Macquarie Area Health Service v Egan

Court of Appeal (NSW)|2001-09-10|Before: Sheller JA, Powell JA, Heydon JA

CITATION : Macquarie Area Health Service v Egan [2002] NSWCA 26 FILE NUMBER(S) : CA 40845/00 HEARING DATE(S) : 10 September 2001 JUDGMENT DATE : 25 February 2002

PARTIES : Macquarie Area Health Service (Appellant) Nicole Egan (Respondent) JUDGMENT OF : Sheller JA at 1; Powell JA at 4; Heydon JA at 18

LOWER COURT JURISDICTION : District Court LOWER COURT 83/99 FILE NUMBER(S) : LOWER COURT Williams DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Tort - Negligence - District Court appeal - Liability - Damages - Tort - Quantum

The plaintiff and first defendant were nurses employed at a hospital run by the second defendant. The plaintiff alleged that while assisting a patient the first defendant struck her on the coccyx with a percussion hammer. While the plaintiff did not claim her coccyx had been fractured, she brought evidence of postural problems and persistent ongoing pain to her coccyx, lower back and knee. She sued both defendants for negligence in tort, claiming that the first defendant was primarily liable and that the second defendant was vicariously liable as an employer. The trial judge found against both defendants. The second defendant appealed in relation to liability and quantum of damages.

Held: Heydon JA (Sheller JA agreeing, Powell JA dissenting), allowing the appeal:

(1) The trial judge's finding that the incident happened is inherently convincing and internally consistent; there was no basis for overturning this finding: [35].

(2) As to liability: a. the injury sustained was a foreseeable risk. The stressful nature of hospital work and the high spirits of the staff made pranks a real possibility and there was evidence that practical jokes were common in the hospital. Patients as well as employees stood the chance of injury as a result of such a prank and no warning had been issued to employees against pranks of the sort in issue: [41]-[46]. Minister Administering the Environmental Planning and Assessment Act, 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268; Sullivan v Moody (2001) 183 ALR 404 applied; Palsgraf v Long Island Ry Co 162 NE 99 (1928); Bourhill v Young [1943] AC 92; Ashrafi Persian Trading Co Pty Ltd v Ashrafinia [2001] NSWCA 243 considered. b. the trial judge correctly found that the second defendant failed to apply the appropriate standard of care in directing qualified medical staff not to engage in the relevant activity. There was more than a slight chance of the relevant risk arising and the magnitude of risk was possibly high. No action to alleviate the risk had been taken and there were no conflicting responsibilities to justify this omission: [48]-[52]. Wyong Shire Council v Shirt (1980) 146 CLR 40 applied. c. the argument that compliance with the duty would not have prevented the plaintiff's injury was rejected. A general or vague or bland or manifestly perfunctory or half-hearted instruction might be disobeyed, but what was required was a warning or instruction of sufficient gravity to make compliance likely: [54]-[56]. Betts v Whittingslowe (1945) 71 CLR 637 applied. d. the second defendant was directly liable making it unnecessary to consider the trial judge's findings as to vicarious liability: [60].

(3) As to quantum, a. the trial judge's selection of the plaintiff's non-economic loss at 38% of a most extreme case was within an appropriate range: [63]-[64]. b. the trial judge wrongly took the plaintiff's fortnightly salary as her weekly salary in calculating future economic loss. That figure and consequential amendments should be made, but the trial judge's calculation of a cushion sum was valid: [68]-[70]. O R D E R S

The appeal is allowed.

The judgment of the trial judge in the sum of $320,370.35 is set aside.

In lieu thereof, there will be judgment in the sum of $287,252.27 with effect from 6 October 2000.

The defendant is ordered to pay the plaintiff's costs of the appeal.

It is noted that the costs order made by the trial judge stands.

Liberty to apply on seven days' notice is granted.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40845/00 DC 83/99 (Orange) SHELLER JA POWELL JA HEYDON JA 25 February 2002 MACQUARIE AREA HEALTH SERVICE v EGAN

Judgment 1 SHELLER JA: I have had the benefit of reading in draft the judgments prepared by Powell JA and Heydon JA. 2 Reasonableness is the measure of the nature and extent, in the particular case, of an employer's duty to protect the employee. In Liftronic Pty Limited v Unver (2001) 75 ALJR 867, McHugh J said at 874 (para 38) that the case of Bankstown Foundary Pty Ltd v Braistina (1986) 160 CLR 301 "emphasises that the employer's duty is to take reasonable care for the safety of its employees and that what is reasonable is a question of fact to be judged according to the standards of the time." There could be no doubt that horseplay, a word connoting rough and boisterous activity, between two or more participants, is likely to carry with it risk to any of those participants. If the employer knows, as this employer on the findings at first instance either did or should have, that such activities occur in the workplace, particularly if they take the form of physical assaults upon employees, it is the duty of the employer to protect the employees from the risks of such activities, as his Honour Judge Williams acknowledged, by appropriate counselling or instruction. The workplace was a rehabilitation unit catering for elderly people recovering from problems with hips, knees and strokes. I agree with Heydon JA that the duty alleged by the plaintiff existed and the defendant was in breach of it. 3 Like Heydon JA, I am satisfied that in the work environment of this hospital proper instruction and directions as to the dangers of engaging in horseplay on the premises would almost certainly have dissuaded a nurse employed there from hitting another nurse employed there on the coccyx with a percussion hammer while the victim was manoeuvring a patient in a wheelchair. For the reasons given by Heydon JA, I agree with the orders he has proposed. 4 POWELL JA: I have read in draft the Judgment which has been prepared by Heydon JA with which Judgment I understand Sheller JA to agree. I regret, however, that I am unable to share their Honours' view that, to the extent to which the Appellant sought to have the Judgment of Williams DCJ set aside and Judgment entered in its favour, the appeal should be dismissed. On the contrary, I am of the opinion that, at trial, the Respondent failed to establish that the Appellant had not discharged the duty of care which it was claimed that the Appellant owed to her. In addition, I am of the opinion that the Respondent failed to establish that the Appellant was vicariously liable to the Respondent for the consequences of Nurse Greenwood's actions. 5 The Statement of Claim which was filed on behalf of the Respondent is a less than shining example of the pleader's art. After recounting what was claimed to have been the nature of the action taken by Nurse Greenwood, it continued (RAB 1-2): "5. The incident occurred as a result of negligence on the part of the Defendant. Particulars of Negligence of the Defendant: (a) Failing to instruct or properly instruct employees in relation to safe working practices. (b) Failing to instruct employees against the performance of 'pranks' in the workplace. (c) Failing to counsel against the commission of pranks by employees. Further, the Defendant was negligent by its employee enrolled nurse Helen Greenwood in that she: (d) intentionally struck the Plaintiff on her tailbone with a patella hammer when the Nurse well knew that that was a potentially dangerous activity." 6 Despite the less than satisfactory form of the Statement of Claim, it seems tolerably plain that the Respondent's case was advanced on two bases, they being: (a) that the Appellant had failed in its duty of care to her in that it had failed to establish and/or maintain a safe system of work; and

(b) that the Appellant was vicariously liable for the action taken by Nurse Greenwood, which action - so it appears to have been put at trial - although intentional fell within the scope of Nurse Greenwood's employment by the Appellant.

