Commonwealth v Amann Aviation Pty Ltd

Court of Appeal (NSW)|2003-12-08|Before: Hodgson JA, Palmer J

CITATION : Matchan v. Lyons [2003] NSWCA 384 HEARING DATE(S) : 8 December 2003 JUDGMENT DATE : 22 December 2003

JUDGMENT OF : Hodgson JA at 1; Cripps AJA at 9; Palmer J at 10 DECISION : 1. Appeal allowed. 2. Verdict and judgment in the District Court be set aside and in lieu thereof a verdict and judgment be entered for the respondent in the sum of $431,716.80. 3. The respondent is to pay the appellant's costs of the appeal but is to receive a certificate under the Suitors' Fund Act 1951 (NSW), if otherwise entitled.

CATCHWORDS : NEGLIGENCE - CAUSATION - DAMAGES - Whether evidence sufficient to support finding that plaintiff's injuries caused by accident - future economic loss - unpaid domestic assistance - paid domestic assistance. LEGISLATION CITED : Motor Accidents Act 1988 (NSW) s.72 Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 CSR Limited v. Clydesdale [2003] NSWCA 339 Geaghan v D'Aubert [2002] NSWCA 260 Jones v Schiffmann (1971) 124 CLR 303 Mifsud v Campbell (1991) 21 NSWLR 725 Pettitt v Dunkley [1971] 1 NSWLR 376 CASES CITED : Public Service Board (NSW) v Osmond (1986) 159 CLR 656 Purkess v Crittenden (1965) 114 CLR 164 Roads & Traffic Authority of NSW v. Lolomanaia (2001) 34 MVR 249 Shorey v PT Ltd (2003) 77 ALJR 1104 State of New South Wales v Moss (2000) 54 NSWLR 536 Van Girvan v. Fenton (1992) 175 CLR 327 Watts v Rake (1960) 108 CLR 158 Winston v Roach [2003] NSWCA 310 PARTIES : Rhys Evan Matchan - appellant Geoffrey James Lyons - respondent FILE NUMBER(S) : CA 40178/03 COUNSEL : Mr. C. Hoeben SC for appellant with Ms. K. Williams for appellant Mr. C. Branson QC for respondent with Mr. J. Stewart and Mr. A. Foel for respondent SOLICITORS : Phillips Fox, Sydney for appellant Harris Lieberman Boyd, Albury for resondent

LOWER COURT District Court JURISDICTION : LOWER COURT DC23/02 (Albury) FILE NUMBER(S) : LOWER COURT Goldring DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40178/02 DC 23/03

