Manhattan Homes Pty Limited v Burnett [2024] NSWCA 219 | Case summary

Court of Appeal (NSW)|2024-07-24|Before: Leeming JA, Harrison CJ, Schmidt AJ

Solicitors: McMahons Lawyers (Appellant / First Cross-respondent) Brydens Lawyers Pty Ltd (First Respondent / Cross-Appellant) Turks Legal (Second Respondent / Second Cross-respondent) File Number(s): 2024/63874 Publication restriction: NIL Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: Burnett v Manhattan Homes Pty Ltd [2023] NSWSC 1431 Date of Decision: 24 November 2023 Before: Schmidt AJ File Number(s): 2020/207227

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

JUDGMENT

LEEMING JA: I agree with Harrison CJ at CL, but wish to add the following on grounds 8(a) and 8(b) concerning contributory negligence, in relation to which we are departing from the reasons of the primary judge.
Parts of the reasoning of the primary judge concerning contributory negligence are expressed to proceed on the basis that the issue was whether Mr Burnett was inadvertent as opposed to negligent. That may be seen in [196] ("his case was that he had only been inadvertent and not negligent") and the ultimate conclusion at [214] of not being satisfied "that the evidence establishes that Mr Burnett's fall was the result of his own contributory negligence rather than such inadvertence". Those formulations of the issue do not reflect the law. As much may be seen from the leading judgment of Gibbs J in Commissioner of Railways (Qld) v Ruprecht (1979) 142 CLR 563 at 567-568: [1979] HCA 37 who wrote "Counsel for the Commissioner submitted that the fact that the respondent had acted inadvertently or thoughtlessly did not necessarily mean that he had not been negligent, and that of course is correct". It is as well to return to the decision cited by Gibbs J, Sungravure Pty Ltd v Meani (1964) 110 CLR 24; [1964] HCA 16. That decision was an appeal from a pre-Judicature action in the Supreme Court of New South Wales conducted by Jacobs P and a jury, before contributory negligence as an absolute defence had been abolished by statute. Jacobs P had considered that there was evidence of contributory negligence, and left that issue to the jury on one of the two counts that went to trial. The jury returned a verdict for the employer. However, the Full Court allowed an appeal, quashed the verdict and ordered a new trial on the basis that there was no evidence on which a finding of contributory negligence could be made and thus the jury had been misdirected. But the High Court allowed the employer's further appeal, with the result that the jury's verdict was restored. The error made by the Full Court was identified by Kitto, Menzies and Owen JJ at 33: In support of the Full Court's decision, counsel for the respondent made the further submission that the evidence was equally consistent with the view that the respondent had merely acted thoughtlessly or inadvertently and not negligently and that, in these circumstances, a finding of contributory negligence could not be made. The argument seemed to proceed upon the basis that there was a clear line of distinction to be drawn between an act done without reasonable regard for one's own safety on the one hand and an act done inadvertently or without thought on the other. But we are unable to agree that this is so. An inadvertent or thoughtless act may also amount to a negligent act for the very reason that it is done without thought for or consideration of the consequences that may follow from the doing of it, and whether it is so or not is a matter for the consideration and determination of the tribunal of fact.
(The same issue did not arise on the second count, because the Statutory Duties (Contributory Negligence) Act 1945 (NSW) abrogated the common law defence for actions for damages founded on breach of a statutory duty.)
Windeyer J wrote to the same effect, criticising the distinction for which counsel contended between "thoughtlessness, inadvertence, forgetfulness and negligence". Windeyer J recorded that counsel had said that "the first three on the one hand, and negligence on the other, were mutually exclusive concepts": at 37. Windeyer J rejected the distinction. In part it is because of a category error: "whereas the law knows what is meant by negligence, it has no precise definition of inadvertence which would make it a distinct legal concept". His Honour observed that the states of mind in the case of both negligence and heedlessness were identical: "in either case the party is inadvertent".
Sometimes this test is encapsulated in the distinction between mere inadvertence and contributory negligence, being the test authoritatively stated in McLean v Tedman (1984) 155 CLR 306 at 315; [1984] HCA 60, and which her Honour mentioned at [199]. It is to be borne in mind that the word "mere" does a deal of work in that encapsulation. It is necessary when applying that test to bear in mind that inadvertent conduct by a plaintiff may or may not amount to contributory negligence, and the real question is as Mason J put the issue at 573 in Ruprecht, whether Mr Burnett's omission was incompatible with the conduct of a reasonable and prudent man. The issue is unavoidably factual, and draws upon the proposition that especially in the case of tedious repetitive work, inadvertence is foreseeable. The primary judge was with respect correct to note at [201] that: Inattention bred of familiarity and repetition, the urgency of a task, a person's preoccupation with the matter in hand and other prevailing conditions may thus be taken into account in determining whether some temporary inadvertence, some inattention or some taking of a risk, "excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man", when determining what caused the risk to which Mr Burnett was exposed to materialise: Sungravure at 37.
However, as Harrison CJ at CL explains, absent from her Honour's reasoning is an explanation for why Mr Burnett's undoubted inadvertence was excusable so as to render contributory negligence inapplicable. I respectfully agree with his Honour. This Court should intervene.
HARRISON CJ AT CL: Gary Burnett was seriously injured on 27 February 2019 while working on a building site at Greenhills Beach where Manhattan Homes Pty Ltd was constructing a two storey dwelling. On that day, Mr Burnett walked upon unsecured boards on the second level of the house which partly covered a void for the stairwell when he fell to the floor below. He sued Manhattan claiming damages for negligence. At the time of the accident, Mr Burnett was employed by Griswold's Outdoor Xmas Pty Ltd, a company of which he was the sole director and shareholder. Manhattan and Griswold's filed cross-claims against each other seeking contribution or indemnity as joint tortfeasors pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946.
On 24 November 2023, after a seven day hearing before Schmidt AJ, her Honour published her reasons for judgment: Burnett v Manhattan Homes Pty Ltd [2023] NSWSC 1431. The Court made orders giving effect to the judgment on 8 February 2024 in these relevant terms: 1. Judgment for Mr Burnett against Manhattan for $2,234,467.73. 2. Manhattan to pay Mr Burnett's costs. 3. Judgment for Manhattan against Griswold's on the first cross-claim for $133,458.60. 4. Griswold's to pay Manhattan's costs of the first cross-claim. 5. Judgment for Griswold's against Manhattan on the second cross-claim for $1,256,412.43. 6. Manhattan to pay Griswold's costs of the second cross-claim.
Orders (3) to (6) were based upon her Honour's findings that Manhattan and Griswold's were liable for Mr Burnett's loss and damage respectively in the proportions 80:20. Her Honour concluded that Mr Burnett had not contributed to his loss by reason of his own negligence.