Each of these suggested bases of liability requires to be dealt with separately. 7 The relationship of an employer to his employee is one which the law has held to generate a duty of care, the scope of which duty is to take reasonable care to avoid exposing the employee to unnecessary risk of injury (Hamilton v. Nuroof (WA) Pty. Limited (1956) 96 CLR 18; Bankstown Foundry Pty. Limited v. Braistina (1986) 160 CLR 301). The employer's general responsibility for the safety of his employees has been held to impose on the employer the following (inter alia) obligations: (a) an obligation to observe reasonable care in the selection of competent fellow employees so that the work can be carried out in reasonable safety, coupled with an obligation, if the employer becomes aware that an employee is likely to prove a source of danger to his fellow employees to take remedial action; and

(b) an obligation to establish and to enforce a system of work which will protect his employees against unnecessary risks. 8 An example of the failure of an employer to fulfil the first type of obligation is to be found in the Judgment of Streatfeild J in Hudson v. Ridge Manufacturing Co. Limited [1957] 2 QB 348 in which case, for a period of almost four years, one of the defendants' employees had made a nuisance of himself to his fellow employees, including the plaintiff, a cripple, by persistently engaging in skylarking such as tripping them up. On many occasions he had been reprimanded by the foreman and warned that he would hurt someone, but without effect. No further steps were taken to check this conduct by dismissal or otherwise. Eventually that employee, when indulging in further horseplay, tripped the plaintiff and injured him. In the course of his Judgment, Streatfeild J said supra at 350: "As Mr. Leigh put it in his opening, he does not contend that the employers are vicariously liable for any negligent act of a fellow servant but that they are primarily liable because they were guilty of a breach of their common law duty to take care for the safety of their employees. This is an unusual case, because the particular form of lack of care by the employers alleged is that they failed to maintain discipline and take proper steps to put an end to skylarking which might lead to injury at some time in the future. As it seems to me, the matter is covered not by authority so much as principle. It is the duty of employers, for the safety of their employees to have reasonably safe plant and machinery. It is their duty to have premises which are similarly reasonably safe. It is their duty to have a reasonably safe system of work. It is their duty to employ reasonably competent fellow workman. All of those duties exist at common law for the safety of the workman, and if, for instance, it is found that a piece of plant or part of the premises is not reasonably safe, it is the duty of the employers to cure it, to make it safe and to remove that source of danger. In the same way, if the system of working is found, in practice, to be beset with dangers, it is the duty of the employers to evolve a reasonably safe system of working so as to obviate those dangers, and upon principle it seems to me that if, in fact, a fellow workmen is not merely incompetent but, by his habitual, conduct, is likely to prove a source of danger to his fellow employee, a duty lies fairly and squarely on the employers to remove that source of danger. … Here is a case where there existed, as it were in the system of work, a source of danger, through the conduct of one of the defendants' employees, of which they knew, repeated conduct which went on over a long period of time, and which they did nothing whatever to remove except to reprimand and go on reprimanding to no effect. In my judgment, therefore, the injury was sustained as a result of the defendants' failure to take proper steps to put an end to that conduct, to see that it would not happen again and, if it did happen again, to remove the source of it. It was for that reason that this injury resulted. Under those circumstances, although it is an unusual type of case, I have come to the conclusion that Mr. Leigh is right in his contention that the defendants are liable for the plaintiff's injuries." 9 The decision in Hudson v. Ridge Manufacturing Company Limited is to be contrasted with the decision of the Court of Appeal in Smith v. Crossley Brothers Limited (1951) 95 Sol. J. 655 to which Streatfeild J referred in the course of his Judgment. In that case, Pearce J, at first instance, had found the employers liable because injury had been caused to the plaintiff, a boy of sixteen years of age, through the conduct of two apprentices in the misuse of a compressed air pipe, which they put up the unfortunate plaintiff's rectum. Pearce J held that the defendants had not exercised adequate supervision over the apprentices, and that that lack of supervision was the cause of the plaintiff's injury and constituted negligence. On the defendant's appeal, the Court of Appeal (Singleton and Birkett LJJ and Roxburgh J) allowed the appeal. The report, which is in the form of a case note, records: "Singleton LJ said that the two apprentices in question had done something which they knew to be wrong. With regard to the alleged lack of supervision of the apprentices, the compressed air pipe had been in the same position for ten years and no accidents had happened before. The defendants had no reason whatever to anticipate that the two apprentices in question would use it in that way. The duty of an employer towards his employees was to take reasonable care for their safety; and the evidence did not show any negligence by the defendants. The injury to the plaintiff resulted from what was wilful misbehaviour by the other two boys and a wicked act which the defendant had no reason to foresee." A similar approach to that taken by the Court of Appeal in Smith v. Crossley Brothers Limited supra may be seen in the Judgments of Gorman J in Smith v. Ocean Steamship Company Limited [1954] 2 Lloyd's Rep 482 and of Dunphy J in Antoniak v. The Commonwealth (1962) 4 FLR 454 . 10 The question then is whether, in the light of such evidence - which in my view was extremely slight and unsatisfactory - as there was at trial, it could be said that the Appellant failed in the respect particularised in sub-paragraphs (a), (b) and (c) to discharge its duty of care to its employees, including the Respondent. 11 The Respondent's evidence in chief as to her experience, or knowledge, of practical jokes in the period - approximately 2½ years - from her commencing at the hospital until the incident complained of was as follows (Black AB 3-40: "Q. In the time that you worked at the hospital up until September 1995 did you ever see practical jokes or pranks being performed by members of staff on other members of staff? A. Yes. Q. Can you give us some examples? A. Usually when staff were leaving it was a common occurrence that the spa bath be filled up and that the person leaving be put into the spa bath. Another occasion … Q. Can I just interrupt you for a minute. How were they put into the spa bath? A. Well literally thrown into the spa bath. Q. And did you ever see that occur? A. Yes I did. Q. On how many occasions did you see that occur in the time you've been working at the hospital up until September 1995? A. Probably around twice, two times. Q. Did you see any other pranks there at the hospital? A. I didn't see it but I heard about somebody being … … Q. Did you hear any stories at the hospital about pranks being performed on other members of staff? A. Yes … … Q. Did you hear stories about other pranks involving other people? A. I heard about a … Q. I'm not asking you what you heard but did you hear something about other pranks? A. Yes." (The nature of the "other pranks" which the Respondent claimed to have heard was not further explored in the course of the Respondent's evidence so that it is quite impossible to know whether such alleged pranks would or might have involved some risk to those who were said to be subjected to them.) 12 In the course of her evidence in chief (Black AB 47-48) Miss Crawford, who in September 1995 was the nursing unit manager - the nature and extent of whose duties were not explored in the evidence - and not, as she was at the date of trial, the Director of Nursing, said that, although she had not witnessed any incident involving a member of staff being immersed in a spa bath, when she became aware of such incidents she gave instructions that they were to stop and that, so far as she was aware, they did. Although, in the course of her cross-examination (Black AB 50) it was suggested that other practical jokes were from time to time played on members of staff, what may have been the nature of those alleged practical jokes was not further explored in the course of evidence, so that it is not possible to know whether, if they in fact occurred, such practical jokes would or might have created a risk of injury to anyone. 