HODGSON JA CRIPPS AJA PALMER J

Monday 22 December 2003 MATCHAN V. LYONS Judgment 1 HODGSON JA: I agree with the orders proposed by Palmer J, and substantially with his reasons. In relation to domestic assistance, I would add a few comments. 2 Section 72 of the Motor Accidents Act 1988 is in the following terms: 72 Maximum amount of damages for provision of certain home care services (1) The objects of this section are: (a) to limit to average weekly earnings the level of payment for services for additional domestic assistance, and (b) to restrict access to those payments to claims where the need is long term, and (c) to exclude claims where the services provided would have been rendered as a matter of course regardless of the relevant motor accident. (1A) Compensation, included in an award of damages, for the value of services of a domestic nature or services relating to nursing and attendance: (a) which have been or are to be provided by another person to the person in whose favour the award is made, and (b) for which the person in whose favour the award is made has not paid and is not liable to pay, must not exceed the amount determined in accordance with this section. (2) No compensation is to be awarded if the services are provided, or are to be provided: (a) for less than 6 hours per week, and (b) for less than 6 months. (3) If the services provided or to be provided are not less than 40 hours per week, the amount of compensation must not exceed: (a) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for: (i) in respect of the whole or any part of a quarter occurring between the date of the injury in relation to which the award is made and the date of the award, being a quarter for which such an amount has been estimated by the Australian Statistician and is, at the date of the award, available to the court making the award - that quarter, or (ii) in respect of the whole or any part of any other quarter - the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and is, at that date, available to the court making the award, or (b) if the Australian Statistician fails or ceases to estimate the amount referred to in paragraph (a), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed. (4) If the services provided or to be provided are less than 40 hours per week, the amount of compensation must not exceed the amount calculated at an hourly rate of one-fortieth of the amount determined in accordance with subsection (3) (a) or (b), as the case may be. (5) Unless evidence is adduced to the contrary, the court is to assume that the value of the services is the maximum amount determined under subsection (3) or (4), as the case requires. (6) No compensation is to be awarded if the services would have been provided to the person even if the person had not been injured by the motor accident. (7) Except as provided by this section, nothing in this section affects any other law relating to the value of services of the kind referred to in subsection (1A). 3 Section 72 does not place limits on compensation for paid domestic assistance, past or future; and paid domestic assistance can be the subject of compensation so long as it is reasonable to incur it and it is reasonable as to amount. In this respect, s.72 is similar to s.151K(1) of the Workers Compensation Act 1987. It is not necessary, under either provision, that there be an existing liability to pay for future services; and the tentative view to the contrary that I expressed in CSR Limited v. Clydesdale [2003] NSWCA 339 at [66] is I believe incorrect. However, the plaintiff must, in order to avoid the restrictions imposed by these sections in respect of future care, prove that he or she will actually incur liability to pay for services in the future. 4 As regards unpaid domestic care, s.72 imposes limits on what would otherwise be recoverable at general law. As to what is recoverable at general law, I adhere to what I said in Roads & Traffic Authority of NSW v. Lolomanaia (2001) 34 MVR 249 at [45]-[50] as to the true effect of Van Girvan v. Fenton (1992) 175 CLR 327. In my opinion, there should be no compensation in respect of domestic care that is given as part of the fair give and take of family life, although there may be compensation for the contingency that care may not be given this way in the future. 5 In my opinion, a plaintiff seeking compensation for unpaid domestic care should prove what domestic tasks he or she previously did and does not now do, that this is due to the relevant injuries and disabilities, and that these tasks are now done for the plaintiff otherwise than as part of the fair give and take of family life. 6 In the present case, there was evidence that the respondent used to look after the children when his wife was working, cook evening meals, bathe the children, help with vacuuming, clean the bathroom, and spend up to three hours a week maintaining the garden. There was evidence that the respondent can no longer clean the bathroom or help with the vacuuming, that the children bathe themselves, that he no longer cooks evening meals, and no longer works in the garden. The evidence did not suggest that his disability was such that he could not cook meals; but there was evidence that, when he came home from work, he put ice packs on his back and lay down for one to one and a half hours. There was no evidence that he could not look after the children while his wife was working. 7 There was no evidence that, beyond the gardening for which the respondent paid $25.00 per fortnight, anyone else was doing the gardening; or that the respondent was not carrying out other domestic tasks. It could have been inferred that he was receiving domestic care in excess of that which he would have received in the fair give and take of domestic life; but the evidence was insufficient to justify a conclusion that this domestic care exceeded six hours per week. 8 I agree that this head of damages should be wholly disallowed. 9 CRIPPS AJA: I agree with Palmer J. 10 PALMER J: Introduction 11 The appellant, Rhys Evan Matchan, appeals against an award of damages in favour of the respondent, Geoffrey James Lyons, made by Judge Goldring in the District Court on 20 February 2003. The respondent was seriously injured on 1 May 1999 when the truck he was driving was hit by the vehicle driven by the appellant. The appellant admitted liability and the only issue before his Honour was the assessment of damages. 12 The learned judge assessed the respondent's non-economic loss at 45% of a most extreme case, resulting in the sum of $139,000 for that head of damages. His Honour awarded $35,265.80 for past out of pocket expenses, $5,000 for future medical expenses, $60,000 for past economic loss, $42,356 for past domestic assistance, $75,870 for future domestic assistance, $64,942.50 for future gardening and home maintenance requirements, and $235,875 for future loss of earning capacity. From the total of $658,309.30 his Honour deducted $72,254 for payments already made to the respondent and entered judgment in his favour for the balance of $586,055.30. 13 The appellant challenges the trial judge's findings that the respondent's back and neck injuries were caused by the motor vehicle accident. If he succeeds in this challenge, he submits that his Honour's award of $139,000 for non-economic loss must be reduced. 14 The appellant also challenges his Honour's assessment for future loss of earning capacity, future domestic assistance and future gardening and household maintenance expenses. Ground 1 of the Appeal - back injury 15 At the trial, the appellant argued that the judge should not be satisfied on the balance of probabilities that the respondent's severe and continuing lower back pain was a consequence of the motor vehicle accident. The circumstances upon which this submission was founded were as follows. 16 On 23 August 1999, the respondent underwent surgery for the repair of a severe rotator cuff injury. There is no question that this injury was the result of the accident. After the operation, the respondent was given exercises with a physiotherapist, which continued for some months. 17 In June 2000, his physiotherapy treatment was reviewed by another physiotherapist, Ms Halter. She had discussions with the appellant's insurer in which she expressed the opinion that the respondent was holding back a little in his physiotherapy exercises and she suggested that the respondent should be encouraged to push himself a little more. Shortly afterwards, Ms Halter suggested to the respondent that he should try using a certain lifting machine at the gymnasium and see what his limits were. She gave him some new exercises and tried to motivate him to push himself a little harder. 18 The respondent followed Ms Halter's advice. Two days later he saw her and reported lower back pain. The severity of the back pain increased substantially to the point where, in December 2000, he had surgery to excise prolapsed disc material. A certain degree of back pain nevertheless remains as a continuing disability. 19 The judge dealt with the appellant's submission as to causation of the back injury as follows: Mr Lyons in his evidence said that there had been some tingling in his back at the time of the accident, and it had persisted, but it only became acute at a later time.

