Liverpool City Council v Altaf Laskar

Civil Liability Act 2002 LEGISLATION CITED: Civil Liability Amendment Act (No 50 of 2006) Uniform Civil Procedure Rules 2005

Oaktwig Pty Ltd v Williams [2008] NSWCA 106 Suttor v Gundowda (1950) 81 CLR 418 at 438 White v Operland [2001] FCA 1333 Coulton v Holcombe (1986) 162 CLR 1 at 7/8 Metwally v University of Wollongong (1985) 68 ALR 68 at 71-72 O'Sullivan v Watson (1986) 7 NSWLR 693 at 702G-703C Amaca Pty Limited v Novek [2009] NSWCA 50 at [27] - [29] CASES CITED: Griffiths v Kerkemeyer (1977) 139 CLR 161 Van Gervan v Fenton (1992) 175 CLR at 332-333 CSR Limited v Eddy [2005] HCA 64; [2005] 226 CLR 1 Sullivan v Gordon (1999) NSWCA 338; (1999) 47 NSWLR 319 Marsland v Andjelic (1993) 31 NSWLR 162 Brunskill v Sovereign Marine and General Insurance Co Limited (1985) 59 ALJR 842 at 844; 62 ALR 53 at 73 Galea v Galea (1990) 19 NSWLR 263 at 264 Yarrabee Coal Company Pty Limited & Anor v Lujans [2009] NSWCA 85 per Beazley JA

PARTIES: Liverpool City Council v Altaf Laskar

COUNSEL: Mr J Maconachie QC; J Stewart - Appellant Ms Norton SC; Ms M Fraser - Respondent

SOLICITORS: McCulloch & Buggy - Appellant Brydens Lawyers - Respondent

LOWER COURT JUDICIAL OFFICER: Judge Ainslie-Wallace

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 2009/40260 DC 4548/2006

BEAZLEY JA MACFARLAN JA WHEALY J

TUESDAY 20 April 2010 LIVERPOOL CITY COUNCIL v Altaf LASKAR Judgment 1 BEAZLEY JA: In my opinion, the appeal in this matter should be dismissed. The principal ground argued by the appellant was the proper construction of the Civil Liability Act 2002, s 15B(2). In this regard, as Whealy J explains at [15], the appellant argued that the award of damages was not authorised by s 15B on the basis that the services provided to the respondent's daughter were not "domestic services" within the meaning of s 15B(2). In submissions in reply, the appellant accepted, without conceding, that some of the services provided by the respondent to his disabled daughter may have fallen within the description of "domestic services" within the meaning of 15B. 2 At trial, counsel for the appellant had expressly conceded that the care the respondent provided to his daughter fell within the meaning of "domestic services" in s 15B. The passage of transcript in which the concession was made is set out in the reasons of Whealy J at [28]. In my opinion, counsel's statement that "para (b) would seem at this stage to be satisfied", in circumstances where no other submission on the issue was advanced, was an acceptance that the respondent's claim for damages to compensate for the care he could no longer provide to his daughter fell within s 15B. 3 Senior counsel for the appellant sought to argue that there was no such concession. He referred to the further statement by counsel at trial, "I may have misconstrued it", as indicating that the appellant had raised a construction issue in respect of s 15B. However, the construction issue raised by counsel at trial was a different one. It was an argument that s 15B did not apply to domestic services provided to a child after the child had reached his or her legal majority, that is, at age 18. The "construction issue" now sought to be argued was not raised at trial. 4 Whealy J, at [30] and [31] has referred to the principles which apply when a new point is sought to be raised on appeal. Stated briefly, those principles are: a new point may be argued on the appeal even where it has been disclaimed below: see Oaktwig Pty Limited v Williams [2008] NSWCA 106; however, the Court will not permit that course where the point may have been answered by evidence: see Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418 at [9]; Oaktwig at [18]. These principles exercised the minds of the High Court recently in Zheng v Cai [2009] HCA 52; (2009) 239 CLR 446. The Court found it sufficient to footnote the authorities, otherwise confining itself to the observation, at [16], that the "respondent should have been bound by the presentation of his case at trial". In Zheng v Cai, the Court of Appeal had allowed a new point to be raised on appeal and found for the respondent on that point. The High Court noted, at [16], that the Court of Appeal had thereby "so prejudiced the applicant's position as to call for remedy by this Court". 5 The appellant here submitted that, as the point it now seeks to argue is a matter of statutory construction, there was no prejudice to the respondent. The appellant pointed out that at trial, the most obvious time the construction argument would have been raised was in final address, after the case for both parties had been closed. The respondent could not have raised any objection at that time to the appellant doing so. It was submitted, therefore, that the respondent was in no different position on the appeal. In particular, as the respondent could not have adduced any further evidence at trial after the close of his case, he could not object on the appeal on the basis that he was prejudiced. 6 The appellant further submitted that the proper construction of s 15B was a matter of importance that comes before the Court frequently and that the proper construction of the section deserved the attention of the Court. In effect, the appellant sought to argue the construction issue on appeal as if it were a test case. 7 The respondent submitted, however, that if the matter had been raised in final address, he may have made an application to re-open his case (see Suttor v Gundowda at [9]). The respondent also pointed out that an amended defence had been filed in this matter after the trial had commenced (this may not be entirely accurate: see below) and after the statement of particulars had been filed. He submitted that if the appellant intended to resist this claim because it did not fall within s 15B, that should have been put in issue in the pleadings. 8 The Uniform Civil Procedure Rules 2005 (UCPR), r 14.14(2) provides, relevantly: "(2) In a defence or subsequent pleading, a party must plead specifically any matter: (a) that, if not pleaded specifically, may take the opposite party by surprise, or (b) that the party alleges makes any claim, defence or other case of the opposite party not maintainable …" 9 The respondent's claim for damages under s 15B was not particularised in his statement of claim. No criticism can therefore be made of the appellant for not raising the matter in its original defence. However, the claim is fully particularised in the respondent's amended statement of particulars filed on 23 June 2008. (It would appear that the s 15B claim was particularised earlier than that, as the amendments to the statement of particulars related to the respondent's claim for economic loss due to surgery which he underwent in April 2007.) The respondent filed an amended defence on 21 August 2008. The trial commenced on 2 September 2008. 10 In my opinion, the argument now raised by the appellant is one that would take the respondent by surprise if not pleaded and is also an argument which alleges that this aspect of the respondent's claim is not maintainable. Accordingly, it is one that should have been pleaded in accordance with UCPR, r 14.14(2), or at least notified to the respondent. See generally the comments of Allsop J (as his Honour then was) in White v Overland [2001] FCA 1333, at [4], in relation to the need for parties to take steps to ensure that the opposing party is fully cognisant of what issues at trial are in dispute. 11 I am also of the opinion that the Court should accept the submission of senior counsel for the respondent that, had it been aware the appellant was contending that, as a matter of construction, the respondent's claim did not fall within s 15B because he had been providing physiotherapy and therapeutic services to his daughter, the respondent may have conducted his case differently, including by way of giving and or calling additional evidence as to the nature of the tasks he undertook. The Court should also accept that had the matter been raised in final address, he would have sought leave to re-open his case. 12 For these reasons, I would not grant leave to the appellant to raise the construction question for the first time on this appeal. I would only add that I agree with Whealy J's reasons on the construction argument, which vindicates the position taken by the appellant's counsel at trial. I also agree with Whealy J's reasons for dismissing the second issue on the appeal. I join in the orders that his Honour proposes.

