Guiney v Australand Holdings Ltd & Ors; Castlehaven Sales No 2

CATCHWORDS: APPEAL AND NEW TRIAL - Appeal - general principles - points and objections not taken below - when not allowed to be raised on appeal - question not raised in pleadings or in argument - question of law - where statute law changes after trial but before the giving of judgment - where opportunity to bring the change of law to the attention of the judge not taken by legal representatives - where determining appeal on the point prejudicial to other party - Sullivan v Gordon - Civil Liability Act 2002, s15B - APPEAL AND NEW TRIAL - New trial - in general and particular grounds - points and objections not at trial - when not allowed to be raised - other conduct debarring the applicant - other matter - where law changes after trial but before the giving of judgment - where opportunity to bring the change of law to the attention of the judge not taken by legal representatives - where new trial not in the interests of justice - Sullivan v Gordon - Civil Liability Act 2002, s15B - DAMAGES - Measure and remoteness of damages in actions for tort - measure of damages - personal injuries - method of assessment - generally - where "cushion" or "buffer" damages awarded - whether damages should have been assessed at specific rate - TORTS - Negligence - essentials of action for negligence - duty of care - relationship of proximity - builder of premises with defect - injury to member of immediate family of first occupiers of newly built home.

Bryan v Maloney (1994) 182 CLR 609; Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33; CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1; Eggins v Brooms Head Bowling & Recreational Club Ltd (1986) 5 NSWLR 521; CASES CITED: Purkess v Crittenden (1965) 114 CLR 164; Sullivan v Gordon [1999] NSWCA 338; (1999) 47 NSWLR 319; Voli v Inglewood Shire Council (1962) 110 CLR 74; Watts v Rake (1960) 108 CLR 158; Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515.

In CA 40483/06 - Lorraine Guiney - Appellant Australand Holdings Ltd - First Respondent Real Estate Franchises Pty Ltd (t/as Castlehaven Realtors) - Second Respondent John Ten Berge - Third Respondent PARTIES: In CA 40573/06 - Castlehave Sales No 2 Pty Ltd (t/as Castlehaven Realtors) - First Appellant John Ten Berg - Second Appellant Lorraine Guiney - First Respondent Australand Holdings Ltd - Second Respondent

In CA 40483/06 - S Norton SC & M Fraser - Appellant B M Toomey QC & J G Stewart - First Respondent M L Williams SC - Second and Third Respondents COUNSEL: In CA 40573/06 - M L Williams SC - First and Second Appellant S Norton SC & M Fraser - First Respondent B M Toomey QC & J G Stewart - Second Respondent

Brydens Law Office, Liverpool - Lorraine Guiney SOLICITORS: Ebsworth & Ebsworth - Australand Holdings Pty Ltd Lee & Lyons - Real Estate Franchises (t/as Castlehaven Realtors) Moray & Agnew - Castlehaven Sales No 2 Pty Ltd (t/as Castlehaven Realtors) and John Ten Berg

LOWER COURT JURISDICTION: District Court

LOWER COURT DATE OF DECISION: 7 July 2006, 18 August 2006 (costs)

LOWER COURT MEDIUM NEUTRAL CITATION: Lorraine Guiney v Australand Holdings Ltd & Ors, Garling DCJ, 7 July 2006, unreported; Lorraine Guiney v Australand Holdings Pty Ltd, Garling DCJ, 18 August 2006, unreported (costs).

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40483/06 CA 40573/06 DC 4478/04

MASON P GILES JA EINSTEIN J

Tuesday 1 April 2008 Lorraine GUINEY v AUSTRALAND HOLDINGS LTD & ORS

CASTLEHAVEN SALES No 2 PTY LTD (t/a CASTLEHAVEN REALTORS) & ANOR v Lorraine GUINEY & ANOR JUDGMENT 1 MASON P: The appellant was injured when she slipped and fell on the wet tiles in the bathroom of a recently constructed home leased to her husband. After the fall, the couple noticed a lot of water on the floor that had entered from an external source. This was the first time this had happened in the upstairs bathroom, but there had been a similar problem in the downstairs bathroom about which the appellant's husband had complained unsuccessfully. 2 The appellant sued the three respondents being: (1) Australand Holdings Ltd, the builder; (2) Real Estate Franchises Pty Ltd t/as Castlehaven Realtors, the managing agent; and (3) Mr Tenberge, the owner. 3 Damages of $96,100 were recovered against the second and third respondents but the claim against the first respondent failed. 4 The third respondent was found to be liable for the negligence of his agent, the second respondent. The basis of the second respondent's negligence lay in its failure as managing agent to respond to repeated complaints by the lessee about the water leaking into the downstairs bathroom. 5 The appellant challenges the quantum of damages awarded in the District Court. 6 The appellant also seeks to extend her verdict to include the first respondent. In doing so, she is responding to the risk of losing the Bullock order for costs made in her favour against the second and third respondents. That order is challenged by the second and third respondents in their own summons for leave to appeal.