In his evidence in court he could not recall that the back became worse in the gym or in connection with his physiotherapy. This is certainly what he told a number of the reporting doctors, including doctors qualified by the defendant.

While Mr Hillier expressed the view that it was unlikely that back pain would result from the sorts of exercises that had been prescribed, and indeed Ms Halter said the same thing, something happened on or about mid-June which made Mr Lyons' back considerably worse. He had returned to work and he was doing light duties, but that included shovelling.

I find that the most probable cause of the exacerbation of his back condition, (and I am satisfied that he did have some degenerative condition there) was that there was an acute episode which resulted from his trying the lifting machine, testing his limits, and using new exercises at the gymnasium, and in that respect Mr Roberts, for the defendant, said that if I made such a finding he would not be addressing me on remoteness, so I do find that the back pain is a consequence of the motor vehicle accident. 20 The appellant submits that there was insufficient evidence to support this finding. The appellant points to the following evidence:

the respondent had had some back problems in 1987, 1992 and 1997;

he had not mentioned back pain to various treating or examining doctors shortly after the accident;

he was not clear in his evidence at trial as to what brought on the back pain;

he did not mention to Ms Halter that he had developed back pain as a result of the exercises which she had prescribed and she did not think that the exercises would put a strain on his lumbar discs. 21 The appellant submits that on that state of the evidence it was not open to the judge to find that the exercises prescribed by Ms Halter had exacerbated or brought about the back injury. The appellant did not, however, adduce any evidence as to what caused the back injury if it were not caused by the exercises prescribed by Ms Halter. 22 In my opinion, the appellant's challenge to the judge's findings as to the causation of the respondent's back injury fails for two reasons. The first is that there was ample evidence upon which the judge could properly make such a finding. Not only did the respondent's doctors - Dr Hillier in his report of 22 March 2001, Mr Wallace in his report of 27 February 2002, and Mr Davie in his report of 8 November 2002 - conclude that the back injury was the result of the exercises in the gymnasium, but the appellant's own doctor, Dr Baker in his report of 2 August 2000, came to this conclusion: Mr Lyons had probable pre-existing degenerative changes in his lumbar spine as the result of previous work injuries. He had investigations in 1997 for back pain and although not obviously aggravated by the road traffic accident his back condition has been aggravated by the gym activities that he has been undertaking. 23 The appellant attacks this medical evidence on the ground that the doctors uncritically accepted the respondent's assertion of an association between the back pain and the gym exercises. However, there is no evidence to support this assertion. The doctors were not required by the appellant for cross examination. It is to be inferred that if they had found the respondent's attribution of back pain to the gym exercises improbable they would have said so - especially the appellant's own doctor. 24 The second reason that the challenge fails is that the appellant has done no more than suggest that the cause of the back injury must be something other than the gym exercises: he has not adduced any evidence to identify with any sufficient persuasiveness what that other cause could have been. 25 The respondent was in good health prior to the motor vehicle accident and was suffering from no back problem which interfered with his normal, active life. In these circumstances, there is an evidentiary presumption that the respondent's condition after the accident was caused by the accident or else caused by the physiotherapy treatment prescribed in the form of the gym exercises and it falls to the appellant to repel the presumption by disentangling the possible causes of the injury and excluding the operation of the accident or of the physiotherapy as a contributing cause: see Watts v Rake (1960) 108 CLR 158 at 160; Purkess v Crittenden (1965) 114 CLR 164, at 168, 170; Shorey v PT Ltd (2003) 77 ALJR 1104 at paras.46-47, para.87; Winston v Roach [2003] NSWCA 310 at para.69. As I have noted, the appellant can point to no evidence which is sufficient to repel the evidentiary presumption in the respondent's favour. Ground 2 of the Appeal - neck injury 26 The judge made the following findings in respect of the respondent's claim for injury to his neck: Subsequently Mr Lyons says that he has suffered from severe neck pain. Neck pain was something that was reported immediately after the accident. It appeared to be in remission but more recently he complains of it to Dr Robinson and to the physiotherapists.