13 MACFARLAN JA: I agree with Whealy J and also with the additional comments made by Beazley JA. 14 WHEALY J: On 24 December 2005, Altaf Laskar (the Respondent) fell on the footpath of Blamey Road, Wattlegrove. He had caught his toe on the raised edge of a footpath slab that formed part of a damaged footpath under the responsibility of the appellant Council. In the fall, the respondent suffered significant injury to his knee. He fractured his patella and disrupted the extensor mechanism of the knee joint. The respondent sued the appellant. After an extensive hearing, the trial Judge found that the appellant had been negligent and was, as a consequence, liable for the respondent's injury. There has been no appeal against the liability finding. Damages were awarded in the sum of $621,325.87. The appellant was ordered to pay the respondent's costs. 15 This appeal relates to one aspect only of the damages awarded by the trial Judge. The respondent had been awarded $415,786.56 (being for the past $102,312.00 and for the future $313,474.56) in respect of a loss of capacity to provide domestic services to his daughter, Nabila. The appeal raises two related matters in respect of that aspect of the damages award. The first is the principal matter sought to be argued. This is an assertion that the trial Judge erred in her construction of s 15B(2) of the Civil Liability Act 2002. In this ground of appeal, the appellant seeks to argue that the award of damages was not authorised by s 15B of the Civil Liability Act on the basis that the services provided to the daughter (or at least some of them) were not "domestic services" within the meaning of s 15B(2) of the legislation. 16 The second ground of appeal is that the finding of an additional four hours care required to be carried out by the respondent's wife in connection with the post-accident provision of domestic services to the daughter was "glaringly improbable" on the evidence. 17 There is an issue as to whether the argument the subject of the first ground of appeal was raised in the Court below. The respondent contends that it was not so raised. It will be necessary for the Court to determine whether the appellant should be allowed to raise this new argument on the hearing of this appeal, if in fact it was not raised below.

The findings of the trial judge 18 The respondent was found to have suffered a significant injury to his knee. Immediately after the accident he was taken to hospital where he was operated on to repair the damage to his knee. He was released home on crutches with a knee brace. On his release, he underwent physiotherapy between February and May 2006 and remained using crutches to get around. His knee was clamped and bandaged during all of this time. 19 At the commencement of the trial, the respondent described his knee as "continuously painful". He said that he could keep his knee bent for five minutes without pain and then he had to move and stretch his leg. He was unable to kneel and found squatting difficult. He was unable to climb stairs readily. Standing on the joint for longer than 10 minutes caused him pain. 20 The respondent underwent an arthroscope between the adjourned dates of the hearing before the trial Judge. This was done in an attempt, mid-trial, to improve the function of his knee. Unfortunately, the second operation and the subsequent physiotherapy did not bring about any improvement in the knee. 21 The medical evidence demonstrated that the respondent had fractured his patella and disrupted the extensor mechanism. The fracture was fixed with wires during the first operation. These were not removed until October 2007. An MRI conducted in January 2008 noted a torn medial meniscus with cartilage wear to the bone. Dr Ellis, who conducted a medico-legal assessment of the respondent, said in September 2006 that on examination the respondent had pain over the whole knee and it was weak, slow to move and was painful. The respondent told Dr Ellis that he could not run, kneel or squat. He complained of pain in his knee after driving for a period of time. He limped if he had to walk quickly and had pain in the use of stairs. His knee hurt more if it were flexed. In July 2008, Dr Ellis found that the respondent had a ligamentous strain in his back because of the limp in his mode of walking. The torn meniscus resulted from the fall and showed arthritic change. It was Dr Ellis' opinion that the respondent had significant chondral damage and that this would inevitably become worse. Each of these opinions was substantially accepted in the medical reports tendered on behalf of the appellant. The extent of the respondent's injury, the trial Judge found, was not in dispute and his disabilities were permanent. 22 The medical evidence established that the function of the respondent's knee would deteriorate with advance of the arthritis, which was presently occurring. He was left with reduced function in his knee and would continue to experience pain in the knee. 23 As to the claim for loss of capacity to provide domestic services, I will set out the trial Judge's findings in full. They are in two sections. In the first section her Honour said: - "The plaintiff and his wife have two daughters. The elder works and lives away from home. The younger, Nabila is 14 and has Spina Bifida. She is wheelchair bound and requires a good deal of physical assistance every day. She is unable to shower or use the lavatory without assistance. She needs a catheter to pass urine and the catheters must be inserted a number of times during the day. Nabila attends school each day. In order to get into the car she is assisted from the wheelchair into the car by a sliding board. Her wheelchair folds and is lifted into the boot of the car. In the course of any one day, the plaintiff said that he would have lifted his daughter between six to ten times. She is unable to assist in her own movement. To assist her mobility, the plaintiff and his wife engage in massage and movement of their daughter's arms and legs. The plaintiff and his wife were taught some basic physiotherapy to work on their daughter at home to maintain muscle tone. The plaintiff's wife said that it involved a series of stretches of each limb and massage. Ms Nahar said that it takes about 2 hours each session. To do it, Nabila lies on the bed and Ms Nahar and the plaintiff kneel on the bed above her. Each evening Nabila is put into a special brace for sleeping. Her legs are first massaged before the brace is applied. Before the accident, Ms Nahar did this in the morning and the plaintiff would attend to the massage in the afternoon. Before the accident the plaintiff assisted in all aspects of Nabila's care. He was able to get Nabila into the car without assistance. Since the accident the plaintiff cannot kneel. He needs help from his wife to get Nabila into the car using the sliding board. Ms Nahar estimated that she now has an extra 4 hours care each day for Nabila because her husband is not able to help as he did before the accident." 24 The second section is at Red Appeal Book 33 - 34: - "Ms Nahar said that since the plaintiff's accident she has been called on to do more for her daughter than in the past. She estimated that she spends about 4 hours more each day in her care because the plaintiff is not able to do that. The evidence about the regime massage of Nabila came from Ms Nahar and not the plaintiff. The defendant argued that there was no mention of not being able to give assistance to his daughter through massage in any doctor's report. While there was no challenge to Ms Nahar to suggest that she was wrong in the amount of additional time she estimated spent on massage and otherwise attending to Nabila, it was argued that 4 hours per day was not supported by the plaintiff's evidence. There was no dispute that Nabila needs considerable time and attention nor that she received it from both parents before the plaintiff's accident. The plaintiff was an impressive witness. He did not appear to make exaggerated claims about his injuries. His wife, Ms Nahar appeared to be a witness doing her best to give an accurate account of her evidence. In the circumstances of this case, the fact that the plaintiff himself did not give evidence about the time he spent in assisting with Nabila's massage, nor refer to it in discussion with the various doctors, does not cause me to doubt that it is so, nor to discount Ms Nahar's evidence that she is now required to attend to the massage herself and the extra time taken amounts to 4 hours each day. There was no suggestion that Nabila's condition would improve to the extent that she could care for herself in the future. The issue is whether it is reasonable to allow damages for past and future domestic assistance of 4 hours per day, that is the extra time Ms Nahar now spends caring for Nabila because the plaintiff cannot do it." 25 The trial Judge then records the only legal argument presented on behalf of the appellant. This was to the effect that s 15B of the Civil Liability Act 2002 did not permit an award of damages for the loss that extended beyond the time that Nabila reached 18 years. Her Honour rejected that challenge. It seems there was no suggestion made in the submissions on behalf of the appellant to the effect that the services, the subject of the relevant claim, were other than gratuitous domestic services to a dependant of the respondent, although this was not conceded on appeal. The ultimate findings made by the trial Judge were expressed in the following terms: - "As a result of his incapacity arising from the accident the plaintiff can no longer assist in the care of Nabila as he has in the past and that his wife now does more to care for Nabila than she did before the accident. I propose to allow past damages for domestic assistance for 28 hours per week at $21 per hour. As to the future, the plaintiff claimed damages at the same rate for 20 years on the basis of the plaintiff's life expectancy with a 10% reduction for vicissitudes. The plaintiff's claim assumes that Nabila will continue to live with her parents presumably until they are too enfeebled to care for her. While there was no evidence that sometime in the future she might be able to live independently in assisted care or that some other arrangements might be made for her care, it would not be reasonable to assume that but for the accident the plaintiff would have cared for Nabila for the balance of his life. I propose to make an award of damages at the rate of 28 hours per week at $21 per hour over the claimed period, that is 20 years but reduce that amount by 20% to reflect the circumstance that sometime in the future, Nabila might wish to live away from her parents, albeit with the provision of care by people other than her parents." 26 Her Honour then awarded damages for loss of capacity to provide domestic services in the amounts mentioned earlier.