The appeal

Manhattan now appeals to this Court upon the following grounds: 8A The primary judge erred in failing to find that Mr Burnett was guilty of contributory negligence. 8B The primary judge ought to have discounted Mr Burnett's damages by at least 50% for contributory negligence. 8C The primary judge erred in finding that Manhattan was 80% culpable for the accident. 8D The primary judge ought to have found that Manhattan was 50% or less culpable for the accident with Griswold's culpable for the remainder. 9 The primary judge's finding that Mr Burnett had no residual earning capacity was against the weight of evidence and, in particular, the evidence of Dr Low and Professor Bright that this was not the case and, in particular, that Mr Burnett was able to undertake his pre-accident business of The Griswold's Outdoor Xmas Pty Ltd. 10 The primary judge ought to have found that Mr Burnett has a residual earning capacity of at least equal to that of 25% of his pre-accident earning capacity. 11 The primary judge erred in including in this award an element for commercial assistance when the evidence was that Mr Burnett was not inclined to engage commercial assistance. 12 The primary judge erred in making the award (for future gratuitous attendant care services) in that it was excessive and failed to take into account the evidence that the assistance provided by Mr Burnett's wife would be at the same level but for the accident. 13 The primary judge erred in failing to reduce the award (for future gratuitous attendant care services) to take into account the vicissitudes of old age. 14 The award (for future out of pocket expenses) was manifestly excessive and not supported by the weight of the evidence, in particular the need for airfares and or air transport. 15 No or no sufficient reduction (for future out of pocket expenses) was given on account of vicissitudes.
Mr Burnett cross-appealed challenging her Honour's award for non-economic loss and domestic assistance. His challenge to her Honour's award for future economic loss was not pressed.

Grounds 8A and 8B

Manhattan was the principal contractor of a residential construction site in Shorebird Parade, Greenhills Beach. Manhattan had subcontracted some work to Griswold's. During construction, the staircase void was initially protected by floor sheeting supported by steel joists installed by Safeworx Group Pty Ltd. The void protection had been installed when the frames of the dwelling were erected.
Mr Burnett gave evidence that at the time of his accident, a staircase had been built to provide access to the first floor but there was no balustrade either on the staircase itself or around the first floor opening. The void at the top of the staircase was in part covered with flooring sheets.
At the time of the accident, Mr Burnett was carrying tiles from the upstairs bathroom with the intention of taking them downstairs. He had been undertaking rectification work in that bathroom where tiles had to be removed. Mr Burnett had made two or three trips carrying tiles in this way before the accident occurred. As Mr Burnett stepped onto the temporary flooring over the void, it collapsed and he fell through to the ground floor.
Mr Burnett said that he had been on site the day before as well as some time before that. He said that he did not know when the stairs were installed. His recollection was that they had not been there when he was on site previously.
Paragraph 18 of Mr Burnett's first evidentiary statement was in these relevant terms: "18. There was no handrail around the void at the top of the stairs. There were boards which were supported by metal beams which covered the void except for the area where the stairs ascended up to the first floor. I was intending to step onto the boards and then onto the first or second step of the staircase when my accident happened. My last memory is of walking from the bathroom to the stairwell. There were temporary flooring boards covering the void up to the edge of the stairwell and I remember suddenly feeling that I was falling…"
Mr Burnett was cross-examined. He was shown a photograph of the site depicting the void viewed from the first floor. He gave this evidence: "Q. Do you recognise that photograph as depicting the first floor of the building site at which you had your accident? A. Yeah. Q. You can see can you not, in the foreground the top of the stairs ascending to the first floor, yes? A. Yes. Q. You see the stairs have, well there's no balustrade that you can see there is there? A. No. Q. A portion of the void cover has been removed, hasn't it? A. Yes. Q. Is that what the floor looked like on the day of your accident? A. Except for the steel beam underneath that rail there, yeah. On that board there, 'cause this- - Q. You didn't ever go back to this worksite after you've had your accident, did you? A. No. Q. So all the evidence that you're giving this courtroom today are from your observations made prior to having the accident, aren't they? A. Sorry? Q. All the evidence you give today and to this Court about the building site are from your observations that you made of the building site before the accident, aren't they? A. Yes."
Mr Burnett's cross-examination continued a little later as follows: "Q. To be able to tell this Court that there was no steel beam present on the day of the accident, you must've noted its absence before your fall, mustn't you? A. Yes. … Q. Just so I'm fair, you must've seen before your accident that the steel beam was not there? A. Yes. … Q. You knew that the staircase was not complete, didn't you? A. Yes. Q. You knew the staircase had no balustrade? A. Yes. Q. When you got to the first floor and you got the tiles together, you decided to use the staircase, didn't you? A. Correct. Q. Yes? A. Well I was loading up tiles at the staircase, yes. Q. But when you were loading up the tiles, if you look at that photograph, were you putting the tiles on the boards, the void-covering boards? A. No. Q. Were you putting the tiles at the head of the stairs? A. Yes. Q. When you got your third load of tiles, you decided to walk across the void board, didn't you? A. Yes. Q. As a shortcut to the stairs? A. Yes. Q. That's a board that you knew the steel support had been removed from, didn't you? A. At the time I was doing that I had what I needed to go and get to do the job, so I had other thoughts in my mind. Q. Are you agreeing with me that at the time you took that shortcut across the board that covered the void, you knew- - A. No. Q. - - that the steel support had been removed? A. No. Q. When did you find out that the steel support had been removed? A. When I fell. Q. I beg your pardon? A. When I fell. Q. You didn't know when you fell that the steel board had been removed, did you? A. The reason of the fall was the steel beam had been removed, yes. Q. I'm not asking you to give a reason why you fell. I'm asking you what you knew at the time. You've told this Court that that steel support had been removed? A. Yes. Q. You could've only discovered that before you fell? A. While walking up the stairs I would've noticed, yes. Q. Yes, while walking up the stairs. So when you decided, you put the first two loads of tiles at the top of the stairs, didn't you? A. Yes. Q. You avoided walking over the board? A. Correct. Q. Then on the third occasion you walked over the board, and had you thought about it, you would've known that the steel support had been removed- - A. Yes. Q. - -wouldn't you? A. Yeah. … Q. Did you observe Nathan walk up and down the stairs before or after the steel beam was missing from the void protection? A. Yes. Q. What? A. Yes, he walked up the stairs the morning of, the steel beam wasn't there. Q. And you knew that? A. He walked up it. I knew that, yeah. Q. But you knew the steel beam wasn't there? A. Yes. Q. You knew that was a problem, didn't you? A. Yes. … Q. You knew that was a hazard, didn't you? A. Yes. … Q. At the time of your accident, you knew that there was a problem with the stair void protection system didn't you? A. Yes."