As I said, in this impact Mr Lyons was thrown to the other side of the cab of the truck and ended up on the floor under the dashboard. It is most likely that in that impact he suffered injuries which became dormant or paled into insignificance beside the more serious injuries to his shoulder and later to his back.

The neck injury, in my view, is something that does contribute to his non-economic loss, but does not significantly affect his capacity to work. However, I do find it a consequence of the defendant's negligence. 27 The appellant submits that there was no evidentiary basis for this finding. The appellant's strongest point is that although the accident occurred in May 1999, the respondent's neck pain did not appear to manifest with real severity until about October 2001. 28 In my opinion, there was sufficient evidence to support his Honour's finding that the respondent's neck injury was the result of the accident. The respondent reported neck pain immediately after the accident and he reported to his physiotherapist paresthesia in his arms and fingers which, she said in evidence, was more than likely coming from the neck and plexus brachialis. Further, the respondent said in evidence that his neck was troubling him all the time although it is clear that in late 1999 and 2000 his shoulder and back injuries were causing him most pain. 29 It was open to the trial judge to accept this evidence. Further, the appellant is not able to point to any evidence which shows with any sufficient persuasiveness that the neck pain was caused by something other than the accident. The appellant is, therefore, unable to repel the evidentiary presumption referred to in Watts v Rake. 30 In my opinion, the appellant fails in his challenges to the judge's findings on causation of the respondent's back and neck injuries and, accordingly, there should be no reduction in the amount which his Honour awarded for non-economic loss. Ground 3 of the Appeal - future economic loss 31 The respondent's circumstances are as follows. He was forty-six at the time of trial, married with two children who were aged eleven years and eight years. The younger of the children is autistic and requires significant care and attention. The respondent's wife has, for some time, worked at the Wodonga Hospital three nights a week from 5.00pm until 9.30pm and two shifts each weekend. 32 At the time of his injury, the respondent had recently established his own asphalting business in partnership with his wife. The respondent had had considerable experience in asphalting while an employee of Wodonga Council and when he was made redundant he set up on his own account. The respondent did the manual work involved in the business and calculated costings and quotations while his wife was responsible for bookkeeping and administration. 33 The respondent's business had not been in operation more than a matter of months before the accident occurred. Prior to the accident the respondent had been healthy, vigorous and active and had engaged fully in the physical work required in his business. After the accident the respondent returned to work as soon as his injuries permitted, but he could do no more than very light physical work. That remains the situation at present. At the time of trial, he spent about thirty hours per week at work on site apart from whatever he could do at home in preparing costings and quotations. The evidence makes it clear that it is highly improbable that the respondent will ever be able to engage in manual work to the extent to which he did before the accident. 34 Nevertheless, despite these setbacks, the respondent's business was operating profitably at the time of trial. The profit before tax for the financial year ended 30 June 2002 was about $63,000. 35 The judge arrived at a figure of $235,875 for the respondent's future loss of earning capacity by using the sum of $500 net per week as lost income. Since it was agreed between the parties' counsel that the respondent's retirement age, if he had not been injured, would have been sixty, his Honour took $500 net per week for fifteen years and deducted 15% for the vicissitudes of life. 36 The appellant does not challenge the methodology used but says that the judge misread the report of the respondent's accounting expert, Ms Evans, in arriving at a figure of $500 per week net as the basis for calculating future economic loss. 37 Ms Evans calculated the respondent's future loss based upon what he would have to pay another person to do work in the asphalting business which he himself was unable to do. In her report she calculated this amount as "a weekly loss (before tax) of $1,001". The tax on this weekly income, based on 2002 advised income of Mr and Mrs Lyons … would be in the range of 31.5% to 48.5% (including Medicare)". 38 The judge discounted Ms Evans' figure of $1,001 per week because she had erroneously believed that, but for the respondent's injuries as a result of the accident, he would not have had to employ another person in the business to do heavy manual work. In fact, it was clear from the evidence that the nature of the work required the employment of two people at all times to perform heavy work. Having made this observation, the judge continued: Nevertheless, Ms Evans' figures, while not giving absolute guidance, do provide an indication of the loss that Mr Lyons has suffered.