A new point is taken on appeal 27 On appeal, the appellant's principal submission addressed the proper construction of s 15B of the Civil Liability Act 2002. The respondent has submitted that the point in issue was raised for the first time in this appeal. Ms Norton SC, who appeared with Ms Fraser for the respondent, submitted that the construction argument had not been raised in the Court below. Senior counsel submitted that the Court, in those circumstances, should not permit the appellant to raise the new matter in this Court. Further, it was suggested that the respondent would be prejudiced if the appellant were permitted to raise this argument for the first time on appeal. At trial, evidence was not called to draw any distinction between the types of assistance which were provided by the plaintiff and his wife to their daughter, Nabila. If such an argument had been raised at trial, Ms Norton argued, the respondent would have had the opportunity to adduce relevant evidence to address the type of distinction inherent in the construction argument now advanced for the appellant. It was argued that the respondent has lost the opportunity to adduce evidence of that kind. 28 Mr Maconachie QC, who appeared with Mr Stewart for the appellant, did not concede that the point had not been taken below. It is necessary to determine this issue at the outset. The transcript of the submissions is in the Appeal Books. Trial counsel for the plaintiff, Mr Lidden SC, made his submissions on the claim for damages for loss of capacity to provide domestic services at pages 215 - 216 of the transcript. This was identified as a claim pursuant to s 15B of the Civil Liability Act 2002. Mr Stewart for the defendant, made his submissions on the s 15B claim at transcript 232 and 233. There was also a brief reply by Mr Lidden at pages 233 - 234. I will set out the material contained in the transcript at those pages: - " STEWART: Could I turn to section 15B of the Civil Liability Act and I must say that I was reading the act at the bar table this morning and I looked at section 15B which seems to be the section under which the claim in respect of Mr Laskar's--- HER HONOUR: What do they call it? STEWART: Damages for loss of capacity to provide domestic services. It's my submission that a fair reading of the section takes into account two types of care. One is respite care which is to be provided by a person other than a claimant to a dependent who's aged or frailed or who suffers with a physical disability with the primary purpose of giving the dependent or the claimant or both a break from the usual care arrangements. As I understand your Honour there's no such claim articulated or (b) if the dependent is a minor but without permitting paragraph (a) any care that is provided to the dependent by a person other than the claimant where "(i) the person is a parent of the dependent…dependent". Paragraph (b) would seem at this stage to be satisfied and your Honour I must say I'm not aware of any decision on this and I may have misconstrued it, but in my submission a fair reading of it is the liability will cease when Nabila turns 18 . (Emphasis added). HER HONOUR: That would seem to be a lacuna in the law, wouldn't it, because it provides for care to a dependent minor and respite care for a frail person but if you have the care of a disabled young adult you get nothing for that. STEWART: Yes, I suppose your Honour because I don't know your Honour, to impose some limits on the liability for indirect, as it were, damage suffered by the plaintiff and perhaps the benefits that may flow on someone who's disabled reaching majority, I don't know. I don't intend to offer reasons why. All I say is that is in my respectful submission the resile of a fair reading of section 15 me. I don't wish to make any submission. I think Dr Bodel who's usually regarded as pretty down the line regarded the plaintiff when he last saw him as deserving of about 2 hours assistance himself. I think in his earlier report he said 4 hours. Dr Burke in his report on page 6 when he saw him said there would be no current requirement for domestic assistance but that--- HER HONOUR: He couldn't lift or kneel. STEWART: Yes. So they are both practitioners qualified by the defendant. HER HONOUR: The difficulty is Mr Laskar probably like a lot of people with disabled children focussed entirely on the things that he couldn't do for Nabila and nothing about what he can't do for himself, pushing the lawn mower or whatever, so other than Dr Bodel's opinion I don't have much. STEWART: I know that I haven't been as helpful as perhaps your Honour would have asked in respect of hours and times, but all I wish to do in relation to those damages is to bring up those points. HER HONOUR: Thank you. Mr Lidden. LIDDEN: Perhaps I will deal with the last point first. HER HONOUR: What do you say about that, the 15B? LIDDEN: It's got nothing to do with this case, (b) dealing with minors, has your Honour got the act thee? HER HONOUR: Of course. LIDDEN: The bit which Mr Stewart read out is the definition of assisted care. Assisted care means respite care or (b) if the defendant is a minor any care provided to the dependent to any person other than the claimant where the person is a parent and the care includes the provision of accommodation. Dependents, which is the important definition section, means a child, grandchild, in this case child with no restrictions on age. HER HONOUR: But a child is a child. Someone of 21 is not a child. LIDDEN: You can be 105 and still be a child, the child of someone. HER HONOUR: You mean a minor. LIDDEN: It's not a minor. It says a child. It is to be highlighted against the use of a minor in the definition of "assisted care". Assisted care for relevant purposes here is not what I'm seeking is in respect to minors. That's provided for by subsection 3 of section 15B assisted care. It has nothing to do with this case. Subsection 2 which is the relevant section here just says "damages may be awarded…to the claimant's dependents". That's it. There's a restriction on it 6 hours a week for 6 months. That's why I haven't made a claim for the claimant himself. He doesn't exceed his own threshold. The claim is made for Nabila. You Honour can only award this care under subsection 2 if you are "satisfied that in the case of any dependents of the claimant of the kind referred to in paragraph A of the definition of dependents", that's a child not a minor, "the claimant provided services to those dependents before the accident" well he did, "the claimant's dependents were not or will not be capable of performing the service themselves" that's obviously so and "there's a reasonable expectation if the injury hadn't happened the claimant would have provided the services to its dependents for at least the threshold". That's all that's necessary to be satisfied the legislature has taken into account disabled people. It would be astonishing in these days particularly when this is about the only example that can be thought of because this occurred after the High Court ascribed the law stated in Sutherland and Gordon damages had never existed. This section was put in to remedy the removal of Sutherland and Gordon damages. It would be remarkable if disabled people were left out. That's the reason why it's applicable. The reason why I haven't done anything about the little bit of domestic assistance Mr Laskar needs is he's under the threshold and it won't avail him whether I approve it 2 hours a week or 4 hours a week. Can I remind your Honour; apparently Mr Stewart is a bit unhappy that I did not prove this twice, but once is generally enough, but I took the plaintiff's wife through the detail of what she had done and she said it was four hours, at page 98. But the plaintiff said, at page 15 line 40, what was wrong with the plaintiff, (Read). Was generally confined to a wheelchair, cannot use the toilet, cannot take showers and needs catheters, and so on." 29 It seems clear from Mr Stewart's remarks that the only construction argument he raised was one that suggested that the respondent's damages for loss of capacity to provide domestic services would cease when Nabila turns 18. In fact, counsel said - "Paragraph (b) would seem at this stage to be satisfied". Mr Stewart's remark that he "may have misconstrued it" appears to me to be confined to that particular construction point and to no other. That argument was, it seems, untenable and the trial Judge, as I have said, rejected it. It has not been pursued in this appeal. I can find no suggestion in Mr Stewart's submissions that he took or reserved the point now in issue. 30 A party is not permitted to raise a new point on appeal if the point could have been cured in the Court below. (Suttor v Gundowda (1950) 81 CLR 418 at 438; Coulton v Holcombe (1986) 162 CLR 1 at 7/8; Metwally v University of Wollongong (1985) 68 ALR 68 at 71-72; O'Sullivan v Watson (1986) 7 NSWLR 693 at 702G-703C; Zheng v Cai [2009] HCA 52; (2009) 239 CLR 446 at [16]). 31 Mr Maconachie submitted that the principle allows for exceptions and that one exception, frequently invoked by the Courts, is where there is "a need for statutory interpretation" (Appellant Practice by Blake & Anor, Federation Press, [2000] at page 40). Senior counsel submitted that the point sought to be raised here is one involving the proper construction of a statute that governs claims regularly brought before first instance Courts. In those circumstances, it was submitted that the direction of this Court on this important controversy is necessary "for the orderly functioning of the law". 32 The resolution of this issue is not one of significance in relation to the outcome of this appeal as the ground of appeal sought to be raised by the appellant was fully argued before this Court and in my view should, for the reasons I give below, be rejected on its merits. If it had been necessary to decide the issue, I would not have permitted the point to be raised as, for the reasons put by Ms Norton SC (see [33] above), the respondent would be prejudiced if the point were allowed to be raised for the first time on appeal. As she submitted, the course of evidence at the trial may well have been different if the point had been raised at the trial.