13 In the circumstance, I am unable to share Heydon JA's view that there was a reasonably foreseeable risk of injury arising from horseplay in general in consequence of the Appellant's failure to give instructions or counselling against that practice, and that there was a reasonably foreseeable risk of injury to patients and to members of staff handling them if the horseplay were directed against those members at the time they were handling the patients. 14 That leaves the question of whether, in the circumstances, the Appellant ought to have been held vicariously liable for Miss Greenwood's actions. 15 Vicarious liability does not attach for every wrong done by an employee while on the job but attaches only to such wrongs as have been authorised or ratified by the employer or which have occurred within the course of the employee's employment, a description sufficient to encompass such unauthorised acts on the part of the employee as can be regarded as wrongful and unauthorised modes of performing an authorised task. 16 Despite the stress which was sought on behalf of the Respondent to be placed on the Judgment of Mahoney JA (as he then was) in Petrou v. Hatzigeorgiou (1991) Aust. Torts Reports 81-071 and, in particular, on the passage referred to by Williams DCJ in the course of his Judgment - which passage in the event was obiter - it is my view that Nurse Greenwood's actions ought not to have been regarded as merely a wrongful or unauthorised method of carrying out Nurse Greenwood's tasks as a nurse. 17 For those reasons, it is my view that the appeal should be upheld, the verdict and judgment below set aside and the Respondent ordered to pay the Appellant's costs of the trial and of the Appeal but to have a Certificate under the Suitors Fund Act 1951. 18 HEYDON JA: On 6 October 2000 Williams DCJ gave judgment for the plaintiff for $320,370.35 and ordered the defendant to pay the plaintiff's costs. This is an appeal by the defendant against those orders. The Notice of Appeal contains grounds directed to both liability and quantum. Background 19 Lourdes Hospital is located at Dubbo. On 17 September 1995 the Hospital had its annual fete. The plaintiff, then aged 25, was a nurse employed at the Hospital. The unit she worked in was a rehabilitation unit basically catering for elderly people recovering from problems with hips, knees and strokes. Helen Greenwood was another nurse employed at the Hospital. The plaintiff complained of an incident which allegedly happened while she was walking backwards and manoeuvring a patient in a wheelchair out of the toilet block of the ward in which she was working. The plaintiff said that Miss Greenwood went past her to a cleaning cupboard. On returning, Miss Greenwood intentionally struck the plaintiff on her coccyx with a percussion hammer. The plaintiff felt immediate pain, and continued to feel pain. 20 According to an investigator's report (Exhibit B), the plaintiff told the investigator that she reported the occurrence of the alleged incident to Miss Val Crawford, the nursing unit manager, on or about the day it allegedly happened. The report said that Miss Crawford confirmed this. The plaintiff gave evidence to the same effect as that recorded in the investigator's report, though in the witness box Miss Crawford could not remember the plaintiff having reported the matter to her and could not remember having spoken to an investigator. 21 An accident report form prepared for the defendant's workers' compensation insurer on 2 May 1996 (Exhibit C) stated that the plaintiff gave notice of the incident to the defendant through Miss Crawford in December 1995. 22 From December 1995 the plaintiff visited doctors for treatment of the pain from which she was suffering. 23 Miss Greenwood's evidence was that she first became aware of the allegation in September or October 1996 when the plaintiff rang her, said she was still suffering consequences from the blow, and asked her if she remembered the incident. To this Miss Greenwood replied that she did not. 24 In April 1997 Miss Greenwood made a statutory declaration again professing inability to remember hitting the plaintiff with a hammer. 25 The plaintiff's Statement of Claim, dated 26 August 1999, advanced in paragraph 4 allegations about the incident conforming to the plaintiff's account summarised above. 26 The defendant's Defence, dated 11 April 2000, did not admit paragraph 4 of the Statement of Claim, but denied negligence, injury, and damage. It also alleged that the plaintiff's injuries were caused or contributed to by her own negligence - a proposition which is only consistent with the injuries having been suffered, and a proposition strongly suggestive of an acceptance of the plaintiff's story. 27 At the start of the trial the defendant told the trial judge that contributory negligence was no longer in issue. 28 After the trial had proceeded for some time on the first day, and after a question in cross-examination to the plaintiff positively suggesting that Miss Greenwood had not struck the plaintiff was objected to because it did not conform with the defendant's non-denial of the alleged incident, the defendant was given leave to amend its Defence so as to deny the occurrence of the incident. 29 In the witness box Miss Greenwood ceased contending that she could not remember the incident alleged, but rather positively denied that it had happened. 30 The trial judge made four categories of findings which are under challenge in this appeal. (a) The trial judge found that the incident had happened as alleged by the plaintiff, and apparently found that it had happened without malice on Miss Greenwood's part. (b) The trial judge found that the defendant was negligent in failing to protect the plaintiff from "the unwanted effects of horseplay or practical jokes". (c) The trial judge also found that the defendant was vicariously liable for Miss Greenwood's conduct, and apparently implicitly found that that conduct was incidental to Miss Greenwood's duties and was in the scope of her employment. (d) The trial judge found that the plaintiff was entitled to recover sums reflecting various heads of damage which, after making allowance for various sums to be credited to the defendant, totalled the judgment sum.

Did the incident happen? 31 The Notice of Appeal did not in terms challenge the trial judge's finding that the incident happened, but the defendant's written and oral submissions did. 32 The trial judge's reasoning was as follows: "On the balance of probabilities I am satisfied the incident as described by the plaintiff did occur. Her evidence is supported in material aspects, particularly in regard to the complaint, by exhibit C and B. It is also supported by the fact of her visits to Dr Riley, a general practitioner, in December 1995 and subsequently to Dr Bowden, another GP who treated her thereafter. Her history to doctors over the years has been basically consistent throughout and accords with her evidence before me.

Whilst it was denied that nurses would have any cause to use a percussion hammer to test or treat patients, it was conceded that if requested to by a doctor the hammer would be obtained and they would comply with that request. It was also conceded that everyone knew where the hammer was located. I also have some concerns of Miss Greenwood's improving memory between 1996 and now. The fact is that people's memory tends to degrade rather than improve over time and whilst I can well understand her not being able to remember such an incident 12 months later I find it difficult to accept that now, almost 5 years later she is positive that the incident did not happen at all.