His Honour then adjourned for a short time to consider the calculation of economic loss. On his return to the Bench, his Honour said: I have looked at the report of Ms Evans, and while I think that all that can be done in these circumstances is to make an estimate of the most rational kind possible in the circumstances, as I indicated, this report is flawed in one way. When I look at her report I see that she estimates the loss of trading profit on the basis of a loss due to increased subcontractor payments. Of those subcontractor payments it seems to me that here she has made an error because some of those subcontractor payments are payments which would have been required in any event, given that the business of asphalting requires two people at all times.

It seems to me that as to the lost income, her estimate is twice as high as it should be, and it seems to me that taking into account taxation rates and Mr Lyons' share of the business the approximate loss, and I admit that this can be no more than an estimate, should be $500 per week net. 39 As I have noted, the appellant attacks the judge's calculation on the ground that he has misread or misapplied the figures in Ms Evans' report: the appellant says that the judge has discounted by half Ms Evans' figure of $1,000 per week to arrive at a figure of $500 per week without appreciating that Ms Evans' figure of $1,000 was before tax and that a further deduction of 40% to allow for tax should have been made, producing a net figure of $300 per week which his Honour should then have factored into the calculation. 40 The respondent submits, however, that it is clear enough from the final paragraph in the passage from the judgment quoted above that the judge was fully conscious that the figure for future economic loss which he was awarding was required to be an after-tax figure and that he took into account the relevant taxation rates referred to by Ms Evans in arriving at a figure which he expressly referred to as "net". The respondent further submits that it is erroneous to read the judge's reasoning as starting with Ms Evans' figure of $1,000 per week and discounting it by half: his Honour really put to one side Ms Evans' figures entirely and had regard to all of the other facts and circumstances in the case in arriving at an estimate of $500 net per week for future economic loss. 41 The difficulty with this last submission is that, if it is correct, then there is nothing at all in the judgment which shows that this is what the judge did, nor is there anything which indicates the facts and circumstances to which he had regard in arriving at his estimation of loss. It is true that assessment of future economic loss "does sometimes of necessity involve what is guesswork rather than estimation": per Menzies J in Jones v Schiffmann (1971) 124 CLR 303, at 308; Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64, at 83. Sometimes there is little or no evidence which would assist in defining the parameters within which future economic loss might conceivably lie. In such cases the judge, if satisfied that substantial future loss will be suffered, must simply do his or her best to arrive at a figure which is, of necessity, the product of pure speculation: see the review of authorities made by Heydon JA in State of New South Wales v Moss (2000) 54 NSWLR 536, at 551-559. 42 But the judge must explain in the judgment what it is that he or she is doing. If the judge founds estimation of economic loss, including such guesswork as is required, on a basis of fact and circumstance established by the evidence the judge must disclose in the judgment what that evidence is and how it has been used. If the judge is not able to rely on any helpful evidence and must resort to speculation, again the judge must disclose that that is what he or she is doing. Failure to disclose the reasoning process in this way in a judgment is, in itself, appellable error: Pettitt v Dunkley [1971] 1 NSWLR 376, at 388; Public Service Board (NSW) v Osmond (1986) 159 CLR 656, at 666; Mifsud v Campbell (1991) 21 NSWLR 725 at 718F, 729C-E. 43 In the circumstances of this case, therefore, acceptance of the respondent's submission that the judge entirely disregarded Ms Evans' figures in estimating future economic loss inevitably requires a conclusion that the judge fell into appellable error in failing to disclose by what process he arrived at the award which he made. 44 In fairness to the judge, I do not think that he fell into this error. As I have noted, he said that he thought that Ms Evans' figures provided "an indication" of the respondent's loss. His Honour's reference to Ms Evans' figure (of $1,000 per week) as being "twice as high as it should be" just before he arrived at a figure which is half of Ms Evans' gross figure strongly suggests that the only process of estimation in