The construction argument 33 Mr Maconachie refined the point in issue during his oral submissions. Senior Counsel argued that s 15B did not authorise the trial Judge to find that the care provided to Nabila in this matter by the respondent and his wife (or at least a good deal of it) fell within the concept of domestic services. Mr Maconachie did not attempt to define the boundaries of his suggested construction of s 15B with any degree of precision. He focused, however, on those care services that approached or equated to nursing or palliative care. Specifically, the trial Judge had found that Nabila was unable to shower or use the lavatory without assistance. She required a catheter to pass urine and the catheters had to be inserted a number of times during the day and once during the night. She was wheelchair bound and required assistance for movement 24 hours a day. In order to maintain her muscle tone, the plaintiff and his wife had between them undertaken a number of daily sessions of stretching Nabila's limbs, including massaging them and moving them around. She had to be put into splints in the daytime, and at night into a special brace for sleeping. Her limbs were also massaged on these occasions. These types of services, the appellant maintained, were not, upon the proper construction of s 15B, domestic services. Rather they were nursing or palliative care services, which the section did not recognise. 34 The appellant's arguments took as their background the existing state of the law on the relevant topic prior to the creation of s 15B in 2006. It then focused on the language of s 15B and its context in the Civil Liability Act 2002 especially its relationship to s 15. Both parties referred the Court to a convenient summary of the legislative history as it had been recounted by Campbell JA in Amaca Pty Limited v Novek [2009] NSWCA 50 at [27] - [29]: - " Legislative History [27] In Sullivan v Gordon (1999) NSWCA 338; (1999) 47 NSWLR 319 this Court held that when tortious conduct injured a plaintiff in a way that prevented the plaintiff from providing care to other members of the plaintiff's household, the loss of the capacity to provide that care was compensable as "compensation…for the value of services of a domestic nature" under s 72 Motor Accidents Act 1998. In reaching that conclusion the Court accepted, and evidently approved of, a concession by counsel that damages of that kind were recoverable under the common law. [28] The High Court in CSR Limited v Eddy [2005] HCA 64; [2005] 226 CLR 1 over ruled Sullivan v Gordon. CSR v Eddy held that, while loss of the capacity to provide gratuitous personal or domestic services was compensable, the compensation should be given as part of the general damages, not as a separate item of damage the quantum of which is assessed, as it had been in Sullivan v Gordon, by reference to the commercial cost of providing the services that the plaintiff cannot provide. [29] The High Court decided CSR v Eddy in October 2005. In May 2006, the Civil Liability Amendment Bill was introduced in the New South Wales Parliament, and in June 2006, the Civil Liability Amendment Act 2006 was assented to and commenced. It is quite clear that one of the purposes of the 2006 legislation was to alter the law stated in CSR v Eddy, and to reinstate a head of damages akin to, but not in all respects identical to, that which had been recognised in Sullivan v Gordon". 35 I shall now set out the relevant portions of s 15B of the Civil Liability Act 2002. The section is headed "Damages for loss of capacity to provide domestic services". 36 The key provision is sub-section 2. It is in the following terms: - " 2. When damages may be awarded Damages may be awarded to a claimant for any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependents, but only if the Court is satisfied that: (a) In the case of any dependents of the claimant of the kind referred to in paragraph (a) of the definition of "dependents" in subsection (1) - the claimant provided the services to those dependents before the time that the liability in respect of which the claim arose, and, (b) the claimant's dependents were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental capacity, and (c) there is a responsible expectation that, but for the injury to which the damages relate, the claimant would have provided services to the claimant's dependents: (i) for at least 6 hours per week, and (ii) for a period of at least 6 consecutive months, and (d) there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances." 37 Dependents, in relation to a claimant are defined in subsection 1. They are defined to mean: "(a) Such of the following persons as are wholly or partly dependent on the claimant at the time that the liability in respect of which the claim is made arises: (i) a husband or wife of the claimant, (ii) a de-facto partner of the claimant , being a person who has a de-facto relationship (within the meaning of the Property (Relationships) Act 1984 (with the claimant), (iii) a child, grandchild, sibling, uncle, aunt, niece, nephew, parent or grandparent of the claimant…, (iv) any other person who was a member of the claimant's household, and (b) Any unborn child of the claimant…at the time of the liability in respect of which the claim is made arises and who is born after that time". 38 The phrase "gratuitous domestic services" is defined to mean "services of a domestic nature for which the person providing the service has not been paid or is not liable to be paid". 39 The method of determination of the amount of damages for loss of this capacity is provided in s 15B sub-ss 4 and 5. There is no need for me to set out the detail of those provisions. They provide a cap on damages and a statutory reminder that, where damages are awarded under this head, the Court must not include in any damages awarded to the claimant for non-economic loss a component that compensates the claimant for the loss of the capacity to provide domestic services. 40 In addition, there is no need for me to detail the other provisions of s 15B as they are not determinative of or instructive in relation to the resolution of the present debate. 41 Mr Maconachie's submissions examined the expression "domestic services" in its ordinary meaning. The Macquarie Dictionary defines "domestic" as "of or pertaining to the home, the household, or household affairs". The Shorter Oxford English Dictionary adds: - "household, home, family". 