The negligence claim against the builder 7 The appellant and her husband moved into the home in early 2001. The accident occurred on 6 February 2002 after prolonged rainfall. The pool of water that caused the appellant to slip had penetrated through a leak in the roof into a vent pipe that ran down the inside of a wall. It got into the upstairs bathroom through the gap between the gyprock and the tiles. 8 Previously, water had entered the downstairs bathroom via the same vent and a light cord in the bathroom itself. The appellant's husband reported this problem to the managing agent, initially about six months after the couple had moved in and thereafter on at least four further occasions. Nothing was done in response. 9 The latest complaint was made about one week before the accident. A plumber was sent to the house (on 1 February 2002). He advised the appellant's husband that he had put in a temporary plug which should fix the problem on a temporary basis, but that he had been unable to get onto the roof because of the rain. It continued raining. The leaking problem in the downstairs bathroom persisted and, as indicated, water entered the upstairs bathroom where the appellant had her accident on 6 February 2002. 10 The claim in negligence against the first respondent, the builder, was based itself upon the following allegations, which were admitted on the pleadings: 5. The First Defendant had manufactured, constructed and built the said premises for the Third Defendant or others.

... 8. When the First Defendant constructed and manufactured the said premises for the Third Defendant or otherwise the premises contained a defect in that from a vent or other location large quantities of water would enter into the roof of the premises and be deposited on the bathroom floor and elsewhere in times of rain. 11 The learned trial judge correctly rejected a claim under s75AD of the Trade Practices Act 1974 on the basis that the section applied to defective goods, not land. 12 While addressing this claim, his Honour made findings that are well-grounded in the evidence (see Black 45-6, 72, 77-8; Blue 13-16, 45) which are relevant to issues in this Court. They have not been the subject of a Notice of Contention. 13 The Judge accepted that the house was defective when built in that water that should have got away through the downpipe was able to get into the house. So much appears to be common ground in the appeal. The defect involved the flashing around a vent pipe passing through the roof. The defect may have become masked when the roof tiles were put in place, but it was still easily capable of being identified and readily capable of being fixed, as happened after the accident (see Red 58N-P, 59Y). The Judge found that any failure on the builder's part to have remedied the problem, after it had been notified, would probably have been negligent (Red 61). In a later costs judgment his Honour referred to evidence that the leak could have been caused as a result of faulty workmanship when the premises were built (Red 76). 14 The builder was nevertheless acquitted of negligence because it did not become aware of the problem until notified by the owner after the accident (Red 57-8). 15 The appellant submits that this reasoning about the primacy of notification overlooked a basis for liability in negligence stemming from the admissions on the pleadings as to the first respondent's role as builder and the nature of the defect. I agree. 16 It is well established that a person who negligently manufactures goods or builds a structure is liable for the tort of negligence if a consumer or user in reasonable contemplation suffers reasonably foreseeable personal injury in consequence (Voli v Inglewood Shire Council (1962) 110 CLR 74 at 85; Bryan v Maloney (1994) 182 CLR 609 at 622-3, 625-6; Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16, (2004) 216 CLR 515 at 532-3[28]-[29], 539[51], 544[66]). Voli shows that it matters not that the building is taken over on completion without anyone being aware of the defect (see 110 CLR 74 at 83). In my view, the appellant as a member of the immediate family of the first occupiers of the newly built home was within the scope of such a duty of care. 17 I am prepared to infer that the defect was the product of negligence. I agree with the trial judge's conclusion in this regard (Red 57). To the extent that the inference is contentious I would refer again to para 8 of the pleading and the finding as to the remediability of the problem once brought to the attention of the builder. 18 Accordingly, I would uphold the appeal on liability against the first respondent. The verdict recoverable by the appellant should be entered against all three respondents with costs (see Supreme Court Act 1970, s75A(10)). Of course, the appellant is not entitled to a double satisfaction. 19 This means that the second and third respondents' foreshadowed appeal against the Bullock order falls away. Their summons should be dismissed with no order as to costs.

Damages 20 The appellant was born in 1959. She married in 2000. At the time of the accident she had two children aged four and one. 21 After her arrival in Australia in 1980 she resumed her earlier career as a beautician, working for four years at David Jones. More recently, she did secretarial work for her parents' cleaning company and worked in her husband's art gallery. She also did occasional work doing makeup for weddings and other special occasions. 22 In about 1997 she fractured her left wrist. It was in plaster for three months and a bit weak initially. Thereafter there were no problems. But, unbeknown to her, the previous fracture had not united and degenerative changes were taking place. 23 The appellant again suffered injury to her left wrist in the accident. When considering damages the Judge accepted Dr Ellis' opinion that it was difficult to estimate precisely what impairment was due to the trauma of the accident that led to these proceedings (Red 62). The evidence was nevertheless clear that the fracture that had not united would cause degenerative changes at some uncertain time in the future. In the meantime, it caused increased pain and disability. Assessment of damages was based on a finding that a pre-existing asymptomatic condition in the left wrist was aggravated.