which his Honour engaged was founded entirely upon Ms Evans' figure of $1,000 per week. Although the judge then refers to "taxation rates" he does not explain how he took them into account in arriving at the sum of $500 net per week. If he had discounted Ms Evans' figure of $1,000 per week by half and then applied the taxation rate even at the lower end of the scale referred to by Ms Evans in her report, he would have arrived at a figure significantly less than $500 net per week. It seems to me, therefore, that despite his Honour's reference to taxation rates his Honour has, in the end, simply taken Ms Evans' gross figure of $1,000 per week and halved it, without making any adjustment for tax. This is clearly erroneous and cannot stand. Alternatively, if his Honour has employed Ms Evans' gross figure of $1,000 per week in some other way in order to arrive at $500 per week then he has given no explanation for what he has done so that the award, likewise, cannot stand. 45 The parties have joined in requesting this Court, if it concludes that the judge was in error, to arrive at its own calculation of future economic loss, rather than remit the proceedings to the District Court. In accordance with that request, I estimate the respondent's future economic loss as follows. 46 As the judge did, I begin with Ms Evans' figures - there is no other commencement point suggested by the evidence or by the parties in their submissions. After deducting the cost of another employee in the business, as Ms Evans' erroneously failed to do, one arrives at a loss figure of $500 per week before tax. One must then deduct provision for tax, which the parties agree should be assessed at the rate of 40%, leaving an amount of $300 per week net, or 60% of the figure which his Honour used to calculate loss over fifteen years with a 15% reduction for the vicissitudes of life. The result is a sum of $141,525. 47 However, this calculation assumes that the respondent will be able to continue working in his asphalting business at the level at which he presently does until his retirement. His disabilities presently enable him to spend thirty hours per week on site doing light manual work and to perform other non-manual work at home. He is now forty-six and there is substantial likelihood that, as he gets older, his continuing disabilities resulting from the motor vehicle accident will increasingly prevent him from working in his business at the same level. If this occurs, he will either have to engage additional labour, with consequent reduction in profit, or he will have to reduce the amount of work which he accepts. In my opinion, he should receive compensation for the substantial chance that this loss will occur. I would provide a cushion of an additional $50,000 in this regard. 48 The total amount which I would award for the respondent's future economic loss is, therefore, $141,525 plus $50,000, a total of $191,525. Ground 4 of the Appeal - domestic assistance 49 His Honour allowed in favour of the respondent one and a half hours of unpaid domestic assistance per day, a total of ten and a half hours per week, for a further ten years. The threshold required by s.72(2) Motor Accidents Act 1988 (NSW) was, therefore, crossed and his Honour awarded $75,870 in damages under this heading. The appellant submits that the evidence does not support a finding that domestic assistance of six hours or more per week would be required so that this head of damages should be deleted entirely. 50 The respondent and his wife gave evidence that before the accident the respondent used to look after the children while she was working. He would help with cooking the evening meal, he would bathe the children, help with vacuuming and clean the bathroom. Since the accident, the children bathe themselves and the older boy helps the respondent with the younger boy as much as he can. The respondent's wife now generally prepares the evening meal before she goes to work, or else the respondent buys take-away food for himself and the children. The respondent can no longer clean the bathroom or help with the vacuuming. 51 The judge did not explain how he reached the conclusion that the respondent's remaining household tasks, for which he would require assistance, namely cleaning the bathroom and helping with vacuuming, could consume one and a half hours per day or ten and a half hours per week. The respondent and his wife gave no evidence as to how long these tasks would take or why they would have to be performed every day of the week. 52 In the absence of evidence to the contrary, common experience would indicate that the tasks of vacuuming a house and cleaning a bathroom do not occupy one and a half hours per day, seven days a week. In my opinion, the judge's conclusion as to the amount of assistance required is not supported by any evidence. Moreover, I