Her Honour's conclusions - contributory negligence

Manhattan contended that having regard to Mr Burnett's evidence, her Honour was in error in forming the view that he did not contribute to his own loss and that he was guilty of no more than inadvertence. In order to understand that submission, her Honour's reasons require consideration. They are as follows: "Was Mr Burnett contributorily negligent or only inadvertent? … [196] That Mr Burnett was negligent was in issue. His case was that he had only been inadvertent and not negligent when he stepped onto the board he knew was unsupported, while absorbed in his work, as he approached the stairs, that resulting in his fall into the void. Manhattan and Griswold's both contended that he was contributorily negligent. [197] That has to be resolved in accordance with the requirements of Div 8 'Contributory negligence' of the Civil Liability Act: ss 5R and 5S discussed in Verryt v Schoupp (2015) 70 MVR 484; [2015] NSWCA 128. The onus falls on Manhattan and Griswold's to establish the claimed contributory negligence. [198] The same principles as those earlier discussed apply to a consideration of Mr Burnett's claimed contributory negligence: s 5R. The standard of care required of him was that of a reasonable person in his position. What is in issue must be determined on the basis of what he knew or ought to have known at the time. That he knew the boards near the stairs were unsupported before he fell was volunteered, as I have explained. [199] As discussed in McLean v Tedman (1984) 155 CLR 306; [1984] HCA 60, when an issue such as this arises, attention has to be paid to the well-recognised distinction between negligence and mere inattention or inadvertence. Whether this is such a case depends on questions of fact. Thus account must be taken of the circumstances and conditions in which the work Mr Burnett was given by Mr Johnson, had to be done. [200] The authorities establish that a duty to take reasonable care extends to the possibility that an employee will act inadvertently or without taking reasonable care for his or her own safety: McLean at 312. Accordingly, reasonable care must be exercised to avoid an employee's exposure to the risk of injury in the event of inadvertence, inattention or misjudgement when performing a task he or she is given: Sungravure Pty Ltd v Meani (1964) 110 CLR 24 at 36-37; [1964] HCA 16. [201] Inattention bred of familiarity and repetition, the urgency of a task, a person's preoccupation with the matter in hand and other prevailing conditions may thus be taken into account in determining whether some temporary inadvertence, some inattention or some taking of a risk, 'excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man', when determining what caused the risk to which Mr Burnett was exposed to materialise: Sungravure at 37. [202] I am satisfied that the evidence establishes that such temporary inattention or inadvertence on Mr Burnett's part rather than negligence, was what caused the materialisation of that risk. Contributory negligence is not established [203] Mr Burnett himself volunteered his knowledge of the missing support for the boards near the stairs in cross-examination. He had noticed this when he went up the stairs earlier on the day of his fall. [204] His case was that despite having this knowledge, later, as the result of inadvertence while he was removing broken tiles from a bathroom, on his third trip carrying a load of tiles he stepped onto one of those unsupported boards as he approached the stairs. The result was that the board moved, causing him to fall to the ground below. [205] For reasons I have explained, I am satisfied that this is what occurred. [206] The risk which materialised when Mr Burnett stepped onto the unsupported board was obvious, given what he had earlier observed, as he accepted. He then not being sufficiently attentive to where he stepped, as he approached the stairs while absorbed in his task, is an entirely likely explanation for him stepping as he did onto the unsupported board over the void which he knew was unsupported and liable to fall as it did. There is no suggestion that he did so being prepared to take the risk that it would not fall, which would undoubtedly have not only involved him in not taking reasonable care for his own safety, but in the circumstances acting in a way that was entirely foolhardy. [207] Mr Burnett was very experienced in the work he was doing for Manhattan. There is no suggestion that he had taken unsafe risks in the past, or even that he had ever been injured while working on a building site. On all of the evidence I have discussed I am not satisfied, on the balance of probabilities, that his fall was the result of his own negligence, uncharacteristic as it appears that would have been to that point. [208] On the evidence, much more likely is that his fall was the result of Mr Burnett's inadvertence, as he was engrossed or preoccupied with the task he had been given to do, as he approached the stairs carrying his third load of tiles, with the result that he did not bear in mind as he needed to the unsupported boards near the stairs. [209] It was the dangerous position in which Manhattan had put this construction site that permitted his inadvertence to result in the materialisation of the risk by which Mr Burnett was harmed. Namely, stepping onto an unsupported board lying over the void near the top of the stairs, rather than continuing to walk safely along the floor, that not having been prevented by installation of a handrail separating the floor and the void. [210] This conclusion is supported by what the photos establish. The remaining boards covering part of the void and the floor where not only lying flush to each other, but were similarly coloured. Because there was no balustrade, temporary railing or anything else separating the floor and the boards, there was nothing to draw to the attention of someone walking along the floor, that part of the void cover remaining near the stairs was then unsupported and thus dangerous. [211] In those circumstances, it must be accepted that someone working like Mr Burnett, could easily have strayed inadvertently from the floor, to step onto an unsupported board near the stairs as he approached them, while engaged in his task. [212] That conclusion is supported by the tear which can be seen in the inspector's photo, near the top of those stairs. That is consistent with it having been torn as the unsupported board and Mr Burnett suddenly fell to the ground below while carrying a load of tiles. That Mr Burnett intended to risk causing such damage, is unlikely. [213] It was the partially uncovered void, the absence of a balustrade and the unsupported board near the stairs which allowed Mr Burnett to fall some three metres to the ground as he did when the board collapsed under him, as Manhattan notified SafeWork had occurred. That also permitted his inadvertence to result in such a fall and the resulting terrible injuries which he suffered. [214] In the result, I am not satisfied, on the balance of probabilities, that the evidence establishes that Mr Burnett's fall was the result of his own contributory negligence, rather than such inadvertence."