(i) Non-economic loss 24 This loss was assessed on the basis of 26% of a worst case ($33,500). This component of the award was unchallenged in the appeal.

(ii) Economic loss 25 The injury was found to have rendered the appellant unfit for work as a beautician, for heavy work, or for the repetitive use of the left wrist (Red 69). 26 Past out of pocket expenses were agreed at $100. Future out of pocket expenses were allowed at $7,500. 27 The Judge made cushion awards of $10,000 for past economic loss and $30,000 for future economic loss. He referred to the fact that the appellant had "not worked" for 18 years prior to the accident and that she had two young children. The appellant was 43 at the time of the accident and 47 at the time of the trial. When injured, she had two children aged four and one. By the time of trial she had three children whose ages ranged from eight to two. 28 Shortly before the accident appellant had enrolled in a course to advance her skills in the beauty industry. She said that she intended to establish her own business and that, if that did not work out, she would have obtained employment in that field. 29 The appellant conceded that the likelihood of the wrist problem becoming symptomatic at some stage meant that a greater than usual discount for vicissitudes was appropriate. Thirty percent was suggested. But, subject to this, she submitted that the Judge erred in awarding only "buffer" sums as distinct from damages assessed at the rate of $200 per week for past and future losses. She accepted the appropriateness of past damages covering 4.25 years being awarded for only 2.5 years, thereby allowing for periods of unpaid maternity leave and the likelihood of her business taking time to generate significant profits. 30 The appellant submits that the evidentiary onus of segregating the impact of the previous injury from that of the tortious injury rested upon the respondents. This is true, but I detect no error in the judge's approach to a difficult assessment exercise and in his conclusions in that regard. At the end of the day, compensation could only be awarded with respect to such disability causative of economic loss as stemmed from the negligence found against the respondents. 31 The appellant next points to a factual error that, in her submission, infected the approach to economic loss. The judge stated that the appellant "had not worked for eighteen years prior to this accident". As indicated, the appellant had given evidence that she had more recently performed secretarial duties for her parents' cleaning business and had also worked in her husband's art gallery. From time to time she did makeup work for weddings and other special occasions. No evidence was led as to the remuneration earned in these various roles. 32 If, which I doubt, the judge overlooked this evidence, no material error ensued. The judge was focusing upon the claim for economic loss as it had been framed. It had been pitched as a claim referable to lost earnings from a planned new business venture in the beauty industry, alternatively employment in that field. Confirmation that this was the focus of attention emerges from the following passage in the reasons (Red 69): So I am now faced with this problem. Eighteen years out of work, young children, what was she intending to do? She was intending to do a course, and she wanted to do some work. Would she have got work? If so, what would it have paid, how long would it have lasted, would her previous injury have come against her and stopped her from working, or would she have just continued on earning income for the next eighteen years having done this course? It is an extremely difficult assessment. 33 The appellant was gearing herself up to return to regular work in the paid workforce, but the likelihood that she would have done so were it not for the injury, and done so profitably, needed to be assessed against the background of her history of paid work in her chosen field. Other factors, including her age and the demands of an expanding family of young children were also required to be brought to account. 34 As indicated, the evidence does not reveal the extent to which the secretarial work, the assistance in the husband's art gallery and the casual makeup work done for weddings and other special occasions entailed payment. Furthermore, the appellant's capacity to continue secretarial duties for her parents' business and to work from time to time in her husband's art gallery was not shown to have been impaired by the fall that led to these proceedings. The Judge found that the appellant was not fit for all the work of a beautician, nor for "heavy work or repetitive use of her left wrist". 35 It was argued at trial on behalf of the appellant that the Judge should award her $200 per week. His Honour was not prepared to assess the case on that basis because he said to do so would be to totally overcompensate the appellant. His Honour explained this by saying: … I have to build into this that there are two reasons why the plaintiff may not be working, one from the fall some years ago, one from this fall. I have to build into it that she may not have got a job, as I set out earlier, or she may have got a job quite quickly. 36 In my opinion, the rejection of the claim for economic loss as it was framed, and the preference for assessment on a "cushion" basis was open to the primary judge having regard to the facts and the mandate of s13 of the Civil Liability Act 2002. 37 I would therefore reject the challenges to the award of economic loss.