Miss Crawford's evidence does not really take the matter any further for the reasons I have already indicated. [That was a reference to her lack of recollection.]

The plaintiff was criticised because she maintained or mentioned for the first time in evidence a fact, namely that she had spoken to Miss Greenwood about the matter whilst they were writing up reports at the end of the shift. She is also criticised as to not saying anything to Miss Greenwood immediately the accident occurred. It also appears that the area where the percussion hammer was kept was some distance away from the area where the incident occurred. In regard to the latter, I do not see that as a matter of any consequence going to suggest that the incident could not possibly have happened. There is no reason why a nurse would not combine a number of tasks at the one time so that the location of the hammer, to my mind, is immaterial.

I found the plaintiff to be an honest witness, endeavouring to give the best recollection of events occurring now some four and a half years ago. The fact that she remembers an additional matter at this point of time I do not see as reflecting on her credit, indeed, she has given other evidence in regard to a subsequent accident which occurred in September 1997. That could be regarded as contrary to her interests in that she says that her back pain was ongoing and worse from that point of time. The additionally remembered fact that she gave evidence of really takes the matter little further in any event. I do not see it as an attempt on her part to firm up the facts of the incident.

In regard to the incident itself, given that it was fete day, given that she was attending a patient in a wheelchair and given that she, at the time, did not expect any adverse consequences, I can understand her not saying anything to Miss Greenwood immediately, particularly if an altercation at that point of time was likely to have upset the elderly patient she was dealing with. In any event, the plaintiff says that she gave Miss Greenwood a filthy look and Miss Greenwood just laughed.

The plaintiff was criticised as to her memory of when she saw the hammer. In examination in chief she said she saw the hammer in Miss Greenwood's hands after the event but in cross-examination she said she saw it before. Again I do not see this as a critical credit issue that would entitle me to totally disbelieve the plaintiff for some reason.

The plaintiff at the time of the event was apparently backing a patient out of the toilet area when Miss Greenwood went past her from behind to a cleaners cupboard, obtained something and came back past the plaintiff again. The plaintiff first saw Miss Greenwood over the left shoulder coming from behind her and in cross-examination said at that time Miss Greenwood had a percussion hammer in her right hand. After agreeing that her evidence was different to what she had said in examination in chief she went on to say that she was clear, at least, that she saw the hammer when Miss Greenwood was coming back from the cleaners cupboard. Given the relative positions of the parties at this time I do not see that conflict in the evidence as being critical.

The plaintiff has said that although the blow was painful she thought it was a transitory situation and not likely to be of long duration. Further, she knew that there was no malice behind the blow and I can well understand that at that point of time she would have felt that nothing would have come of the incident and it was thus, eminently forgettable. I also have difficulty in understanding why the plaintiff would make up such a specific incident which was easily capable of being checked.

I am satisfied on the medical evidence that although the blow may not have fractured the coccyx it did cause problems consequent upon that blow. If the plaintiff was making something up she could easily have said that she slipped on a wet floor and sat on her bottom. She undoubtedly had an injury.

The defendant has been unable to suggest an alternative as to how that injury occurred. As stated I am satisfied on the balance of probabilities that the plaintiff sustained injury in the [manner] alleged."

33 In the defendant's first set of written submissions to this Court, the evidence of the plaintiff, Miss Greenwood and Miss Crawford was summarised. The following two submissions were then put: "The appellant submits that it could not have foreseen the conduct that occurred would have involved a risk of injury to the plaintiff or to a class of persons including the plaintiff.

The facts of this matter involve two competent and fully trained nurses who would be expected to be familiar with the nature and extent of injuries traumatically induced."

34 In oral argument the defendant's submissions moved from challenging the plaintiff's honesty, to challenging the plaintiff's reliability, to suggesting that even if the plaintiff was struck she was not struck intentionally, and back again to earlier challenges. It was submitted that since the plaintiff could not see what actually happened, she was only giving evidence of conclusions, and that her failure to complain speedily deprived Miss Greenwood of the chance of offering an innocent explanation and rendered innocent her failure to remember and then her denial. The defendant submitted that the finding made by the trial judge was not available to him. 35 The difficulties, such as they were, in the plaintiff's evidence were dealt with in some detail and with some care by the trial judge. It is possible that some other trier of fact might have arrived at a different conclusion. But the trial judge's reasoning is inherently convincing and internally consistent. It is also based in large measure on a preference for the plaintiff's credibility over the credibility of Miss Greenwood. The history given by the plaintiff to doctors, investigators, lawyers and the court was, so far as the alleged conduct is concerned, consistent. The defendant did not point to any method by which this Court could legitimately overturn the trial judge's findings consistently with the line of authorities associated with Abalos v Australian Postal Commission (1990) 171 CLR 167. Indeed the defendant's criticisms, it must be said bluntly, were far-fetched and wholly lacking in force. This aspect of the appeal fails. Direct liability of the defendant for negligence 36 The trial judge set out his reasoning on the question of the defendant's direct liability for negligence and on the question of the defendant's vicarious liability for Miss Greenwood's striking of the plaintiff in an intertwined way as follows: "The defendant says that it was not foreseeable that this type of incident might occur and that even if it was foreseeable what possible response could the hospital make having regard to the principles laid down by Mason J in Wyong Shire Council v Shirt .

The defendant says that Miss Greenwood's actions on that day were not incidental to her carrying out her normal duties and were outside the scope for employment. Whilst there were incidents of specific pranks in relation to employees being dumped in the spa bath before they left their employment there had been no prior such incident. However, Miss Crawford conceded that she was aware that people do play jokes on each other from time to time, but apart from verbally warning some of the staff at some time, either before or after this incident, in regard to the spa horseplay there was no other direction, written or otherwise, in regard to the effects of inappropriate horseplay, pranks or practical jokes from the hospital administration.