Contributory negligence - consideration

It is clear from the evidence, and Mr Burnett accepted, that he knew and was aware of the physical conditions of the site that caused his fall before it occurred. Her Honour referred to that concession at 10, noting that on the day of the accident, when he used the stairs before his fall, Mr Burnett saw that the steel bars supporting the boards which covered the void near the stairs had been removed. He knew that the boards were no longer supported. His evidence extracted earlier at [12] and [13] makes this clear. Accordingly, the assessment of whether he should be found to have failed to take proper care for his own safety falls to be determined not by reference merely to what he ought to have known but having regard to what he knew in fact. This is not, in the parlance of the old law in relation to occupiers' liability, a case of him having been confronted with an unusual danger or a hidden trap. Mr Burnett was fully conversant and acquainted with the state of the floor boards and their lack of support.
Accordingly, in expressing her view at [207] that she was "not satisfied, on the balance of probabilities, that his fall was the result of his own negligence", I take her Honour to have concluded that that was so only because, as she found at [208], it was on the evidence much more likely that Mr Burnett's fall was the result of his inadvertence. This was because, as her Honour concluded, Mr Burnett was engrossed in or preoccupied by the task he had been given to do, with the result that he did not bear in mind the unsupported boards near the stairs. It seems clear that her Honour's reasoning proceeds on the basis that, but for his inadvertence, Mr Burnett would have been guilty to some extent of negligently contributing to his own loss.
Manhattan maintained in those circumstances that her Honour's analysis of Mr Burnett's inadvertence as an answer to contributory negligence was erroneous. Manhattan's submission was in these terms: "17 Nor is inattention or inadvertence a universal panacea negating contributory negligence. As Kitto, Menzies and Owen JJ observed in Sungravure Pty Ltd v Meani (1964) 110 CLR 24; [1964] HCA 16 at 33, 'an inadvertent or thoughtless act may also amount to a negligent act for the very reason that it is done without thought for or consideration of the consequences that may follow from the doing of it.' The primary judge cited this case…in support of the uncontroversial proposition that a duty of care may require taking precautions against the risk of injury in the event of inadvertence, inattention or misjudgment by a worker. However, the primary judge failed to consider and apply the reasoning in that case to the effect that inadvertence etc can constitute contributory negligence. 18 In that regard, most cases of primary negligence involve inadvertence, inattention or misjudgment by someone. It is extremely rare that a defendant can rely on such factors as exculpatory of primary negligence. Section 5R Civil Liability Act 2002 now reinforces the common law principle that the standard of care for contributory negligence is the same as that for primary negligence, that is, that of the reasonable person in the circumstances. Thus, whilst a duty of care may require that identifying the reasonable precautions which ought to have been taken included taking into account inadvertence, inattention and/or misjudgment, it does not follow that inadvertence, inattention or misjudgment are always, or even usually, sufficient of themselves to negate contributory negligence in every case, including those involving workplace injuries."
It may be accepted that the risk was obvious, particularly in the sense that Mr Burnett knew of the unsupported state of the floorboards, and that the possible consequences of falling from the first floor meant that the risk was also serious. He was fully aware of the void, the height, the unsupported boards and the absence of a banister or temporary guardrail: Council for the City of Greater Taree v Wells [2010] NSWCA 147 at [107]-[108]. The question is what a reasonable person in Mr Burnett's position should have done to protect himself or herself against the risk of harm of which he was aware.
Manhattan submitted that the facts and circumstances of this case were analogous to those considered in Commissioner for Railways (Qld) v Ruprecht (1979) 142 CLR 563; [1979] HCA 37 in which Mason J observed at 573: "I acknowledge that there is a high risk of danger in shunting operations. However, this circumstance merely underlines the stern necessity for the employee to take care for his own safety. It makes it the less excusable that the respondent should omit to take an obvious and necessary precaution. This is not a case involving an industrial process in which the risk of injury is fairly slight, a process of which it might be said that the employee becomes blinded to the risk by reason of familiarity and repetition. The evidence of the witnesses in this case emphasized the degree of risk and the near misses which should remind the shunter of the ever-present danger inherent in the operation."
Mason J's comments in Ruprecht were referred to with approval by Meagher JA in Waco Kwikform Ltd v Perigo [2014] NSWCA 140 at [81]-[82]: "[81] Here Mr Perigo was to dismantle each row of bays at his own pace. He had been told it did not matter how much time that took. The lifting of boards from the bay above did not impede his ability or capacity, as he finished dismantling planks from one bay, to see whether a ledger or ledgers had been used as a transom in the next. The tasks he had to perform were repetitive and had to be performed for long periods of time without a significant break. They were not, however, complex in the sense that they required attention to a number of matters happening at the same time. Furthermore, the fact that Mr Perigo was working eight metres above ground level continued to emphasise the need for him to be careful when finishing work in one bay and moving to the next because of the risk of serious injuries in the event of a fall. [82] The primary judge emphasised the repetitive nature of Mr Perigo's work in lifting planks down to the level below as supporting the conclusion that the fact that he did not see the ledger on his left did not involve a failure to take reasonable care on his part. In doing so her Honour's analysis does not, in my view, take sufficient account of the fact that Mr Perigo's method of work required that he move forward from one bay to another, lifting down boards from the bay above as he went. As each bay was finished it was necessary to check the components which had been used in the next bay to make sure that it did not require wooden planks. The fact that the task of lifting planks from the level above was repetitive or 'robotic' (see [190]) does not explain why, to adopt the language of Mason J in Ruprecht at 574 'a reasonable and prudent man' in his situation 'would have omitted to take an obvious and necessary precaution for his safety'. Mr Perigo's failure to do so was, as Mr Campion's evidence suggested, incompatible with the conduct of a reasonably careful scaffolder."