(iii) Domestic assistance 38 In the Statement of Claim the appellant claimed damages for domestic assistance because of her difficulties in attending to household tasks and child care. She intended to rely upon Sullivan v Gordon [1999] NSWCA 338, (1999) 47 NSWLR 319 in regard to the latter aspect of the claim. Sullivan v Gordon would have allowed domestic assistance damages to extend to the wider incapacity to care for her children. 39 The trial took place on 1 and 2 May 2006, that is after the High Court decision in CSR Ltd v Eddy [2005] HCA 64, (2005) 226 CLR 1 which had been handed down on 21 October 2005 and which had overruled Sullivan v Gordon. 40 The award that was made confined itself to an assessment of the impairment of the appellant's capacity to care for herself, as distinct from her children. In approaching the matter this way, the Judge followed the submissions of counsel and the common law as it stood when judgment was reserved on 2 May 2006. His Honour had been told that a draft bill to restore Sullivan v Gordon damages was "kicking around" (Black 168), but nothing more was done to address any wider claim for domestic assistance damages. 41 Judge Garling published his reasons on 7 July 2006 and entered verdicts accordingly. He heard argument about costs and addressed that matter on 18 August 2006. Formal orders were made on 25 October 2006. 42 On 20 June 2006 s15B of the Civil Liability Act 2002 commenced. This was before the reasons were published and the verdicts entered. The transitional provision inserted into Part 8 of Schedule 1 stipulated that s15B extended to civil liability arising before its commencement, except for proceedings that were finally determined before that commencement (see cl23(2)). The relevant effect of s15B was to restore Sullivan v Gordon damages for loss of capacity to provide domestic services but only with regard to the appellant's children at the time the claim arose. In other words, the appellant became entitled to domestic care damages extending to the impairment of her capacity to care for her two older children. 43 Regrettably, no one thought to draw this matter to the attention of the Judge or to amend the submissions framing the claim when judgment was reserved. It would appear that counsel representing the appellant at trial did not appreciate the retrospective operation of s15B and its capacity to apply to the instant proceedings which were not "finally determined" when s15B commenced. 44 The appellant submits that s15B would have enabled her claim for future domestic care damages to pass the statutory threshold in s15(3) of that Act. 45 The respondent submits that, had the matter been raised before judgment, the respondent would have asked for the matter to be relisted for the calling of further evidence and the making of further submissions. 46 The appellant responds by pointing to evidence led in the trial about the effect of the injury on her capacity to carry out domestic duties generally (Black 17, 49). Her husband also testified that, before the accident, the appellant did the cleaning, washing and ironing and cooking for the household. He took over these tasks after the accident. In the first nine months he was spending 6 or 7 hours a day doing household activities he had not previously done. Eventually the appellant resumed some cooking. She also attempted cleaning tasks, which had to be finished by her husband. Mr Guiney gave evidence that he spent a minimum of 30 hours per week performing tasks he did not do before the accident (Black 47-9). 47 The trial judge awarded $15,000 for past domestic assistance, basing this on a finding that the appellant would have needed approximately six hours a week assistance for herself for about 12 months. 48 As to the future, the judge found that the appellant would need three hours assistance a week as a result of the injury. Since, however, this did not overcome the threshold of six hours per week for a period greater than six months (Civil Liability Act, s15(3)) there was no award for this component (Red 71-72). 49 It is clear that the Judge confined himself to an award for domestic assistance referable to the appellant's incapacity to care for herself. That is what he was asked to do. And, when addressing Mr Guiney's evidence his Honour said (Red 70N): She clearly required assistance from her husband. He assessed it at about thirty hours a week and he probably did thirty hours a week, but because they had young children the actual amount I could award to her could not be in that area, even though he might have done that sort of work. 50 I agree with Einstein J, whose reasons I have had the advantage of reading, that it would be unfair to the respondents for this Court to award damages referable to s15B given that they had no opportunity to address such a case by evidence and submissions at first instance. There may have been evidence from the appellant and her husband relevant to such a case, but the respondents lost their opportunity to test it fully when the matter proceeded to judgment without the claim having been pressed. 51 I am also of the view that a case for a new trial on this issue has not been established. This is not just a situation where the trial judge applied the wrong law because he or she did not have the correct principles drawn to attention. In an adversarial system the Judge had to address the claims that were before him. Here the parties conducted the case on the basis that the law was as declared in CSR. It was later altered by statute but at a time when an application to reopen the case might have been made. None was made and the case proceeded to judgment. A new trial would be necessary to address the matter afresh. 52 I am not stating that the principles in Eggins v Brooms Head Bowling & Recreational Club Ltd (1986) 5 NSWLR 521 apply directly to a change in the law effected by statute after judgment is reserved. Rather, the applicable principle is that the court has a discretion to order a new trial in the interests of justice. What is done or omitted to be done at (or after) the trial is an important consideration that will affect the exercise of the court's discretion (see Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 39). There was ample opportunity to apply to reopen that was not done and in the exercise of the discretion it should not be allowed to be done now by way of a new trial. 53 The appellant submits, in the alternative, that the award of damages for past and future domestic assistance was flawed independently of the failure to apply s15B. 54 The Judge found that the appellant was entitled to domestic assistance damages on her own account because the injury to her left wrist incapacitated her in the performance of her normal housework (even though she is right handed). Her need was proved by the fact that she required the assistance of her husband. His Honour also accepted the evidence of Dr Conrad, who estimated a need of six hours per week in March 2005, to the evidence of Dr Stephenson (the doctor called by the builder) who would have allowed only three hours per week for assistance stemming from the wrist injury. 55 His Honour found that the need was for six hours per week assistance for the first 12 months after the injury and thereafter three hours per week, sometimes less (Red 71). 56 The appellant submits that, having accepted her husband's evidence that he was providing up to 30 hours per week additional domestic assistance after the accident, the judge erred in awarding past care damages on the basis of 6 hours, reducing to 3 hours per week. 57 I do not agree. The evidence of the doctors clearly addressed the extent of assistance for which compensation was being sought. It never rose beyond a need for 6 hours per week. Mr Guiney's evidence obviously extended to domestic work for the whole family during a critical period immediately after the accident, whereas the common law component is confined to the injured plaintiff's need for assistance for herself. In any event, the judge did not err in accepting the doctors' opinion as to the quantum of the need for assistance stemming from the injury. 58 The following orders should be made:

1. Appeal against first respondent on liability upheld with costs.

Set aside orders 6, 7, 8 and 10 made in the District Court on 7 July 2006. In lieu, verdict for the plaintiff against the first defendant for $96,100.

Set aside the Bullock order made on 18 August 2006.

Liberty to apply within 14 days for any relief appropriate to the cross-claims filed in the proceedings.

First respondent to pay appellant's costs of the appeal and to have a certificate under the Suitor's Fund Act , if qualified.

Appellant to pay the costs of the second and third respondents of the appeal. 59 GILES JA: I agree with Mason P. 60 EINSTEIN J: The proceedings 61 These proceedings concern an accident which occurred on 6 February 2002 at relatively newly constructed residential premises at 15 Angara Circuit, Glenwood. The appellant's husband was the lessee of the premises. The third respondent [third defendant at trial] was the owner of the premises. The first respondent [first defendant at trial] was the builder of the premises. The second respondent [second defendant at trial] had been appointed managing agent of the premises by the owner. 62 The appellant was injured when she opened the door to the upstairs bathroom, stepped into the bathroom and slipped on wet tiles. She fell backwards onto her left side and her left arm struck the tiles. Both she and her husband noticed a lot of water on the floor. Neither of them had seen any water in the upstairs bathroom before the accident. They had however noticed leaking of water into the downstairs bathroom. 63 For reasons outlined below the trial judge held that:

i. the second respondent had breached its duty of care owed to the appellant;

ii. the third respondent was also vicariously liable for the breaches of the duty of care committed by his agent, the second respondent;

iii. the case propounded against the first respondent failed.

The appeal 64 The grounds of appeal which are pressed fall into two categories:

i. The contention [ground 2] that since the trial judge found that the roof of the premises was defective in that a roof tile had been put 'in the wrong way', the first respondent should have been held liable; [To much the same effect ground 3 comprises a contention that the appellant ought to have succeeded against the first respondent on the basis that the premises were newly constructed and the roof was defective.] ii. matters concerning complaints relating to the damages award. 65 There are cross-contentions concerning the making by the trial judge of a Bullock order.

The trial judge's findings 66 The trial judge found as follows:

i. approximately 6 months after the appellant and her husband had moved into the premises, the appellant's husband had noticed water leaking in the downstairs bathroom; it appeared to be hot water coming down a light fitting [Red 52G];

ii. the appellant's husband had telephoned the second respondent's office and reported the problem. The second respondent had failed to respond to this report in any way;

iii. whenever the problem recurred, the appellant's husband would again telephone the second respondent's office. He had complained at least four times. Notwithstanding these complaints the second respondent simply never responded in any way;

iv. during a period of heavy rainfall at the start of 2002, the appellant's husband noticed a recurrence of the same problem;

v. approximately 1 week before the accident the appellant's husband again complained to the second respondent;

vi. following this complaint a plumber arrived at the house [on 1 February 2002] and advised the appellant's husband that he had put in a temporary plug which should fix the problem on a temporary basis but that he had been unable to get up onto the roof because of the rain;

vii. it continued raining and the problem continued. 67 The more precise finding [at Red 56X] was as follows:

i. there was a leak around the vent pipe; the water ran down the inside of the wall and then, via a light cord, dripped onto the downstairs bathroom;

ii. as the rain increased the leak became worse; the water running into the house built up and ultimately overflowed into the upstairs bathroom, spilling onto the floor;

iii. the appellant had fallen as a result of that water spilling onto the floor. 68 Somewhat curiously it appears that there was little or no evidence as to which tradesperson finally carried out the remedial work necessary to fix the problem. The evidence before the Court was that although the first respondent had, after the accident, received a complaint about the problem and had sent a maintenance supervisor out to the site, he had not been able to find where the roof leak had come from. He had looked at the vent pipe that went through the roof leading from the bathrooms but had not been able to see a temporary repair affixed around the vent pipe by means of tape. Indeed he had not even understood that it was said that water was coming through or around the vent pipe and it was not raining at the time that he went out to the site. Nor did he even know that the complaint was that the water was coming down the outside of the vent pipe. He was simply looking for any types of leak over that section of the roof [Black 90].