42 Senior counsel submitted that in the legislation the phrase "domestic services" should be given a limited or restricted meaning. Counsel's argument took as its centre piece the relationship between ss 15 and 15B, of the Civil Liability Act 2002 especially the structural interconnection between the two sections. For this reason, it is necessary to refer to the definitions in s 15 of the Civil Liability Act 2002. Section 15 is concerned with damages for gratuitous attendant care services. These are known as Griffiths v Kerkemeyer damages (1977) 139 CLR 161. In that case, the High Court had held that in a claim for personal injury the plaintiff was entitled to recover an amount equivalent to the commercial cost of nursing and domestic services which had been gratuitously provided in the past, and would be provided in the future by the family or friends of the plaintiff. Subsequently, in Van Gervan v Fenton (1992) 175 CLR at 332-333, the High Court approved the earlier decision, stating that the true basis of the claim was the need of the plaintiff for the services: the plaintiff did not have to show that the need was or might be productive of financial loss. Section 15 recognised the existence of this somewhat controversial head of damages but imposed both significant thresholds and a cap on damages. For present purposes, it is necessary to note only the opening definitional paragraph: - " Damages for gratuitous attendant care services 15(1) In this section: "Attendant Care Services" means any of the following: (a) services of a domestic nature, (b) services relating to nursing, (c) services that aim to alleviate the consequences of an injury. "Gratuitous attendant care services" means attendant care services: (a) that have been or are to be provided by another person to a claimant, and (b) for which the claimant has not paid or is not liable to pay." 43 In relation to the history and structure of the legislation, senior counsel noted that s 15 was in the Civil Liability Act 2002 at its inception. Section 15B was inserted in the Act, as I have said earlier, by the Civil Liability Amendment Act (No 55 of 2006). Section 15A in its then form, was removed from the Act and replaced by a new section 15A which contained the following subsection: "(4) In this section, attendant care services and gratuitous attendant care services have the same meanings as they have in s 15". 44 The appellant argued that Parliament plainly intended "attendant care services" to refer to something different from "gratuitous domestic services" where that expression appeared in s 15B. Consequently, the argument proceeds, there is a clear distinction between matters of a domestic nature on the one hand, and nursing or palliative care on the other, at least in relation to the proper construction of s 15. 45 This proposition lead to the central plank in the appellant's argument: it submitted that "gratuitous domestic services" (where appearing in s 15B) were intended to mean something different from, and more limited than, "attendant care services". The ultimate submission appears in the following paragraphs of the written submissions: "40. It is clear that s 15B was introduced (perhaps by way of political comprise) to cover a part, and part only, of that which had been found by the Court of Appeal in Sullivan v Gordon to be available by way of damages at common law, and to limit such damages. 41. That conclusion is supported by the appearance in s 15 of notions of domestic care, nursing care and palliative care but the presence in s 15B of a notion which is restricted to domestic care - that is, "gratuitous domestic services" is defined in s 15B(1) to mean "services of a domestic nature for which the person providing the services has not been paid and is not liable to be paid". The words "services of a domestic nature" describes one of the three notions addressed, in precisely those terms, in the definition of attendant care services in s 15. 42. It must be concluded, on principles of statutory construction, and commonsense, that Parliament was intending to address in s 15B one only of three types of care to which s 15 extended - domestic, nursing and palliative care must mean something different from one another…". 46 Upon this analysis, counsel argued that in the present matter the loss for which the respondent sought and recovered damages was a loss of capacity to provide domestic services that, at least in part, properly answered the ordinary meaning of nursing or palliative (alleviating) care. Consequently, as a matter of statutory construction, s 15B was incapable of supporting the award the trial Judge made, at least in terms of those care provisions being given to Nabila which fell within the notion of nursing or palliative care. 47 Ms Norton SC, for the respondent, argued that the difference in terminology between ss15 and 15B simply arises by reason of the purpose of the various sections. Sections 15 and 15A deal with services provided to a claimant. Section 15B deals with services which the claimant can no longer provide to others. It is this difference, senior counsel argued, that results in different words being used in different sections in the legislation. This distinction was at the heart of the High Court's finding in CSR Limited v Eddy that the two heads of damages were not analogous. 48 Ms Norton submitted that this Court was entitled to have regard to the Second Reading Speech to identify the mischief sought to be overcome by the 2006 Enactment of s 15B. Ms Norton suggested the Second Reading Speech showed that Parliament had plainly determined to overturn the effect of the High Court decision in CSR Limited v Eddy but, in so doing, had left it to trial courts to determine whether any particular domestic services might be reasonable in a given claim. 49 The respondent accepted that s 15B seeks to place a limit on Sullivan v Gordon damages available but argued that the limit was achieved by way of the imposition of a threshold and a cap on the hourly rate. At paragraphs 20 and 21 of the written submissions the respondent said: - "20. It is submitted that the expression "services of a domestic nature" as it appears in s 15B includes all facets of care of others including children, the elderly or the disabled which would, but for the injury, have been carried out by an injured party because of his or her domestic situation. Sub-section 2 places limits on when damages may be awarded but does not seek to limit the services for which those damages can be awarded. In particular, sub-section 2(b) provides that compensation should not be awarded if the dependents are capable of performing the services for themselves. Thus there is a need to show that, by reason of their age or physical or mental incapacity, they are incapable of performing such services. People with physical and mental disabilities are likely to need more assistance than mere housework. 21. If the appellant's submissions were correct, the only services to Nabila which the respondent could claim would be limited to house cleaning, meal preparation, laundry and the like. Section 15B is clearly directed to damages in respect of the care of persons who cannot care for themselves. Such persons typically need extensive personal care and assistance". 50 Ms Norton's final submission suggested that the construction of s 15B suggested by the appellant was completely at odds with the statutory intention to benefit those whose damages arose from a loss of capacity to provide for family members with the greatest needs, such as the respondent who had the care of a disabled daughter.