I was referred to the case of [ Petrou v Hatzigeorgiou ] (1991) Australian Torts Reports [81-071] at p 68559. There are a number of passages in that report that I have found helpful. The first appears at page 68563. There his Honour Mahoney JA with whom Kirby P and Priestley JA agreed said:

'In such a context there are things which specifically an employee is directed to do as part of his employment. There are results which he is expected to achieve but which he is permitted to achieve by doing such things as he thinks appropriate, and there are things which they are not directed to be done or authorised to be done in these senses the employer knows an act occur in the workplace and tolerates them as part of the environment. Some forms of horseplay at least are, I think, of this latter character. If Mr [Dimitriadas] in the course of finding the compressed air hose and taking it to his workplace had squirted the plaintiff I am inclined to think that any injury resulting from it would be the vicarious responsibility of the employer.' His Honour further went on to the following page: 'There is no doubt a point beyond which what takes place in the workplace is not, in the general sense, to which I have referred, an incident of the work or part of the workplace environment for this purpose'. And further on his Honour said: 'The employer's duty is most frequently seen as involving establishment of the proper system of work and the maintenance of that system, but the duty is not limited to that. It extends at least in certain respects to, for example, the supervision and care of the course of the work to prevent injury to the employee in the employment context. I do not mean by this that it is the duty of an employer to prevent injury to an employee from, for example, every casual act of a negligent character by third parties in the context of the workplace. Whether there is an obligation of this kind and the content of it need not be determined in this case.' Now whilst the facts of Petrou are distinguishable both as to the nature and way in which the horseplay came about and the principal issue the court had to decide in that case which related to the liability of a partner in a business for the acts of the other partner who himself had participated in the horseplay and was responsible for the final tragic act, the passages referred to are helpful in resolving the issue in this case, particularly Mahoney JA's reference to Mr [Dimitriadas'] behaviour with the air hose, which seems to be on all fours with the behaviour of Miss Greenwood in this case. I am satisfied that this was a special day in the hospital. It was the annual fete. Spirits were no doubt higher than on a normal day. I see little to distinguish Miss Greenwood's behaviour in this case vis-à-vis the plaintiff, an employee of the defendant, and Mahoney JA's reference to Mr [Dimitriadas] at page 68563 of the Judgment. Clearly an employee has a duty of care to its employees to protect them as far as possible from the unwanted effects of horseplay or practical jokes. That duty of care could be discharged by appropriate and consistent instruction and educational staff. Unfortunately its human experience that not everyone has the capacity to see through the possible consequences of their acts or remember those consequences having only been told on perhaps one occasion about the effects of them. I am not satisfied that the defendant's awareness of pranks in this case was necessarily confined to incidents with regard to the spa. There is no evidence of any counselling or instruction of employees in regard to pranks, by the employer, apart from whatever Miss Crawford said to some employees at some time. In my view that was insufficient and there is no evidence in any event that it was given before this accident occurred.

I am satisfied on the balance of probabilities that the employer was negligent. I am also satisfied in accordance with [ Petrou's ] case that the employer was vicariously liable for Miss Greenwood's actions."

37 The defendant's first set of written submissions to this Court narrated the relevant factual findings of the trial judge. They also pointed out the following aspects of the evidence: "In evidence the plaintiff agreed in cross-examination it was not part of her duties to use a patella hammer and that only doctors checked reflexes (Black 20N). The plaintiff agreed it was not part of Ms Greenwood's duties to use a patella hammer (Black 20O).

The plaintiff agreed the patella hammer was quite some distance away from the toilet cubicle where this event occurred (Black 20R).

The plaintiff agreed that nothing like this had happened to her at work before this (Black 20I).

In evidence in chief, Ms Greenwood denied she was required to use a patella hammer in the course of her duties (Black 38O).

Ms Greenwood, in evidence in chief, said the patella hammer was kept some distance from the toilet cubicles (Black 38R). In cross-examination, Ms Greenwood agreed that pranks at work were not entirely foreign to the hospital (Black 42D).

Ms Greenwood agreed that she was aware of other pranks in the workplace apart from people being placed in the spa when they were leaving (Black 42N).

In cross-examination, Ms Greenwood agreed that there were occasions when she was required to carry around the percussion hammer (Black 43F).

Ms Crawford, in examination in chief, said she issued instructions that pranks were to stop because of the occupational health and safety issues involved (Black 47X-Z).

Ms Crawford knew only of pranks when people were leaving the hospital (Black 50G-I).

In cross-examination, Ms Crawford agreed she knew that from time to time people played jokes on one another (Black 50O).

In cross-examination, Ms Crawford agreed that because of rotating shifts being worked, when instructions were given not all people were there (Black 50T).

There is not evidence as to the time of any direction given by Ms Crawford."

38 The defendant advanced two propositions. One was that the trial judge erred in finding that the risk of injury sustained was a foreseeable risk. The other was that the trial judge "erred in finding that the Defendant failed to apply the appropriate standard of care in directing qualified medical staff not to engage in the alleged activity that caused the alleged injury." The two propositions were supported by the following arguments. "The appellant submits there was [no] obligation or duty on the appellant to prevent injury to any employees from every casual act of a negligent character by third parties in the workplace.

The appellant submits that it could not have foreseen the conduct that occurred would have involved a risk of injury to the plaintiff or to a class of persons including the plaintiff.

The facts of this matter involve two competent and fully trained nurses who would be expected to be familiar with the nature and extent of injuries traumatically induced.

It is submitted that the appellant could not have foreseen such an activity as being likely to happen.

In the alternative, if the event were found to be foreseeable it is submitted that the magnitude of the risk is negligible and the degree of probability of its occurrence is negligible.

There is no real risk of the event occurring. At its highest [it] could only be said that there was the unreal possibility of the risk eventuating.

The appellant submits there has been no breach of duty by it."

39 So far as the defendant's argument rested on its first proposition, that relating to foreseeability, it is useful to bear in mind what Glass JA said in Minister Administering the Environmental Planning and Assessment Act, 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268 at 295-296: "Since the proximity relationship permeates much of the discussion which follows, it is as well to say something at this point about 'the foreseeability of the plaintiff's damage' which is sometimes equated with it. The blunt notion that they are interchangeable, although encouraged by earlier decisions, has been sharpened by subsequent analysis which has rejected ambivalent terms such as likely and unlikely and displaced reasonable foreseeability in favour of the more precise term reasonably foreseeable possibility. Coupled with this a recognition has emerged that the foreseeability inquiry at the duty, breach and remoteness stages raises different issues which progressively decline from the general to the particular. The proximity upon which a Donoghue type duty rests depends upon proof that the defendant and plaintiff are so placed in relation to each other that it is reasonably foreseeable as a possibility that careless conduct of any kind on the part of the former may result in damage of some kind to the person or property of the latter: Chapman v Hearse (1961) 106 CLR 112, at 120, 121. The breach question requires proof that it was reasonably foreseeable as a possibility that the kind of carelessness charged against the defendant might cause damage of some kind to the plaintiff's person or property: Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd; The Wagon Mound (No 2) [1967 ] AC 617, at 642, 632, Wyong Shire Council v Shirt (1980) 54 ALJR 283, at 285, 286; 29 ALR 217, at 219-222. Of course, it must additionally be proved that a means of obviating that possibility was available and would have been adopted by a reasonable defendant, ibid. The remoteness test is only passed if the plaintiff proves that the kind of damage suffered by him was foreseeable as a possible outcome of the kind of carelessness charged against the defendant: Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, at 390."