Mason J in Ruprecht also referred to Sungravure saying this at 571-2: "It is therefore settled law that this approach to contributory negligence is not limited to employees in factories or to cases in which there is a breach by the employer of a statutory duty the performance of which is designed to protect the employee from injury, whether in consequence of his own inadvertence or otherwise. Nor, in my opinion, is it limited to cases of negligence in which the employer has failed to provide a safe system of work as in the Sungravure Case, though it is peculiarly appropriate to cases of this kind because the existence of an unsafe system of work increases the risk of injury to an employee through his inadvertence. There is nothing in the Court's exposition to suggest that the principle has no application to cases in which a defendant employer is held liable in negligence for the casual act or omission of the plaintiff's fellow employee. The statement of principle in the Sungravure Case was not expressed to hinge upon any distinction between contributory negligence and negligence ... In terms it is as apposite to the question whether conduct on the part of an employee constitutes negligence on his part as it is to the question whether the same conduct constitutes contributory negligence. Indeed, the fact that the one standard of care, that of the reasonable and prudent man, is common to both negligence and contributory negligence, seems to demand the dual application of the principle to negligence and contributory negligence on the part of an employee."
This is therefore the context in which Mr Burnett's inadvertence or intention come to be considered. However, in advance of that inquiry, Manhattan submitted that the only evidence that could have amounted to inadvertence, inattention or misjudgment was Mr Burnett's statement that "I had what I needed to go and get to do the job, so I had other thoughts on my mind". Her Honour's reference at [201] to "inattention bred of familiarity and repetition, the urgency of a task, a person's preoccupation with the matter in hand and other prevailing conditions" incorporates the classic indicia of inadvertence but in Manhattan's submission the reference was inapplicable to Mr Burnett as there is no material to support it. For example, Mr Burnett gave no evidence of what his other thoughts were or that he was working under time pressures, was confused, suffered from the effects of fatigue or financial distractions or that he did not appreciate the danger. In these circumstances, Manhattan contended that her Honour was in error in finding that Mr Burnett had established that he was distracted by his task and in finding as a result that he had not negligently contributed to his own loss.
Mr Burnett submitted that his awareness of the missing support for the boards near the stairs, which awareness he acquired earlier in the day when ascending them, "was not on his mind" at the time of his fall. Although written submissions filed in this Court on Mr Burnett's behalf also suggest that he only found out when he fell that the steel support for the boards had been removed, that submission is contrary to the evidence and cannot be accepted. Indeed, the very notion of inadvertence upon which her Honour proceeded necessarily assumes an anterior failure to take proper care for his own safety which is otherwise excusable. That notional failure could only have been based, in the particular circumstances of this case, upon his knowledge of the missing steel supports.
Mr Sheldon of senior counsel for Mr Burnett embraced her Honour's conclusion at [208] that it was "much more likely…that his fall was the result of [his] inadvertence, as he was engrossed or preoccupied with the task he had been given to do, as he approached the stairs carrying his third load of tiles, with the result that he did not bear in mind as he needed to the unsupported boards near the stairs". Mr Burnett's response to Manhattan's contention that merely having "other thoughts in [his] mind" was inadequate to establish relevant inadvertence was to contend that there was no attempt in cross-examination of him to elicit what those other thoughts were. However, the burden of establishing those matters rested with Mr Burnett.
Mr Burnett's task of removing tiles from the upstairs bathroom in order to take them to the ground floor of the premises was neither technically complicated nor conceptually difficult. It was also not repetitive in any relevant sense, physically taxing or performed in a noisy or distracting environment. In my opinion, the evidence does not support a finding that the nature of the work that Mr Burnett was required to perform was likely to have diverted his attention from his surroundings and Mr Burnett's evidence does not go as far as to establish or even suggest that the "other thoughts" on his mind were related to, or a function of, the task itself. In my view, her Honour's conclusion that Mr Burnett's fall was not caused by any fault on his part by reason of his exculpatory inadvertence or inattention cannot be supported by the evidence.
Mr Burnett also submitted that the difficulty with paragraph 17 of Manhattan's submissions is that the hypothetical "inadvertent or thoughtless" act to which the High Court was referring in Sungravure did not there involve the plaintiff exposing himself to a risk of harm from a defect that was not observable at the time the accident occurred. In that respect, Mr Burnett sought in effect to argue that the physical conditions and surroundings on the first floor, from which he fell, did not serve to remind him of the unsupported nature of the boards which he stepped on, and which he had earlier observed from below. In other words, any allegation that he failed as a reasonable person to take proper care for his own safety had to take account of the fact that the relevant defect was not observable from where he fell. In considering whether or not Mr Burnet could demonstrate that he could be excused for not adverting to the danger at the time of the accident, and that his failure at the time to take reasonable care for his own safety was therefore explicable, the absence of contemporaneous physical cues alerting him to the danger is relied upon by Mr Burnett as an important consideration.
In my opinion, the absence of cues on the first floor says nothing about whether Mr Burnett can be relieved of the consequences of his own negligence by reason of inadvertence, inattention or misjudgment. Once it is accepted, as her Honour accepted, that Mr Burnett knew of the danger created by the missing steel supports, he can only avoid the consequences of failing to utilise that knowledge if he was otherwise distracted by long hours and fatigue or by failing to give due regard to what has been referred to as "the slackening of attention which naturally comes from constant repetition of the same operation, to the noise and confusion in which the man works, to his pre-occupation in what he is actually doing at the cost perhaps of some inattention to his own safety": Caswell v Powell Duffryn Associated Collieries Ltd [1940] A.C. 152 at 178-179. The absence of cues to remind Mr Burnett of the danger would be relevant to the assessment of the extent to which, when compared with Manhattan, he contributed to his own harm, but not to the question of whether he could escape entirely the consequences of failing to take proper care for his own safety in the first place.
However, in my opinion, the relevance of the total absence of local cues physically adjacent to the unsupported boards is a powerful indicator of where the respective burdens of Manhattan's negligence and Mr Burnett's contributory negligence should lie. Mr Burnett did not do something foolhardy in the sense that he walked on the boards with a fresh and vivid memory that they were unsupported but nevertheless took the chance that it was safe to do so. Mr Burnett's own negligence was that he failed to employ his recent knowledge of the risk when he did so. His fault was that he failed to heed what he knew. Manhattan, by way of contrast, could well have refreshed his recollection or reminded him of what he knew by a warning sign or a physical barrier on the first floor. I consider that Mr Burnett negligently contributed to his own loss and damage. Compared to the negligent failings of Manhattan which have been identified by her Honour and which are not challenged in this appeal, Mr Burnett's contribution should be assessed at 20%.