Resolution of the issues 51 Apart from the need to give the section a purposive construction, the appellant did not specifically point to the application of any of the general rules of statutory construction in relation to the meaning to be given to the phrase "domestic services" in s 15B of the legislation. It is true, however, that the same phrase - "services of a domestic nature" -appears in both ss 15 and 15B. Although, the expression "domestic services" is "defined" in s 15B, the definition does not give any indication that the phrase is to be given other than its ordinary meaning. Rather, the definition focuses on the meaning to be given to the word "gratuitous". Nor is the phrase "services of a domestic nature" defined in s 15(1). While it is true that "attendant care services" means any of three services then mentioned, it is clear as a matter of ordinary grammatical construction that none of those services is mutually exclusive of the other. The point of the definition in s 15(1) is that it gives content to the notion of "attendant care services" in a context where any one of those services (or any combination of them) will answer the description in the defined phrase. 52 The appellant's grammatical argument suggests that in s 15B "services of a domestic nature for which the person providing services has not been paid and is not liable to be paid" should be construed as meaning "other than services relating to nursing, and other than services that aim to alleviate the consequences of any injury". 53 It will be seen immediately that, as a matter of grammatical construction, the two phrases in s 15(1) "services relating to nursing" and "services that aim to alleviate the consequences of an injury" simply do not transpose into the definition of "domestic services" in s 15B. Take s 15(1)(c) as an example. The phrase "services that aim to alleviate the consequences of an injury" would not fit into the context of s 15B at all. The latter section is concerned with the loss of capacity to provide domestic services for dependants of a claimant, and is not concerned at all with the alleviation of the consequences of an injury. 54 In my opinion, Mr Maconachie's textual and grammatical argument cannot succeed. For it to be correct, it would be necessary to alter significantly the language employed in s 15(1), and to read into s 15B components which are not present. 55 The position is made even clearer when regard is had to the very different subject matters of s 15 and 15B. The former section, dealing as it does, with a head of damages arising from the need for the care services voluntarily provided to an injured plaintiff is very different from a claim in damages for the cost of services which, because of his or her incapacity, an injured person cannot render to others. This difference was recognised in the decision of Gleeson CJ, Gummow and Heydon JJ in CSR Limited v Eddy. Theirs Honours said at (23): - "It follows that so far as the reasoning in Sullivan v Gordon rested on the view that a Sullivan v Gordon claim has the same basis as the Griffiths v Kerkemeyer claim, it is erroneous…it cannot be said that the Sullivan v Gordon problem falls within the rules stated in the Griffiths v Kerkemeyer line of cases, or with any proposition logically deducible from those rules". 56 The joint judgment later concluded that the anomalous position of Griffith v Kerkemeyer damages had no real analogy to the recovery of damages under the Sullivan v Gordon loss of capacity. They simply had different fields of operation (paras 32-35). 57 Damages for gratuitous attendant care services under s 15 of the legislation pre-suppose an injured plaintiff with a need for those care services. In that circumstance, it is understandable that the legislature has posed a range of care services (not mutually exclusive) which travel beyond the provision of services of a domestic nature. In serious injury cases, for example, (such as quadriplegia, brain damage and the like) friends and family may provide the plaintiff with a wide range of services in a hospital or a rehabilitation centre. In Marsland v Andjelic (1993) 31 NSWLR 162 Kirby P and Meagher JA (Mahoney JA dissenting) held that a mother who provided daily extensive care to her brain damaged son in a hospital was engaged in the provision of gratuitous attendant care services for the purposes of the legislation then under consideration. This was simply an example of the recognition in a particular case that attendant care services might properly include services that go beyond services of a domestic nature. 58 By contrast, the phrase "domestic services" in s 15B does not envisage as a matter of necessity that a claimant's dependents will be injured or require special care treatment because of physical or mental disability. Nevertheless, s 15B(2)(b) recognises that the damages may only be awarded where the claimant's dependents were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity. The key to s 15B is the relationship of dependency, coupled with the reasons why it is that dependant's were not and will not be capable of performing the services themselves. The meaning to be given to the phrase "domestic services" in any particular context will vary according to the nature of the dependency, the obligations the relationship will normally impose, and the history of the provision of past domestic services. At its most basic, in the case of children, domestic services must mean at least looking after and caring for those children where they themselves are incapable of performing the services themselves by reason of their age or physical or mental incapacity. This point of distinction was recognised by Campbell JA in Amaca Pty Limited v Novek at [97-101]. His Honour saw a clear distinction between looking after children, on the one hand, and performing domestic duties such as cleaning up and preparing meals for the children, on the other. 59 The concept (looking after and caring for children by the provision of domestic services), ought be given its ordinary meaning and not a restricted or narrow meaning. 60 Mr Maconachie sought to argue that s15(2)(b) supported the appellant's construction because it distinguished between services being provided to dependents, rather than being carried out for the dependents. This distinction is said to be inherent in the use of the words "were not capable of performing the services themselves". 61 In my opinion, this suggested distinction is one without real content. An example will show why this is so. A very young child may not be able to climb or walk up a set of stairs. A father who carries the child up the stairs may be said, according to counsel's argument, to be performing a service for the child. But it is equally true that the child is not capable of carrying itself up the stairs, whether by walking, climbing or by any other means. The language of section 15(2)B, on the other hand, clearly supports the proposition that, in a given situation, domestic services will equate to services that are unable to be performed by reason of age, physical or mental incapacity. This suggests they will, in a given factual setting, go beyond the provision of mere housework and the like. 62 In my opinion, for all these reasons, the phrase "domestic services" in s 15B should be given its ordinary meaning and not given a restricted meaning as suggested by counsel. There will be limits, of course, to the reach of the phrase. In CSR Limited v Eddy, in examining the nature of a Sullivan v Gordon claim, the joint decision of Gleeson CJ, Gummow and Heydon JJ referred to the difficulty of marking the outer limits of domestic services. The judgment queried, without deciding, (at paras 61 to 62) whether domestic services should be extended "to the wide range of educative services healthy parents supply their children of an academic, sporting or cultural kind". It is not necessary in this decision to test or explore those outer limits. The narrow question with which this Court is concerned is whether the trial Judge was entitled to find that the care provided for Nabila by the respondent and his wife (and to be provided in the future by the wife) fell within the meaning of the phrase "gratuitous domestic services". In my opinion, the appellant has not demonstrated that the trial Judge fell into error in this regard. 63 The trial Judge found that Nabila, because of her disabling condition, was wheelchair bound and required a considerable amount of physical assistance both day and night. She needed virtual 24-hour care. For example, she was unable to shower or use the lavatory without assistance. A young infant undoubtedly cannot perform the domestic service of showering herself or toileting. However, with maturity, young children are able to perform these services. Nabila is not because of her disabilities. It was a matter for the trial Judge to be satisfied, in those circumstances, whether the insertion and removal of the catheter and urine bag were domestic services provided to her by her parents and whether there would be a need for those services to be provided in the future for the relevant period of time. It was also necessary for the trial Judge to be satisfied that that need was reasonable in all the circumstances. It is clear from the trial Judge's reasoning that she was satisfied in relation to each of these matters. 64 The same observations may be made in relation to the method by which Nabila was assisted from the wheelchair into the car so as to enable her to be taken to school each day. There was a considerable amount of lifting which the respondent said he had to do between six and ten times a day. Nabila could not lift herself and there is no reason to doubt that those actions in lifting her up for whatever purpose plainly fell within the description of domestic services. Finally, there was the issue of massage and exercise. The trial Judge found that the respondent and his wife were taught some elementary physiotherapy so that they could work on their daughter at home to maintain her muscle tone. The plaintiff could not move her own limbs so as to maintain her own muscle tone. It had to be done for her. This was achieved by way of a stretch of each limb and subsequent massage. Similarly, when Nabila was put into a special brace for sleeping or placed in splints for her daily activities, her legs were first massaged. Once again, it was because Nabila could not perform these services for herself. In my opinion, it could not be said that these activities fell outside of the boundaries of the provision of domestic services to a dependent whose physical disabilities made it impossible for her to do these things for herself. Section 15B speaks in its own terms and it should be interpreted free from any supposed fetters arising from considerations which have led to the enlargement of other concepts, and for the purposes of defining, or for that matter de-limiting, other heads of damage dealt with in the legislation.