That was unanimously accepted as a correct statement of the law by this Court (Gleeson CJ, Meagher JA and Hope AJA) in G G Rudge v Murray Tractors Importers Pty Ltd (9 November 1989, unreported). So far as Glass JA's formulation depends on the assumption that proximity remains a significant element in the law, it must be read in the light of later contrary authority: Sullivan v Moody (2001) 183 ALR 404 at [43]-[48] per Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ. But its analysis of foreseeability remains sound. The defendant's submissions appear to be directed to denying the existence of Glass JA's second type of foreseeability - that which must be established if breach is to be proved. 40 So far as the defendant's argument rested on the standard of care, it appeared to contend that the trial judge had misapplied what Mason J said in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48: "In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."

Foreseeability 41 Glass JA's test is that there can be no breach of duty unless it was reasonably foreseeable as a possibility that the kind of carelessness charged against the defendant might cause damage of some kind to the plaintiff's person or property. The kind of carelessness charged against the defendant was put thus in the particulars to paragraph 4 of the Statement of Claim: "(a) Failing to instruct or properly instruct employees in relation to safe working practices.

(b) Failing to instruct employees against the performance of 'pranks' in the workplace.

(c) Failing to counsel against the commission of pranks by employees ." The defendant did, at a later stage of its argument, contend that as a matter of causation even if the instruction or counselling had been given, it would not have prevented the injury. Assuming for the moment that that issue is decided in the plaintiff's favour, it was reasonably foreseeable as a possibility that that kind of carelessness might cause some kind of physical injury to the plaintiff. That is so for the following reasons. 42 First, many nurses and other staff who work in hospitals are young and high spirited. Their duties are stressful and repetitive. No doubt these features existed at Lourdes Hospital. At least on semi-festive occasions, such as occasions when members of staff were departing or a fete was being held, and probably on other occasions as well, practical jokes were a real possibility. The reasonable foreseeability of that possibility is not diminished by the fact that paramedical personnel should be, and usually are, more solicitous about the health of each other and the patients than many other classes of employees. 43 Secondly, there was specific evidence that pranks which were capable of causing physical injury actually occurred. That evidence concerned the practice of throwing members of staff into the spa bath on occasions when they were leaving their employment at the Hospital. The plaintiff witnessed this occurring twice in the two and a half years before Miss Greenwood struck her, and she saw this being witnessed by Miss Crawford, the nursing unit manager. Miss Crawford denied witnessing it, but admitted she was aware of it. She said she issued an oral instruction to some but not all staff to stop it because if there were water on the floor there was a chance of patients and staff slipping on the floor. She could not say whether this instruction was given after the plaintiff's injury or not. She said that to her knowledge there were no general instructions given to all staff to abstain from practical jokes. Miss Greenwood was aware of the practice of immersing people in the spa bath fully clothed; initially she agreed they were thrown in, but later withdrew that. Since they were immersed fully-clothed, there was a risk of damage to whatever property they had on them. Even if the victims were consenting in a general way to the practice of immersion, the particular mode of immersion entailed the risk that some movements might be engaged in without the consent of the victims, and thus there was a risk of injury to those persons. Hence not only was there a reasonably foreseeable risk of injury to be inferred from the general circumstances of hospital life, but there was actual knowledge on the part of the staff of that risk, including staff in a position to give instructions to alleviate the risk. 44 Thirdly, there was also general evidence that practical jokes were common within the Hospital. Miss Greenwood said that pranks were not entirely foreign to the Hospital. Miss Crawford, while not being prepared either to admit or deny the existence of practical jokes, was prepared to admit that they could be played from time to time. The plaintiff heard stories about pranks. While not all pranks or practical jokes involve physical contact or create a risk of physical injury, some do. 45 Fourthly, Miss Crawford admitted that the employees at the Hospital needed to be reminded of or told about the importance of not getting involved in practical jokes because they might have dangerous consequences. 46 Not only was there a reasonably foreseeable risk of injury arising from horseplay in general in consequence of the defendant's failure to give instructions or counselling against that practice, but there was a reasonably foreseeable risk of injury to patients and to members of staff handling them if the horseplay were directed against those members at the time they were handling the patients. The plaintiff submitted that if the patient whom the plaintiff had been wheeling out of the toilet block had been injured by the plaintiff's involuntary reaction to the pain caused by Miss Greenwood's blow or otherwise injured as a result of it, there would be no question but that the defendant would have been liable to the patient. That must be so. Of course the fact that a duty is owed to a patient and the fact that that duty is breached do not necessarily establish either that a like duty was owed to the plaintiff having direct personal charge of that patient or that that like duty was breached: Palsgraf v Long Island Ry Co 162 NE 99 at 100-101 (1928); Bourhill v Young [1943] AC 92 at 108; Ashrafi Persian Trading Co Pty Ltd v Ashrafinia [2001] NSWCA 243 at [74] and [76]-[77]. But the patients in the plaintiff's care were mainly elderly and were all incapacitated by some condition calling for rehabilitation. The very fact that the plaintiff was engaged in carrying out her duties to a disabled patient - concentrating on the task in hand, oblivious to the light- heartedness of others, positioned with her back necessarily turned to the passing traffic and therefore likely to notice little about it - increased her vulnerability and reduced her opportunities to avoid injury. The response of a reasonable man 47 Whether the defendant was in breach of duty depends on what response a reasonable man would make to the reasonably foreseeable risk of injury. This calls for a consideration of the factors described by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48. 48 First, the degree of probability of the risk occurring was not slight. Making allowances for Miss Crawford's bad memory and Miss Greenwood's unsatisfactoriness as a witness, and the general defensiveness of both of them, it seems that pranks and practical jokes were sufficiently common for some injury to occur at some time, even though there is no evidence that any other prank at the Hospital caused physical injury. 49 Secondly, the magnitude of the risk to persons in the position of the plaintiff, if it came to pass, was capable of being high in view of the inherent fragility of the human body and the fact that persons in the position of the plaintiff, concentrating solely on the need to care for their disabled patients, were not in a position to take any precaution reducing the risks of injury. 50 Thirdly, alleviating action in the form of an instruction from whatever level of authority was necessary to desist from practical jokes on pain of dismissal or on pain of what ever other sanction the defendant had available would not have been expensive, difficult or inconvenient. There was certainly no evidence to suggest that that course would have been expensive, difficult or inconvenient. There was evidence that Miss Crawford had given an instruction to some of the staff in relation to a particular type of practical joke. That instruction was obviously not expensive, difficult or inconvenient. 51 Fourthly, there was no evidence that the defendant was subject to any other conflicting responsibilities which could create an obstacle to taking alleviating action. Indeed there is some evidence that paying attention to health and safety among the staff was seen as a positive responsibility. There was a Health and Safety Committee with staff representatives on it already in existence at the Hospital which presumably had either power or influence. 52 Thus the duty alleged by the plaintiff existed and was breached. Miss Crawford admitted that the only instruction about pranks she ever gave was an oral instruction to a section of the staff, though not all of them, and that instruction was limited to the practice of immersing staff members in the spa pool. She also admitted in effect that even that instruction may not have been given until after the injury to the plaintiff. She further admitted that employees at the Hospital needed to be reminded of or told about not getting involved in practical jokes because they might have dangerous consequences. The plaintiff had never received either written or oral instructions about practical jokes. Causation in fact 53 The defendant submitted that even if it had a duty to give instructions forbidding horseplay and the like, and even if it was in breach of that duty, that breach could not have been causative of the plaintiff's loss because compliance with the duty would not have been effective to prevent the plaintiff's injury. 54 There is no evidence to support this submission. There is no evidence that Miss Crawford's instruction about the spa was disobeyed by any of the staff who heard it. The defendant's submission, so far as it had any strength, derived it from the rhetorical device of characterising the relevant instruction or warning as merely "general" or "generalised". While it is true that a general or vague or bland or manifestly perfunctory or half-hearted instruction might be disobeyed, once it is concluded that the tests in Shirt's case were satisfied sufficiently to justify the conclusion that there was a breach of duty, the duty breached was one which, if it were to be performed, would call for a warning that was likely to be effective. The precise power of Miss Crawford was unclear; if she did not hold an office having the authority to give a warning or instruction of sufficient gravity, a warning or instruction should have been given by a person who did hold such an office, and in a form making it likely that staff would comply. The defendant submitted that there was "nothing really" that it could have done. To submit that is to submit that it had no control whatever over its employees in an important matter affecting the health of both staff and patients. However hard the lives of employers have been made by modern legislation, they do retain some control over their employees in fact, and ex hypothesi they have it in law. 55 This reasoning is the stronger if the only aspect of the relevant duty breached which is focused on is alleviating the risk of physical injury to staff caused by horseplay while the staff were attending to patients. It is probable that even the most irresponsible employee, if reminded by a sufficiently clear and stern instruction, would have appreciated that whatever other forms of horseplay might be engaged in, horseplay directed to a member of staff wholly concentrating on patient needs and unlikely to be sharing the light-hearted mood of the perpetrator of the horseplay was dangerous and to be avoided. It follows that there is no reason to suppose that such an instruction would not have been causally effective to avoid the injury. 56 In Betts v Whittingslowe (1945) 71 CLR 637 at 649 Dixon J said that at least in some circumstances: "the breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach … " That inference can be drawn in the present circumstances.