Grounds 8C and 8D

Manhattan was the builder and occupier of the site. Griswold's was Mr Burnett's employer, even though he was the sole director of that company. Her Honour found that both were liable in negligence for Mr Burnett's loss and damage. She reasoned as follows: "[190] The harm Mr Burnett suffered materialised because of the failures of both Manhattan and Griswold's, each having contributed to what caused the very serious injuries which he suffered. They both failed to deal with the serious risk of injury to which his work exposed him, despite both being aware of the defective state of the void protection and the risk to which the work he was given to do in its vicinity exposed him. In both their cases, their negligence was a necessary condition of the harm which he suffered as a result. [191] Manhattan had control of this site and the work it had done there, including in the vicinity of the void. Given the state of the staircase and the ladder and what it engaged Mr Burnett to do in relation to the first floor bathroom at a time when the site was unsafe, exposing him to a foreseeable risk of serious injury, of which it knew or ought to have known, it must also be concluded that its negligence was a necessary condition of the occurrence of the harm Mr Burnett suffered. [192] Griswold's negligence was also a necessary condition of the occurrence of that harm, given its role as his employer; what it knew or ought to have known about the unsafe state of the place Mr Burnett had to perform the work he was given to do on the day he fell; and its failure to act to deal with the obvious risk Mr Burnett himself identified that day, before he undertook that work. [193] I am satisfied on the evidence I have discussed that this is a case where it is appropriate for the scope of both Manhattan's and Griswold's liability to extend to the serious harm to which they both contributed. [194] In the result, orders must be made against both of them."
Her Honour's conclusions concerning the respective proportions in which each of Manhattan and Griswold's should contribute to Mr Burnett's damages were as follows: "Apportionment of damages for negligence [215] It follows that there must be an apportionment between Manhattan and Griswold's. [216] Contributions to a damages award by concurrent tortfeasors is an evaluative exercise: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) ALJR 492. Such a finding is not based on a question of principle of fact or law, but of proportion, balance and relative emphasis. That requires the weighing of different considerations and involves an individual choice or discretion, as to which there may well be differences of opinion by different minds. [217] Manhattan's case was that Griswold's contribution was in the order of 50% and that of Mr Burnett himself 50%. Griswold's contended that by comparison to Manhattan's breach, its failures would be found to result in liability at the lower end of the spectrum, in the order of 10% -15% and in final written submissions, 10%. Mr Burnett denied any negligence. [218] On the evidence I have explained, I am satisfied that Manhattan had the primary responsibility for the injuries which its negligence and that of Griswold's both caused. [219] That follows from its control of the site; how it came to be in the unsafe state I have explained; and how that state was maintained until after Mr Burnett fell, when it installed the temporary balustrade which the inspector saw. There was obvious risk created by the early removal of part of the void protection, in order that the staircase could be finished and even before it was, by the removal of part of the support for the remaining boards and the use which was made of the unfinished staircase, without a balustrade being installed, before Mr Burnett was given work to do in the vicinity of the unprotected void. [220] That Manhattan must make the much greater contribution to the damages to which Mr Burnett is entitled than Griswold's, given its responsibilities and failures, necessarily follows. [221] For its part, Griswold's was entitled to expect that the access Manhattan arranged to the first floor would be free of obvious danger. But when it actually became aware of such danger, when Mr Burnett ascended the stairs on the day he fell and observed the unsupported board near the stairs which were then in use, before he was given the work Mr Johnson gave him to do, it was required to act to avoid breaching its own duty. There is no suggestion, however, that like Manhattan must or ought to have been, it had earlier been aware of the dangerous condition into which the site had been put. [222] Still, Griswold's should undoubtedly not have permitted Mr Burnett to use the unprotected and unfinished stairs, or to perform the task he was given by Mr Johnson in proximity to this dangerously unprotected void, as it did. That was unarguably unsafe and risked him suffering serious injury. In all of these circumstances, given that Griswold's took no steps at all to deal with the obvious risk Mr Burnett had noticed, it must be concluded that it also substantially contributed to the materialisation of that risk. [223] In all of the circumstances I have discussed, I have concluded that Griswold's contribution must be assessed to be 20%. That reflects the respective responsibility of Manhattan and Griswold's for the consequences of the negligence which caused Mr Burnett to suffer as he did."
Manhattan contested this finding and submitted that it was not reasonably open when the following circumstances are taken into account.
