural sons, at the time of trial the youngest was in year twelve and lived at home whereas his eldest worked on the docks in Perth and his middle son worked in the mines in Newcastle. His foster son worked as a farm hand in the Tamworth area. It was not suggested to the respondent that, apart from his youngest son, any of his other sons, whether natural or fostered, would or could provide him with gratuitous assistance in relation to the tasks that he was clearly having difficulty carrying out without sustaining considerable pain and inflammation of his elbow. 149Although the respondent accepted that he continued to carry out the tasks in respect of which he claimed commercial care, his evidence made it clear that he had difficulty in doing so. Thus, for instance, he said that when he was cleaning or sweeping or doing anything for a fair period of time he would get pain later in the day which required him to rest before he could continue to enable the inflammation and swelling to reduce and the pain to recede. Although he was able to mow the lawn, it caused pain and swelling and he was unable to obtain the assistance of his youngest son as the latter was allergic to grass seeds. 150Although the appellants relied on the evidence of the respondent that he could hang clothes on the line, he said that it caused him problems when he had to raise both arms to hang clothes on the line above his head. Again, as noted by the appellants, he had no difficulty shopping and although he could not carry heavy bags, his youngest son assisted him with that task. Of course, once the youngest son left home and moved away, possibly from Tamworth, then that gratuitous assistance would no longer be available to him. 151In my opinion, the respondent clearly made out a case for commercial care and it was open to the primary judge to accept the evidence of Ms Wolfgang that he required 4.5 hours per week at a cost of $195 per week. However, her Honour was in error in accepting the submission of the respondent that that commercial care should be provided for the whole of the respondent's 26 year life expectancy from the date of trial. In my view, it would be reasonable to assume that the respondent would continue receiving gratuitous assistance from his son, and possibly his mother, for a period of 5 years, as a consequence whereof future paid domestic assistance should be assessed for a period of 21 years rather than 26. 152Furthermore, given the pre-existing degenerative condition of the respondent's left elbow, which was asymptomatic at the time of his accident, some discount should be provided on the basis that at some point in his aging process, that condition might well have become symptomatic and thus given rise to a need for paid domestic assistance in any event. The appropriate rate of discount, in the circumstances, is 15 per cent. 153Accordingly, in my opinion the primary judge erred in accepting without adjustment the respondent's claim for domestic care in the sum of $172,536. That claim should be reassessed upon the basis to which I have referred. Using a multiplier of 685.6 for a period of 21 years, and a discount of 15 per cent, the resultant figure is $113,638. However, that amount needs to be deferred for five years. The multiplier for a sum deferred for five years is 0.784. The resultant figure is $89,092. It is this amount to which, in my view, the respondent is entitled for paid domestic care.

[28]

Apportionment under s 151Z of the Workers Compensation Act 1987 154At [111] of her reasons her Honour determined that Fast Track's proportion of liability for the harm suffered by the respondent was 20 per cent. There is no challenge to that figure. At [172] her Honour adjourned the proceedings in order to deal with the issue arising out of s 151Z. She dealt with this issue in the ex tempore judgment, in which she found that the respondent's WPI exceeded 15 per cent, such that he qualified for work injury damages. On that basis she adjusted the damages to which the respondent was entitled pursuant to s 151Z(2) of the WC Act. 155Section 151Z(2)(a) and (b) provide for a recalculation of damages in circumstances where a worker takes or is entitled to take proceedings independently of the WC Act to recover damages from the worker's employer and from a person other than that employer. The significance of the 15 per cent WPI has its genesis in s 151H of the WC Act, which provides as follows: (1) No damages may be awarded unless the injury results in the death of the worker or in a degree of permanent impairment of the injured worker that is at least 15%. Note. Section 322 of the 1998 Act provides that the assessment of the degree of permanent impairment is to be made in accordance with WorkCover Guidelines. That section also provides that impairments that result from the same injury are to be assessed together. (2) In assessing whether the 