Other issues 57 The defendant did make a submission orally that the trial judge erred in saying "an employer has a duty of care to its employees to protect them as far as possible from the unwanted effects of horseplay or practical jokes". However, there was no relevant ground of appeal; the submission was left completely undeveloped; and, though loosely expressed, the trial judge's proposition is so generally stated that it cannot be said to be wrong. 58 The defendant did not submit that, assuming issues of duties of care, breach of duty and causation in fact were decided against it, there was any other basis on which it could avoid liability. 59 Hence the defendant has not shown that the trial judge was in error in finding the defendant to have been in breach in duty of care it owed directly to the plaintiff. Vicarious liability of the defendant for Miss Greenwood's act of striking 60 In view of the conclusion just reached, it is unnecessary to consider whether the alternative basis of the trial judge's decision, which rested on the defendant's vicarious liability for Miss Greenwood's battery, is correct. Wide though the law of vicarious liability can be, there are certain difficulties in that aspect of the trial judge's reasoning, but since they need not be considered, there is no point in doing so. Damages: non-economic loss 61 The trial judge assessed the plaintiff's non-economic loss at 38% of a most extreme case. 62 He made the following relevant findings: "Having regard to the weight of the above medical evidence I am satisfied the plaintiff suffered an injury to her coccyx which, while probably not a fracture, led to the condition known as coccydynia, which is, on the evidence, an extremely painful and difficult condition to treat. I am satisfied that the postural changes brought about by that condition led to her developing a symptomatic lumbar spine condition and problems with her right knee. I am also satisfied that the combination of continued pain in regard to the coccyx and the lower back, but principally her coccyx together with the developing pain in her right knee coupled with retrenchment from work because of her lack of physical fitness. Whilst responsible for the development of her psychological problems, whilst it may be that there was a pre-disposition to depression within the family that is neither here nor there because there is no evidence of the plaintiff ever having psychological problems before the accident. If in fact she was a vulnerable person then the defendant takes her as it finds her. In any event the plaintiff has shown remarkable spirit in endeavouring and partially succeeding in remaining in the workforce, albeit she is now in a job that she does not like and is far removed from her qualifications and experience. I am also satisfied that her psychological condition, whilst initially severe, has ameliorated with treatment and will eventually subside.

As has been referred to in the medical history the plaintiff sustained a further work related incident with the same employer in September 1997. …

In cross-examination the plaintiff said of the second accident that she had back pain before the incident, enough to cause her aggravation but it was more severe after, and had continued. She was asked to comment on notations in Dr Bowden's notes which are Exhibit D and generally agreed with the notations as far as she could remember. She agreed that as far as she was concerned the incident of September 1997 was very painful and caused a lot of problems and still does.

However, in a way the matters put to the plaintiff in cross-examination in regard to this incident from Dr Bowden's notes was somewhat selective, in my view, and did not convey a true picture of the situation. At the time of the second incident the plaintiff was some five months pregnant. She was already experiencing increasing pain in the coccyx and the low back.

In my view the complaints of symptoms post the 1997 incident are remarkably similar to the complaints to Dr Bowden pre that incident. Having regard to Dr Bowden's notes and Dr Benanzio's report and his specific reference to both incidents, and to some extent Dr Millar's report which, whilst mentioning both incidents, is less specific as to causation, I am satisfied on the balance of probabilities that the September 1997 incident acted on a back that was already stressed by the coccydynia and the postural problems caused thereby to the lumbar spine.

I am satisfied that any continuing effects of the second incident were as a result of and incidental to the injuries already sustained in the first incident. I am not satisfied that the second incident has resulted in the plaintiff being unable to work in her chosen profession, and as far as the second incident is concerned I am not satisfied on the balance of probabilities that that incident would be likely to give rise to any further claim for weekly compensation or medical expenses.

It is significant in this regard that the plaintiff's decreasing ability to work was not consequent upon the second incident but consequent upon the operation of 21 August 1998 and the failure of that operation to have the symptoms of her coccyx alleviated.

The plaintiff, despite initial job retraining whilst on light duties, was eventually dismissed on medical grounds. She completed a course in office administration in June 1999 and after her dismissal on 2 June 1999 obtained employment as a tele-marketer with Flick Pest Control where she does between 8 to 16 hours per week. She says that she would do more if it was offered. She uses a kneeling chair to assist her with her back. She said that she does not enjoy the work and would prefer to be in a job more suited to her qualifications and experience. She feels she would be able to do work in the field of hospital administration if she could get such a job.