do not think that there is any evidence which establishes that the respondent requires unpaid assistance for any domestic task for a minimum of six hours per week, so that the threshold required by s.72(2)(a) of the Motor Accidents Act has not been crossed. Accordingly, this head of damages should be wholly disallowed. Ground 5 of the Appeal - gardening and maintenance assistance 53 His Honour allowed three hours paid assistance per week at the rate of $25 per hour for the rest of the respondent's life expectancy of thirty-four years, producing a total amount of $64,942.50. The assistance was in respect of gardening and maintenance which the respondent himself can no longer do. The appellant submits that, on the evidence, this award is excessive. 54 It is undisputed that before the accident the respondent regularly mowed the lawns and maintained the garden. Indeed, he said that gardening was a pleasure to him and he spent up to three hours per week in this activity. Likewise, it is undisputed that as a result of the accident the respondent can no longer do the lawn mowing or any heavy work in the garden. He can now only do the watering and other light task. He engages a person to mow the lawn and to carry out gardening maintenance which he cannot do himself, at the rate of $25 per fortnight. There is no evidence that other substantial maintenance work to the respondent's home is required on a regular basis. Indeed, the evidence suggests that the respondent's home is in good order and that the only maintenance work required will be repainting from time to time and such other repairs as will be occasioned by normal wear and tear over the years. 55 In my opinion, the appellant is correct in saying that the evidence does not support a finding that the respondent will require paid assistance for gardening and maintenance at the rate of three hours per week. The cost of employing someone to do gardening at the same level as the respondent himself did for his own pleasure or as a hobby does not justify an award of damages under Griffith v Kerkemeyer: Geaghan v D'Aubert [2002] NSWCA 260 at paras 57-66. There is no evidence that maintenance other than gardening requires three hours a week. It follows that the judge's award of $64,942.50 for paid assistance with gardening and home maintenance should be set aside. 56 As I have noted, the parties join in requesting this Court to substitute its own assessment for any award of damages set aside. I would calculate damages in respect of paid assistance for gardening and home maintenance as follows. 57 I accept, as does the appellant, that the respondent should be compensated for the cost of $25 per fortnight which he is presently incurring for lawn mowing and garden maintenance, for the period of his life expectancy, i.e. thirty-four years. This produces a sum of $10,824 with which the respondent does not disagree. The appellant submits that a further sum of $10,000 should be allowed to provide for other maintenance requirements which the respondent cannot perform. 58 In my opinion, this amount is inadequate. Experience shows that substantial repairs and maintenance will, on occasion, be required to a home such as the respondent's over a period of some thirty-four years. But for his disabilities, it could reasonably have been expected that the respondent himself would have carried out much of this work since, as the evidence shows, he carried out substantial renovations to his previous home. In my view, a sum of $20,000 should be provided to cover the cost of this additional maintenance work which, but for his injuries, the respondent would not have had to incur. The total award for paid assistance in respect of gardening and maintenance should, therefore, be $30,824. Orders 59 In accordance with the conclusions I have reached, the respondent's award of damages should be calculated as follows: Non-economic loss 139,000.00 (no variation) Past out-of-pocket expenses 35,265.80 (no variation) Future medical expenses 5,000.00 (no variation) Past economic loss 60,000.00 (no variation) Past domestic assistance 42,356.00 (no variation) Future domestic assistance Nil (varied) Gardening and house maintenance 30,824.00 (varied) Future loss of earning capacity 191,525.00 (varied) 503,970.80 Less payments made 72,254.00 $ 431,716.80

60 Accordingly, the orders I propose are as follows: 1. Appeal allowed. 2. Verdict and judgment in the District Court be set aside and in lieu thereof a verdict and judgment be entered for the respondent in the sum of $431,716.80. 3. The respondent is to pay the appellant's costs of the appeal but is to receive a certificate under the Suitors' Fund Act 1951 (NSW), if otherwise entitled. **********

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Suitors' Fund Act 1951(NSW)

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