15% threshold has been met (that is, whether the degree of permanent impairment resulting from an injury is at least 15%): (a) impairment resulting from physical injury is to be assessed separately from impairment resulting from psychological injury, and (b) in assessing impairment resulting from psychological injury, no regard is to be had to impairment that results from a secondary psychological injury, and (c) the 15% threshold is not met unless the degree of permanent impairment resulting from physical injury is at least 15% or the degree of permanent impairment resulting from psychological injury is at least 15%. Note. This does not prevent an award of damages in respect of both psychological and physical injuries together once the 15% threshold has been met for one or the other. (3) In assessing the degree of permanent impairment that results from a physical injury, no regard is to be had to any impairment or symptoms resulting from a psychological injury. (4) The degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act. (5) In this section: psychological injury includes psychiatric injury. secondary psychological injury means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury. 156Her Honour's finding that the respondent had a greater than 15 per cent WPI was due to her acceptance of the evidence of Dr Doig, who in his report of 17 September 2010 determined that the respondent had sustained a 19 per cent WPI. By virtue of s 151H(1) Dr Doig was required by s 322(1) of the Workplace Injury Management and Workers Compensation Act 1998 ("the WIM Act") to assess the WPI of the respondent in accordance with the WorkCover Guidelines. 157Ground 7 of the appellants' Amended Grounds of Appeal dealt with the s 151Z issue in the following terms: The primary judge erred in the application of s 151Z of the Workers Compensation Act 1987 and, as a consequence, erred in the assessment of damages awarded against the appellants: (a) The primary judge found that the respondent was, or would have been, entitled to work injury damages whereas the respondent was not so entitled: (i) because the respondent was unable to establish that he had met the pre-requisites for work injury damages; because the respondent had not made the appropriate applications which were a pre-requisite to obtaining work injury damages. 158This ground was not in terms pursued in the appellants' written or oral submissions. Rather, the appellants' complaint, which was not covered by their ground of appeal, was that the primary judge erred in two respects in accepting the opinion of Dr Doig. The first was that Dr Doig's assessment of the respondent's WPI was not made in accordance with the WorkCover Guidelines but rather in accordance with the guidelines published by the American Medical Association ("AMA"). The second was that there was no evidence that Dr Doig's assessment complied with Part 7 of Chapter 7 of the WIM Act or that he was an "approved medical specialist" for the purpose of performing a medical assessment pursuant to that Part. 159In oral submissions, the appellants went further than their written submissions and submitted that her Honour was in error in failing to consider the report of Dr Schutz on this issue and, in particular, his comparison in terms of movements between the respondent's right and left shoulder and right and left elbow. The assumption behind this submission, as I understand it, was that such a comparison would take into account the pre-existing degenerative changes in the respondent's left shoulder and elbow on the basis that the same pre-existing degenerative changes were to be found in his right shoulder and elbow. The difficulty with this proposition is that Dr Schutz had made an assumption, unsupported by any radiological evidence (which was confined to the respondent's left shoulder and elbow), that the pre-existing degenerative changes to his right shoulder and elbow were identical to those to his left shoulder and elbow. 160Dr Doig also determined the percentage impairment of the respondent's left shoulder and elbow using, as he was required to do, the range of motion method. Unlike Dr Schutz, he did not seek to determine the relevant WPI based on a range of movement comparison between the right limb and the left limb. However, it was not suggested by the appellants that the WorkCover Guidelines required him to do so. 161A recent, if not the most recent, judicial exposition of the operation of s 151Z is to be found in Izzard v Dunbier Marine Products (NSW) Pty Ltd [2012] NSWCA 132. In that case Basten JA generally agreed with Macfarlan JA, although he gave his own explanation of s 151Z at [29]-[38]. Macfarlan JA dealt with the issue at [111]-[124] and Barrett JA, who agreed with Macfarlan JA, added some observations on the process of calculation directed by s 151Z(2) at [139]-[148]. 