I am satisfied the plaintiff is doing her best to overcome the problems of her injury, the problems her injury has caused to her work situation. I am satisfied she is no longer fit for work as an enrolled nurse and would be restricted in regard to other occupants involving prolonged sitting or bending." 63 The defendant submitted that the trial judge should have assessed the plaintiff's economic loss at only 30% of a most extreme case. It pointed out that the trial judge had found that the effects of the second accident had ceased, and that the trial judge had found that the plaintiff's psychological condition had ameliorated and would eventually subside. The defendant argued that the medical evidence showed some agreement that there was potential for further resolution in future of the plaintiff's symptoms in her coccyx and lower back. However, while Dr Machart expected "eventual resolution" of the plaintiff's symptoms, the time-frame contemplated was apparently quite lengthy. On the other hand, Dr Millar said that "eventual recovery" was "a very long term view". Dr Benanzio held out the possibility of recovery, but did find a 25% permanent impairment of the back. Dr Tomas thought the plaintiff's back pain "may slowly improve over the coming years", but said that it was more likely that the pain would remain constant. Dr Hargraves was pessimistic about the plaintiff's ability to return to full-time nursing. Dr Carter predicted "persistent ongoing painful symptoms". 64 The medical evidence does not show any consensus about relatively speedy resolution of symptoms, and reference to the medical evidence does not suggest that the trial judge's selection of 38% was selection of a figure outside an appropriate range. Damages: future economic loss 65 The trial judge awarded $166,500 for economic loss from the time of the trial. 66 The trial judge's reasoning was as follows. "In regard to future economic loss the plaintiff makes a specific calculation as set out in paragraphs 5A and B of MFI A. The defendant disputes the calculation and says that the better way of dealing with future economic loss in the circumstances of this case is by way of a cushion payment. The plaintiff's evidence is that she would have had another child and probably will have so that the plaintiff's calculation allows a current earning rate of seven shifts per week for five years less what she is already earning at present. Additionally the plaintiff says that if offered increased hours with her present employer she would take them. That has to be considered as well.

The plaintiff puts her claim for future economic loss on a calculation of a loss of $385 per week, namely her nurse's salary of $526 net per week minus her salary at Flick which is $140 net per week on an average for five years, the time over which she will be involved with her children and a further child, thereafter a loss of $250 per week for 30 years, delayed for a period of five years.

The plaintiff is entitled to be compensated for a loss of earning capacity. Sometimes this is capable of direct calculation in which case wage records and the actuarial of tables come into play. Sometimes the plaintiff's future economic loss is not as capable of direct calculation. In part that is the case here and to that extent I adopt defence counsel's submission in regard to a cushion payment. Indeed the plaintiff's own case recognises the generality of its claim in that regard in the way paragraph 5B of MFI A is estimated which can only be an estimate, albeit its an estimate lower than her actual loss at the moment. The plaintiff has a serious ongoing disability that I am satisfied will continue into the future and will preclude her from returning to her chosen profession. Indeed she has limitations even in more sedentary occupations. That situation is unlikely to improve although, of course, she may well in the future attract a job where she achieves a comparable salary to that which she was receiving as a nurse. By the same token had she continued her occupation as a nurse I would expect that she would have progressed beyond the base rate applicable.

In all the circumstances I am satisfied on the balance of probabilities the plaintiff has sustained a significant loss of earning capacity. I calculate that loss by adopting the figure of $75,758 at paragraph 5A of MFI A and adding to that figure a sum of $120,000 by way of a cushion payment. From the sum of both these figures should be deducted a figure of 15 percent for vicissitudes leaving a net figure of $166,500, rounded up. I allow 8 percent of that figure by way of loss of superannuation which comes to a figure of $13,320. Past medical expenses are agreed at $24,174.35."

67 Counsel then pointed out that the trial judge had discounted the figure for the first five years for vicissitudes at 15% twice whereas it should only have been discounted once. The trial judge then made an adjustment for that error. Together with another adjustment, that produced the result of the figure of $320,370.35 which the defendant was ordered to pay. 68 The plaintiff conceded on appeal in her written submissions that the trial judge had made a further error. The error lay in adopting the figure in paragraph 5(a) of the plaintiff's schedule of damages. That item said: (a) 7 shifts per week for five years less average $140/wk earnt, $385 x 231.5 x 85 $75,758 In fact the figure should have been calculated on the basis of the plaintiff working seven shifts per fortnight but for the accident, not seven shifts per week. This made the plaintiff's weekly net earnings but for the accident $365. Deducting $140, that left $225. The product of $225, 231.5 and 0.85 (for vicissitudes) is $44,274. This meant that $31,500 too much was awarded for the five years from the trial. 69 The defendant attacked the allowance by the trial judge of $102,000 as a cushion (i.e. $120,000 less 15% for vicissitudes). The primary basis for that attack is that given the probable improvement in the plaintiff's disabilities, given the fact that her present capacity to earn is restricted by family commitments, and given the fact that she had retrained herself in such a way as to qualify for a sedentary administrative position, the cushion was excessively large. That attack fails. So far as it rests on the supposed probable improvement in the plaintiff's disabilities, that improvement is not sufficiently clear to make the attack good for reasons already looked at. The trial judge took into account for the period beyond five years after the trial the fact that the plaintiff would not be encumbered by family responsibilities. The indeterminacy necessarily involved in selecting a particular figure for a cushion is such that it cannot be said that the possibility of acquiring an administrative job invalidates the figure selected. 70 A further consequential adjustment in relation to superannuation is called for by reason of the error conceded by the plaintiff in relation to future economic loss. The trial judge allowed $13,320 for superannuation. That was 8% of the total figure for future economic loss, $166,500, before he made his adjustment to avoid double counting the 15% deduction for vicissitudes in the period for five years after the trial. It is necessary to arrive at a new figure for superannuation by taking 8% of the new figure for future economic loss, which is $146,274 ($44,274 plus $102,000). That new figure for superannuation is $11,701.92. The difference between $11,701.92 and $13,320 actually allowed by the trial judge is $1,618.08. That should be deducted from the judgment sum of $320,370.35, together with the $31,500. The new judgment sum is $287,252.27. Orders 71 The defendant has failed in all its challenges save for a challenge the correctness of which, at least arithmetically, was in large measure conceded, and a challenge to the superannuation figure which was consequential on that. That is, the defendant succeeded in a challenge to the trial judge's award for future economic loss, but on a basis it did not put and on a basis conceded in principle by the plaintiff. The defendant won on the small dispute about the financial consequences of the plaintiff's concession, but that took very little time. In all the circumstances the plaintiff's costs of the appeal should be borne by the defendant since on every issue on which there was substantial controversy the defendant lost. 72 In view of the possibility of error in recalculating the new judgment sum, provision is made for liberty to apply. 73 The orders proposed are as follows: 1. The appeal is allowed.

The judgment of the trial judge in the sum of $320,370.35 is set aside.

In lieu thereof, there will be judgment in the sum of $287,252.27 with effect from 6 October 2000.

The defendant is ordered to pay the plaintiff's costs of the appeal.

It is noted that the costs order made by the trial judge stands.

Liberty to apply on seven days' notice is granted.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

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