A glaringly improbable finding? 65 The appellant has argued that the finding of an additional four hours care per day, required by the respondent's wife as a result of the accident was glaringly improbable. The argument requires this Court to engage in its familiar task of reviewing the facts proved at the trial and the conclusions and findings derived by the trial Judge from those facts. Mr Maconachie, however, acknowledged that in the particular circumstances of this matter, this was a high hurdle. A reasonably modern statement of the principle appears in Brunskill v Sovereign Marine and General Insurance Co Limited (1985) 59 ALJR 842 at 844; 62 ALR 53 at 73. It was repeated by Kirby A-CJ in Galea v Galea (1990) 19 NSWLR 263 at 264. His Honour, dealing with the credibility of witnesses in the Court below, said that the conclusion of a trial Judge may be disturbed if that conclusion was "glaringly improbable". Such a conclusion would rarely be drawn by the appellate court unless it follows clearly from the inferences to be derived from incontrovertible facts. (See, most recently, the statement of the relevant principles in Yarrabee Coal Company Pty Limited & Anor v Lujans [2009] NSWCA 85 per Beazley JA) 66 The appellant's arguments in the present matter focus on two main matters. First, it is said that the respondent's wife's evidence was vague and imprecise in relation to the estimation of the additional four hours. Secondly, and perhaps more importantly, the appellant argued that the respondent himself gave no evidence as to his involvement in the massage and associated activity before the accident. Further, the respondent did not mention his inability to provide care for his daughter when he was giving an account of his disabilities to the various qualified and treating medical practitioners. 67 I shall set out the relevant portion of the respondent's evidence (Black Appeal Book 15 to 17): - "Q. I want to ask you something about your domestic circumstances. You're married, aren't you? A. Married. Q. Which year did you get married? A. 1980. Q. How many children do you have? A. I have two children. Q. What are they're ages? A. Yeah one daughter is 25 now. She's - she's moved out, married two years ago and she's working in the government department ASIC. Q. It's a long answer about what her is, Mr Laskar. A. She's 25. Q. And the second one, what age is she? A. She's 14 now. Q. So far as the younger one is concerned, does she have some health problems? A. Disability. Q. Can you tell me please what's wrong with her? A. When she born, she born with spina bifida and at that time from since then she cannot ..(not transcribable).. at all. She cannot do anything by herself. So always 24 hours she need assistance. Q. Is she generally confined to a wheelchair? A. Yes, yes. Q. Can she wash herself, take a shower by herself? A. No. Q. Can she use the toilet by herself? A. No. Q. And are there any particular steps that need to be taken so far as the passing urine? A. Always we use catheters. This morning also at 10 o'clock we use catheters - catheters for it. Q. So how often a day does she need to be catheterised to pass urine? A. Four times - four times in a day and one time in the night. Q. It's correct, isn't it, that you and your wife have cared for her since she was born? A. Yes, please. Q. Does your wife work? A. She works a little bit child care at home, private child care, but not working like a shop or like office or like a company nothing. Q. In 2005, was you wife working? A. Yes. Q. Doing what? A. Like no like at home. Like child care. Q. Like child care at home? A. Child care. Q. Do you have a specially equipped vehicle to take your daughter around with her wheelchair? A. I try to - the school - the school helps us - on the mobility they have a special type to be able to take her to the school there. But other tings - other times we have to do ourself. Q. Well that's what I'm asking you about. If you want to go somewhere and take her with you-- A. All the time we have to take-- Q. Mr Laskar, please A. I'm sorry. Q. If you want to go somewhere and take her with you, how has she got into the car from her wheelchair? A. We move from sliding both - to our car and also we take her with us and she sits at the front or maybe at the back sometimes. Q. What sort of vehicle do you have? A. Sedan. Sedan. ..(Not transcribable).. sedan. Q. The wheelchair fits in the boot does it? A. We fold it, yes. We fold it and put it inside and ..(not transcribable).. right back in put inside and ..(not transcribable)..right back in put inside. Q. Mr Laskar does the wheelchair fit in the boot or not? Or does it go into the body of the car? A. When you - when you fold it, it fitted. Q. With that child before your accident, how many times a day would you, you personally have to lift her? A. Two three sometimes four hours. Four times, five time, two, three, four hours in a day. Q. Mr Laskar what I'm asking you about is not how many hours a day you'd be doing something. How many times you'd have to lift her, whether you're lifting her onto the toilet or onto a shower chair or helping her into the car, how many times on an average day would you personally need to lift her? A. Six to ten times in a day. Q. And before the accident happened, what sort of things would you do for her in caring for her on a weekday when you weren't working, what would you do? A. Just to lift her and I put her into the car and take to the different places. When - when we necessary to the medical centre when she was a bit ill, shopping centre or hospital sometimes. Or also at home from back to wheelchair - wheelchair from that to that shower chair, toilet every night. Q. You took part in all those things, did you? A. All of those things, yes." 68 It will be seen that, in his evidence-in-chief, the respondent spoke briefly of the fact that both he and his wife had cared for Nabila since she was born. There was no cross-examination to suggest otherwise. Secondly, the respondent described the way in which transport was arranged for Nabila including the use of a wheelchair and a sliding board to get her into a motor vehicle. In these descriptions, the respondent used the word "we" to describe the persons engaged in the assistance being provided to Nabila. This was clearly a reference to both his wife and himself. He also indicated that he would personally be obliged to lift his daughter a number of times during each day. He said it was six to ten times in a day. He and his wife would take her to different places, to the medical centre, to a shopping centre or hospital sometimes. They were jointly involved in moving her from her wheelchair to the shower chair or to the toilet every night. Critically, it will be seen that the respondent said that he took part in "all those things". (Transcript 17N). 69 There was brief cross-examination of the respondent by Mr Stewart at transcript 47 and 54 to 56). This established that the respondent left for work between 7.30 and 8am and that his daughter was collected for school in the morning at about 8am to 8.15. Nabila was collected by the respondent's wife at 3.15 to 3.30pm every day. Cross-examination also confirmed that, following the accident, all of the domestic tasks such as washing Nabila's hair and helping her with the toilet were done by the respondent's wife. There was reference to an occasional visit from an occupational therapist and confirmation that there were no lifting devices in the home to assist in lifting Nabila. There was no re-examination. 