The finding with respect to the case against the first respondent 69 The trial judge found on the evidence that the first respondent did not have notice of the problem until after the accident. 70 At the trial the appellant had propounded a cause of action grounded upon the Trade Practices Act section 75AD which provides a remedy for the supply by a corporation in trade or commerce of defective goods manufactured by it, by reason of which an individual suffers injuries. The trial judge rejected this case out of hand. The section was inapplicable to the case at hand. There is no appeal from that decision. 71 The trial judge then reasoned that in the absence of the first respondent having been aware of the problem prior to the accident, the case against it must fail. Hence the finding of a verdict for the first respondent. 72 The appellant contends that the obvious inference which the trial judge was bound to draw from the evidence before him was that the roof leaked by reason of the negligent construction by the first respondent.

The admission on the pleadings 73 The amended statement of claim included the following allegation [at paragraph 8]:

"When the first defendant constructed and manufactured the said premises for the third defendant or otherwise the premises contained a defect in that from a vent or other location large quantities of water would enter into the roof of the premises and be deposited on the bathroom floor and elsewhere in times of rain" 74 The first defendant's notice of grounds of defence squarely admitted this allegation. 75 This circumstance although not mentioned by the trial judge in his reasons, is plainly of particular significance. 76 However as the first respondent has submitted, the judgment falls short of any finding as to the precise original cause of the leak. This is arguably one reason explaining the appellant's vigorous pursuit of the Trade Practices Act cause of action which has now been abandoned. Certainly the trial judge appears to have immediately moved from rejecting the Trade Practices Act claim, into the proposition that in the absence of the first respondent having been aware of the problem prior to the accident, the case against it must fail. Clearly this was an error as it does not treat with the appellant's case in negligence in terms of the cause of the leak being able to be sheeted back to faults by the first respondent in the alleged negligent construction. 77 These matters notwithstanding, the evidence before the trial judge was sufficient to discharge the appellant's burden of proving that on the balance of probabilities, the leak came in around the vent pipe. A report by an electrical services firm had made clear that water had been found leaking through roof tiles around a vent pipe, the water leaking down through the wall in the upstairs bathroom. For present purposes the trial judge is seen to have erred in failing to find that the first respondent was liable, as the cause of the leak is seen to have been from faults in the original negligent construction: cf Exhibit G [Blue 13J].

The significance of the claim in tort involving physical injury to the person 78 There are other matters germane for close examination. These are carefully treated with in Voli v Inglewood Shire Council (1963) 110 CLR 74 at 84-88. As Windeyer J observed (at 87) when harm enures, the problem for a Court is whether the proximate cause of it was the negligence of the person who made the faulty thing, or the negligence of a person who was to examine, test, or treat it, or the combined negligence of both persons. On occasion:

"if separate and independent acts or omissions of several persons have directly contributed to cause an injury, the first wrongdoer does not necessarily escape liability by proving that, though he was to blame, the injury would not have occurred but for the later negligence of another person…. Essentially the problem is one of remoteness; and of finding the cause of the damage in a particular case , not according to some philosophical concept of causation, but 'to fix liability on some responsible person'." [emphasis added.] 79 The present proceedings involved ordinary physical injury to the appellant caused by an act able to be sheeted home to the first respondent. This is generally a settled area of the law of negligence where depending upon the particular facts, a duty of care will be seen to arise: cf Bryan v Maloney (1995) 182 CLR 609 (at 617) per Mason CJ, Deane and Gaudron JJ. Their Honours (at 623) drew attention to the need to distinguish between relationships with respect to physical injury to person or property and relationships with respect to mere economic loss. 80 More recently in Woolcock Street Investments Pty Ltd v CDG Pty Ltd and Anor (2004) 216 CLR 515 ('Woolcock'), McHugh J at [66] likewise drew attention to the significance of distinguishing between ordinary physical injury to a person and cases concerning mere economic loss. Woolcock dealt only with economic loss. 81 The evidence before the trial judge in the present proceedings whilst plainly posing some difficulties, ultimately established a duty of care that was breached by the first respondent with respect to the defects which had led to the injury. The finding receives substantial support by reason of the above-described pleading admission. 82 For those reasons the second and third grounds of appeal succeed.

The appeal against the damages awards 83 The trial judge assessed non-economic loss on the basis of 26% of a worst-case: $33,500. 84 Past out-of-pocket expenses were agreed at $100. Future out-of-pocket expenses were allowed in the sum of $7,500. 85 For past economic loss the trial judge awarded a cushion of $10,000. 86 For future economic loss the trial judge awarded a cushion of $30,000. 87 The trial judge allowed $15,000 for past domestic assistance and found that the appellant's future need for domestic assistance would not exceed three hours per week, giving no allowance in that regard (since it did not meet the relevant threshold). There was no evidence adduced in respect of the question of whether in the future at some stage the appellant may need more than 6 hours a week domestic assistance for a period greater than 6 months (i.e. the relevant threshold). Hence the appellant failed to overcome the threshold for any allowance for future domestic assistance.