162It is unnecessary to repeat the principles referred to by their Honours in Izzard except to make two observations of relevance to the present matter. The first is that according to Basten JA at [34], a court must make its own assessment of the degree of permanent impairment of the plaintiff according to the principles established by Part 7 of Chapter 7 of the WIM Act but without the benefits provided (and the constraints imposed) by the procedural mechanisms there set out. Relevantly for present purposes, although the assessment of the degree of permanent impairment is to be made in accordance with the WorkCover Guidelines as required by s 322(1) of the WIM Act, it need not be made by an approved medical specialist appointed under Part 7. Whereas Dr Schutz had been so appointed, it would appear that Dr Doig had not. However, for present purposes that does not matter. The submission of the appellants to the contrary should be rejected. 163As I have noted, Dr Doig did not make a comparison between the right and left shoulders and elbows as did Dr Schutz. In making his assessment of the respondent's WPI he utilised the American Medical Association's Guides to the Evaluation of Permanent Impairment, 5th edition, 2001, as did Dr Schutz in performing his comparison exercise. Contrary to the appellants' contention that Dr Doig was in error in relying on the AMA Guide, the 3rd edition of the WorkCover Guidelines states that they are based upon the AMA 5th edition guidelines. In the Foreword to the WorkCover Guides the following is stated: The WorkCover Guides are based on the American Medical Association's (AMA) Guides to the Evaluation of Permanent Impairment, fifth edition. The AMA guides are the most authoritative and widely used source for the purpose of evaluating permanent impairment. However, extensive work by eminent medical specialists, representing all Medical Colleges, has gone into reviewing the AMA guides to ensure they are aligned with Australian clinical practice. In the introduction to the WorkCover Guides paragraph 1.3 states: The WorkCover Guides adopt AMA5 in most cases. Where there is any deviation, the difference is defined in the WorkCover Guides. When differences exist, the WorkCover Guides are to be used as the modifying document. 164No submission was made to the effect that the differences referred to in para 1.3 of the WorkCover Guides had any application to the present case. I would therefore reject the suggestion contained in the appellants' written submissions that Dr Doig did not make his assessment in accordance with Part 7, Chapter 7 of the WIM Act. He was not required to do any more than apply the WorkCover Guidelines, which he did. 165Ultimately, the appellants' primary complaint was that her Honour failed to indicate the basis upon which she accepted Dr Doig and rejected Dr Schutz. The former assessed the WPI of the respondent at 19 per cent, the latter at 2 per cent. 166The appellants conceded that it was open to her Honour to accept Dr Doig, given that in respect of other heads of damages she had accepted his opinions and rejected those of Dr Schutz. There does not appear to be anything on the face of Dr Doig's assessment of the respondent's WPI that discloses error. Although, as I have indicated, Dr Schutz carried out a comparison exercise between the right and left shoulders and elbows in an attempt to distinguish the effects of pre-existing degenerative changes from those of the injury, as there was no radiological evidence to support a comparison between the left and right limbs, it was open to the primary judge to reject Dr Schutz's approach. 167In any event, once it is accepted that Dr Doig went about his assessment using the 3rd edition of the WorkCover Guides, then in my opinion it follows that it was open to the primary judge to accept his assessment of the respondent's WPI. I appreciate that her Honour did not give reasons in the ex tempore judgment for rejecting Dr Schutz on the present issue, but as that judgment was, in effect, a continuation of her primary judgment, her reasons for rejecting Dr Schutz in the primary judgment with respect to the extent of the respondent's injuries and their prognosis when dealing with other heads of damages could be said to have been impliedly carried over into her ex tempore judgment. 168For the foregoing reasons, in my opinion it was open to the primary judge to accept Dr Doig's assessment of the WPI of the respondent at 19 per cent. Accordingly, I would reject the appellants' challenge to that finding. However, as I have reduced the respondent's damages with respect to past economic loss and future care, it will be necessary to recalculate the final quantum of damages to which the respondent is entitled for the purposes of s 151Z. An appropriate direction to the parties to perform that task should be given.

Berkeley Challenge Pty Ltd v Howarth

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