70 The respondent's wife gave her evidence on 3 September 2008, the day following the conclusion of the evidence given by her husband. This was given against the background of medical evidence that was not in issue. As the trial Judge noted in her findings, the respondent was unable to squat or kneel. He was no longer able to assist in Nabila's care as he had done in the past. 71 Ms Nahar gave evidence both as to the care her husband and she had provided to Nabila before the accident and the changed situation since the accident. She described the task of massaging Nabila's limbs and stretching her feet backwards and forwards and moving her limbs around. Nabila was not strong enough to do any exercise with her arms. It was necessary therefore for stretching and massaging to be done in that vicinity of her body as well. Ms Nahar described the fact that, prior to the accident, these exercises were generally done by her husband "in the afternoon". She said that it took nearly two hours and it was done on the bed. Since the accident, it had become necessary for Ms Nahar to do all these exercises with Nabila and she confirmed that they had to be done "every day". 72 Ms Nahar then described the night care given to Nabila. This involved putting on the brace which was attached to stop her knee from bending. The brace was applied to each leg and it was necessary to straighten the leg out and massage it first. Her husband used to do this task before Nabila went to sleep of an evening but since the accident Ms Nahar has had to do it. She said that this took nearly an hour. 73 Finally, she described the time it took each day to move Nabila around both to and from her wheelchair to the bathroom and to the transport vehicle. She also described the task necessary to shower Nabila. The evidence of the estimate of time for all these tasks was given at Black Appeal 98L to T as follows: - " LIDDEN Q. I want you to think about this for me, Ms Nahar. If you add up the time spent on Nabila's physiotherapy that you do now and you didn't do before the accident. A. Yeah. Q. And you add to that the time spent getting her ready for bed, putting on the braces. You've told me the first one is about 2 hours, the second one is about an hour. A. Yes. Q. And you add up the extra lifting that you do. A. Yes. Q. Helping with the showering, those sort of things. How much time each day extra do you now looking after Nabila that your husband used to do before the accident? A. Four hours. LIDDEN : That's the evidence-in-chief, your Honour". 74 There was quite extensive cross-examination by Mr Stewart of Ms Nahar. Part of this addressed the issue as to whether her husband could or could not continue with the exercises involving Nabila's limbs. Ms Nahar, said however, that the exercises generally had to be done while kneeling on the bed. She suggested that her husband could not kneel, could not bend his knees and that he had back-pain, making exercising from a standing position or from a chair difficult. She herself had experienced pain in her hands and used elbow guards to protect her arms while doing the additional work for her daughter following the injury to her husband. 75 Mr Stewart then examined "a typical day" and secured answers which suggested that Nabila came home from her school at 3.30pm and ultimately retired for the night between 9.30 and 10 o'clock. The exercises and massaging preparatory for the evening brace normally began about 7pm and it appears this was generally done before the evening meal, with dinner finishing about 8.30 or 9 o'clock. 76 The trial proceedings were then interrupted and resumed in late December 2008. In the intervening period the respondent had his arthroscope and set about rehabilitation and recovery from that operation. At the resumed hearing, the appellant called its evidence on liability. The respondent was then recalled to give brief evidence as to the outcome of the arthroscope. He told the Court that it had not brought about any improvement, and this was despite physiotherapy on a regular basis since the operation. The respondent was not cross-examined on this occasion by Mr Stewart for the appellant. 77 I have earlier set out the brief arguments of counsel at the trial relating to the claim for damages for loss of capacity to provide domestic services. I have also set out the trial Judge's comments in her judgment. In my view, the evidence permitted the trial Judge to reach the conclusion she did, notwithstanding that the time estimates were somewhat vague and imprecise. It could not be said that the findings made were "glaringly improbable". The evidence established that the respondent usually arrived home from work at about 5.30pm. Nabila arrived home from school at 3.30pm and went to bed, as I have said, at about 9.30 or 10 o'clock. It appears that the respondent had four to four and a half hours available to him each evening to have dinner, to care for his daughter and do the exercises and massage, fit the braces and put her to bed. These, of course, were not the only tasks necessary during the evening. Ms Nahar in her evidence reminded the Court that there were the tasks of taking Nabila to the toilet, putting the shower chair in the shower and other related matters as well. 78 The estimate given by Ms Nahar was a general one and clearly took into account the situation at weekends or when her husband was not working. 79 The trial Judge was well aware that the evidence as to the additional hours of care came from the respondent's wife. The trial Judge analysed this situation accurately and did not feel compelled to conclude that there was any reason to doubt Ms Nahar's evidence as to the amount of extra time taken. The trial Judge was undoubtedly correct in stating that there was no present suggestion that Nabila's condition would improve to the extent that she could care for herself. It was not unreasonable in the circumstances that the evidence about the additional care times came from Ms Nahar as she was the person who was now providing that care in place of her husband. The respondent was recalled to give evidence about his arthroscope and whether it had been of any help. He was not cross-examined by experienced counsel for the appellant to suggest that there was any error in the estimates that had been given by Ms Nahar in her earlier evidence. 80 The approach taken by the trial Judge in assessing the need for care was one that was clearly open to her on the evidence. There was no evidence called by the appellant to suggest that the estimates were improbable and, indeed, no submission to that effect was made at the time. The principal submission was that the evidence had come from Ms Nahar rather than her husband. That was a matter examined by the Judge and taken into account in her final overall assessment. Finally, the fact that the respondent had not mentioned to the doctors his inability to provide domestic services to his daughter was, correctly, not regarded by the trial Judge as a matter of any moment in the circumstances 81 In my opinion this ground has not been made out. 82 Orders:

I would dismiss the appeal. I would order the appellant to pay the respondent's costs of the appeal.

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