Non-economic loss damages 88 The appellant has submitted that the trial judge erred in awarding non-economic loss damages which were manifestly insufficient. 89 It is apparent that the award for non-economic loss was made after findings that the burn to the appellant's left elbow formed no part of the subject claim [Red 67N], that the appellant suffered an aggregation of a pre-existing asymptomatic condition in her left wrist [Red 67O] and that the pre-existing but un-united fracture would cause degenerative changes [Red 67W]. The issue is to whether the finding of 26% of a worst-case was open [Red 68E]. In my view the finding was clearly open. Economic loss damages

90 The appellant's submission that the onus of proving the effects of the previous injury to the wrist fell upon the respondents is misconceived. The defendant bears only an evidentiary burden as to the pre-existing condition and its future effects: see Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164 at 168 (per Barwick CJ, Kitto and Taylor JJ) and 170-171 (per Windeyer J). In short it is for the plaintiff to satisfy the tribunal of fact on the whole of the evidence as to the extent of the injury caused by the defendant's negligence.

91 The evidence was that the appellant had a pre-existing ununited fracture in the mid-waist of the scaphoid (in her left wrist) that was showing signs of degenerative change and likely to affect her in the future. The trial judge took note of Dr Kirkham's opinion, which was formed during the operation, as well as the similar observations which were made by the other doctors on x-ray. In light of this evidence the trial judge was in a position to draw the appropriate inferences which flowed from them. The trial judge considered the medical evidence [at Red 62G et seq], ultimately finding that he preferred the evidence of Doctors Ellis and Stephenson resulting in the finding [at Red 67L-Z]. In assessing the appellant's economic loss claim, the trial judge clearly held that she suffered from a pre-existing condition that was likely to affect her in the future. No appellable error is apparent in this regard. 92 Additionally, during treatment to her left wrist after the accident, the appellant sustained a burn to her left elbow which was found to be further causative of her restricted ability to work. For the nine-month period following the surgery to her wrist, the evidence was that the burn to her left elbow was very sore and painful [Black 15D]. As the second and third respondents have contended, Dr Kirkham agreed by his settlement of that claim that his negligence had caused loss to the appellant. The appellant chose to settle that case for what was described as "general damages" only.

93 Nor is there substance in the appellant's claim that the trial judge's reasoning was tainted by what I accept was an incorrect finding of fact, namely that she had not worked for 18 years. 94 In all of the circumstances, that error is seen to be insignificant. The facts were as follows:

i. the appellant gave evidence that she had intended to start her own business as a beautician [Black 7B-E]. She had taken the first step in fulfilling this intention by enrolling in a two-week course that was set to commence in August 2001. The course related to manicures and pedicures [Black 5Y-6C]. The appellant did not attend the course in August 2001, but deferred it to February 2002 [Black 6J]. Prior to the accident, she had not worked in the beauty industry for 18 years [Black 28M].

ii. During the period between leaving the beauty industry and the accident the appellant, on the evidence, had undertaken some limited clerical work for her parent's cleaning company and some 'hostess' work at an art gallery that was owned by her husband This work was not obtained by her by reference to the skills that she had on the open labour market. After the accident she had not sought any work with her parents' company, even though she had discussed her limitations with her mother [Black 30M-31C]. Her husband's art gallery was sold prior to and for reasons unrelated to her capacity [Black 29Y-30D]. 95 The appellant gave evidence that she had not sought any work between the accident and the date of the trial because she was caring for young children at home and the children effectively imposed constraints in terms of what she was able to do, in terms of joining the workforce [Black 31D-G]. 96 As the second and third respondents have submitted, the appellant's case on economic loss was additionally speculative because it was primarily based on starting her own business as a beautician. She had not previously tried to set up her own business. The appellant's evidence did not reflect any advanced business planning, nor was there anything particularly significant in the two-week nail course that she had enrolled in.

97 The appellant's contention in respect of starting her own business or even obtaining employment in the beauty industry had not relevantly considered what had actually occurred after the accident and prior to the trial: the appellant had had a third child. She gave evidence that she would have taken 12 months maternity leave if she had commenced the business or presumably obtained employment, and any calculation of past economic loss would clearly have to reflect this parameter. 98 As the second and third defendants have submitted the trial judge was faced with a difficult decision, because there were so many variables in the appellant's situation, but especially by reason of the facts that she had not exercised her earning capacity in the beauty industry for about 18 years before the accident and had not exercised her earning capacity in the open labour market for that same period. Additionally, some of her loss of capacity was held by the trial judge to have been caused by the prior fall (hence not being compensable) or that at the least it would have been the natural consequence (deterioration) of her pre-existing condition.

99 There is no substance in the contention that too great a discount was made for the appellant not having worked for a number of years prior to the accident. 100 In the result no appellable error is shown to have been made in the trial judge's assessment of either past or future economic loss. The awards of a buffer of $30,000 for future economic loss [Red 70G] and of a buffer of $10,000 for past economic loss are seen to have been within the realistic range open on the evidence.