There was no complexity about the task of conveying broken tiles from the upper level to the lower level of the building. Manhattan had no particular specialist knowledge, compared to Mr Burnett in his capacity as director of Griswold's, of the various methods which could be used to carry out that task, which were identified in the pleadings and the evidence as using the existing ladder, or a bucket and rope or carefully using the stairs. Griswold's as Mr Burnett's employer was in as good a position as the non-employer to identify the risk of harm and take precautions against that risk. The open void was obvious and the unsupported boards were known to Griswold's.
Installing a simple temporary handrail may have been within the provenance of the occupier builder but there is no suggestion in the evidence that such precaution would have been refused by Manhattan if requested by Griswold's. The installation immediately following the incident supports that inference.
In all the circumstances, Manhattan submitted that even if the relative causative potency of the employer and the non-employer could be characterised as equal, the more stringent non-delegable duty owed by an employer supports a finding of Griswold's greater responsibility rendering it liable to bear more than 50% of the loss on apportionment.
Mr Burnett submitted that Manhattan should bear the prime responsibility for the accident in accordance with the factual findings made by her Honour. These included that Manhattan was the occupier with control of the site and was responsible for the unsafe state of the stairway void that caused him to fall. The installation of temporary barriers or warnings was entirely within Manhattan's control and responsibility, especially considering the obvious risk that existed. Manhattan had also made continuous use of the unfinished stairway in the course of its construction of the dwelling, in contrast to Griswold's whose sole experience with the hazard was limited to the day of Mr Burnett's accident and his single observation of it when ascending the stairs on the one occasion that he did so.
Mr Burnett submitted that her Honour's approach exposes "a clear pathway of reasoning" leading to her conclusion on apportionment. He contended that a comparison between the multiple failures of Manhattan and the more limited involvement of Griswold's corresponded with and highlighted the appropriateness of her Honour's assessment.
Griswold's made submissions to a similar effect. It contended that her Honour has not been shown to have misapprehended the facts or proceeded upon a wrong principle and that her findings ought not lightly be disturbed: Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34. Kirby J said this at [119]: "The rule of restraint issue [119] The first issue to be decided concerns the rule of restraint. Three factors reinforce the need for restraint in disturbance of decisions about contributory negligence and apportionment: (1) The issue of contributory negligence is essentially a factual question, and therefore the primary judge (or jury) will have relevant advantages over an appellate court that will often be critical for the determination of the issue; (2) The apportionment legislation conferred upon the decision-maker a power to reduce the recoverable damages 'to such extent' as the court determines 'having regard to' a consideration expressed in very general language ('the claimant's share in the responsibility for the damage') that evokes the exercise of a quasi-discretionary judgment upon which different minds may readily come to different conclusions; and (3) The broad criteria by which such decisions are made at trial (including by reference to what 'the court thinks just and equitable' in the case) make it difficult, absent a demonstrated mistake of law or fact, to establish the kind of error that, alone, will authorise an appellate court to set aside the decision and any apportionment of the trial judge and to substitute a different decision or apportionment on appeal."

Contribution - consideration

Manhattan was the principal contractor and in occupation and control of the site. It was in that capacity principally responsible for construction of the residence and for the safety of all personnel engaged by it for that purpose either as its employees or as independent contractors. Manhattan was also presumably responsible for who came onto the site and for the allocation, if not the supervision, of work that had to be performed. Although it would not appear to have been a complex or complicated job, Manhattan would also presumably have been in charge of the scheduling of works and the interaction between, and programming of, various trades.
Griswold's by comparison, as far as the evidence reveals, came onto the site for the first time on the day that Mr Burnett was injured. Its knowledge and appreciation of the risk was informed by Mr Burnett's observation of the unsupported boards as he ascended the stairs. The hazardous state of the unsupported boards was only indirectly or incidentally related to the task that Mr Burnett was required to perform as opposed, for example, to some hazard that was inherent in the performance of the actual work of stripping the tiles in the bathroom. Responsibility for maintaining a safe means of access to and from the location at which Mr Burnett was required to work would in my view fall squarely upon Manhattan as the occupier of the site as opposed to Griswold's whose responsibilities were temporally and physically much more limited.
I am unable to agree that her Honour's assessment of the respective contributions is erroneous. It is evident that her Honour's detailed and careful analysis of the facts takes account of all matters that were relevant to an assessment of the respective potency of the alleged failings of Manhattan and Griswold's. Having regard to the authorities concerning the need to point to some misapprehension of the facts or the application of wrong principle before a judicial assessment of what is just and equitable as between tortfeasors will be altered, there is no demonstrated basis upon which this Court should interfere with her Honour's conclusions.