Grounds of Appeal 11-15 - Damages for loss of capacity to provide domestic services ( Sullivan v Gordon - type damages) 101 Sullivan v Gordon damages were pleaded and particularised since they were available at the commencement of the action (Ms Norton T28:40). 102 At trial, Sullivan v Gordon damages were no longer available (in CSR Limited v Eddy [2005] HCA 64 the High Court had ruled against the availability of such damages) and this was conceded by the appellant at trial. Ms Norton for the appellant (T27:16) made clear that in submissions during the trial, it had been pointed out that an amendment was in the process of being put in place but that the amending legislation had not been passed and that there was no detailed reference to its terms. 103 Submissions concerning domestic assistance damages were made on the basis that the High Court of Australia had ruled against the availability of Sullivan v Gordon damages in CSR Ltd v Eddy [2005] HCA 64. 104 The trial judge reserved his judgment in the proceedings on 2 May 2006. 105 Section 15B of the Civil Liability Act 2002 ('damages for loss of capacity to provide domestic services') came into effect on 20 June 2006 (while the trial judge was still reserved) [cf Civil Liability Amendment Act 2006]. The section outflanked the decision in CSR Limited v Eddy by restoring Sullivan v Gordon-type damages under a new regime and had retrospective force save where the proceedings were 'finally determined' prior to commencement: clause 23 of schedule to the Civil Liability Act 2002. For present purposes the effect of the amendment was to stipulate damages as available for what was actually spent looking after the appellant for her own benefit in order to compensate her for her loss of capacity to provide gratuitous domestic services to her 2 dependent children.

106 Neither the appellant (nor any other party) sought to re-list the matter before the trial judge. Counsel for the appellant conceded that it was not until the submissions had been completed and s15B was reviewed that it was noticed that it had retrospective application. This mistake was the reason why it was not taken up with the trial judge. (T30:5) 107 The trial judge delivered judgment on 7 July 2006. The District Court proceedings were not 'finally determined' until 18 August 2006. The judgment in the District Court proceedings did not take effect until the date when the judgment was given (Part 36 Rule 4 UCPR). 108 No party considered approaching the trial judge on this issue after the Judgment had been given. 109 The appellant submitted that on what was a common mistake at least between the plaintiff and trial judge, the damages were determined on a wrong basis: T28:45. 110 If s15B damages were to be calculated, the amount to be awarded would be dependent on the appellant's circumstances at the time of the liability. As such, the damages are to be limited to the appellant's two older children born prior to the accident, with her husband not being regarded as a dependent under the Act. (T26:40) 111 The appellant's submission was that under the Sullivan v Gordon framework and s15B, there was a threshold that needed to be met - being that there was a reasonable expectation that, but for the injury to which the damages relate, the claimant would have provided the domestic services to her 2 older children for at least 6 hours per week for at least 6 consecutive months (s15B(c) of the Act). 112 It is necessary to recall that the trial judge found that the appellant was entitled to past domestic assistance damages because she had required more than 6 hours week of assistance for 12 months. The trial judge did not give her damages for any future domestic assistance because at the time of the trial she required 3 hours a week of care and that she might have required more when she had surgery on her wrist in the future, but that there was not enough evidence and so the appellant did not reach the necessary threshold. 113 Mr Williams (for the second and third respondents) submitted that if the appellant had wanted to take advantage of the favourable s15B introduction once it had been passed, it was incumbent on the appellant to go back to the trial judge and seek to re-list the matter prior to the delivery of the judgment to request an allowance for future domestic assistance damages. 114 The second and third respondents have submitted that their approach to the case would have differed in that, had the appellant (while the judgment was reserved) asserted that she sought to rely on the introduction of s15B, the second and third respondents would have recalled the parties and witnesses and asked for the matter to be re-listed to hear further evidence on that point. (T45) 115 In my view the issue is resolved in terms of considerations of natural justice, seen in terms of the forensic position: cf Calin v The Greater Union Organisation Pty Ltd (1991) 100 ALR 746 per Mason CJ, Deane, Toohey and Mc Hugh JJ [at 750]: "The Court's jurisdiction to order a new trial depends upon the demands of justice …what is done or omitted to be done at trial is an important consideration and will affect the exercise of the court's jurisdiction". 116 Plainly the respondents to the appeal would suffer procedural unfairness if this Court were to make the findings of fact on the issue because the respondents have not had the opportunity to put their case in full on this issue to allow a trial judge to make the relevant findings. 117 Nor is it appropriate to remit only the issue raised by section 15B to the trial judge for reconsideration. 118 The appellant should be restricted to her case presented at trial.

The Bullock Order 119 The appellant obtained a Bullock Order that the second and third respondents reimburse the plaintiff for the costs payable by the plaintiff to the first defendant. 120 Plainly enough if the appeal against the builder (first respondent) is presently upheld, section 75A (10) of the Supreme Court Act 1970 requires this Court to make whatever order was called for in that circumstance. Equally plainly the order called for in that circumstance would have been for each defendant to pay the costs of the plaintiff. 121 For those reasons the orders of the court require to set aside the Bullock order. 122 In the result the orders proposed by the President should be made. **********

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