Grounds 9 and 10

Her Honour concluded that Mr Burnett had no residual earning capacity: "Mr Burnett has no future earning capacity [371] On the evidence, I am satisfied that Mr Burnett has no future earning capacity. Despite what was pursued with him in cross-examination and what he accepted, that his remaining earning capacity 'is or may be productive of financial loss', must be accepted. [372] But for the accident and his resulting injuries, Mr Burnett would have continued the work he was pursuing through Griswold's. But it is now quite unlikely that he will work again in paid employment, or that Griswold's will resume its Christmas light work. [373] What the authorities earlier referred to are concerned with is whether it can be concluded, given Mr Burnett's ongoing pain and limitations, that suitable employment is likely to be practically available to him in the future. Mr Burnett does not have the capacity to do the work he formerly did for Manhattan and Griswold's [374] Mr Burnett was a tradesman painter, but for years had pursued Griswold's business, himself undertaking maintenance work for Manhattan, as well as conducting its Christmas tree lighting business, which it had pursued by engaging a number of other workers, for part of each year. That is what he intended to continue doing, but I am satisfied, no longer has the capacity to do. [375] Mr Burnett denied having decided even before the accident not to do any further maintenance work for Manhattan. I am satisfied this evidence must also be accepted. [376] That was a considerable part of Mr Burnett's work and Griswold's business before the accident and there was nothing in the evidence consistent with him having made a decision before his fall to stop performing that work. That accords with it providing a large part of his livelihood. [377] I also accept that what he told the inspector in the hospital about not returning to such work reflected Mr Burnett's response to the medical advice he had there received soon after the fall. Namely, that the serious injuries he had suffered meant that there was a chance he would not walk again, with the result that he then believed he was a 'cripple', as he put it. [378] I am also satisfied that Mr Burnett can no longer undertake the maintenance work which he previously undertook, especially given the heavy manual labour it involved at times. Nor can he pursue the Christmas light business. Even if he did not work at height himself, that such work was sedentary, or capable of being performed only for the part-time hours that he has been found to have the capacity to work, may not be accepted. His disagreement that he could perform such work is supported by the evidence of the problems which the medication he needs to continue taking causes, including for his concentration and the fatigue which he experiences. [379] It was put to Mr Burnett that he was able to undertake property maintenance and painting work, because he could climb a ladder. Despite what the surveillance video showed, his denial must be accepted. What he did that day was precarious and patently risky, given all of his ongoing problems. That such work is not safely available to him in future, given the diminished strength of his legs, altered gait, problems with balance, pain and concentration, as was Dr Low's view, must be accepted. [380] In cross-examination, it was also put to Mr Burnett that he still had the capacity to conduct the Christmas tree light business, still having the truck and equipment he had used in that business and the ability to employ and direct others in the necessary work. He did not accept this, explaining that he now had to avoid heights and had anxiety problems when he saw others working at heights. [381] Mr Burnett also explained how he had once installed Christmas lights at his home after the accident, with the help of those who had previously worked for Griswold's, so that he did not have to work at height. He had later climbed the ladder to remove a light from a tree, at what he volunteered, was great risk. I accept that was apparent from the footage. [382] I am not satisfied that Mr Burnett has the capacity to resume operation of Griswold's lighting business, given the hours of work that would involve on site, even if only supervising others working at height. That conclusion accords with the evidence of Dr Low, which I am satisfied must be accepted. [383] As I explained, despite what was agreed in their joint report, what the video footage showed led to considerable disagreement between Dr Maxwell and Dr Giblin. Dr Low's evidence also conflicts with that of Dr Maxwell. [384] Having considered all of the evidence, I am unable to accept Dr Maxwell's opinions about what the video established about Mr Burnett's current capacity or prospects. I am satisfied that they do not accord with either logic or common sense, given the injuries Mr Burnett suffered and the point to which he has been able to recover; the physical problems he still has to contend with; the treatment he still needs to pursue; and the deterioration and need for further surgery of which he is plainly still at risk of, especially as he ages. [385] I am thus satisfied that Dr Giblin's opinions about Mr Burnett's ongoing lack of capacity must be preferred, supported as they were by the opinions of Dr Low and other experts not required for cross-examination. [386] That Mr Burnett's ongoing limitations, pain, and the fatigue which still result from his injuries when he exerts himself and his ongoing problems with concentration and what he has to pursue, in order to maintain the recovery he has achieved, results in him having no residual earning capacity, must be accepted. … Mr Burnet's capacity for other work [389] As I have explained, the experts agreed that Mr Burnett now has capacity for some sedentary work. It may thus be accepted that he still does have some working capacity, which might permit him to obtain other work, such as providing advice about home maintenance or painting on a help line, for example. [390] But the evidence does not establish that he has the necessary resulting earning capacity, that depending as it does on the evidence establishing that his working capacity is capable of being accommodated by the employment market. Nor that his working capacity will be of any use to Mr Burnett in the future, despite Professor Bright's experience that other disabled people have found employment. [391] Mr Burnett does have computer skills which he had utilised in conducting Griswold's business, using MYOB software, for example, to issue quotes and invoices. He was asked about clerical work, having undertaken a computer course since his fall, but still having not pursued any work. He had also performed clerical work in the early 1980s which did not involve the use of computers, for a short period before his apprenticeship. He did not, however, believe that he could do clerical or other sedentary work even now, despite the course he completed. [392] Nor did he believe that he could manage retail work such as at Bunnings, where he would have to walk and stand for long periods, even though he had wide experience in maintenance, construction and hardware and accepted that he could give others advice about such matters. [393] Professor Bright accepted that given his age and lack of experience in the various jobs he identified as suitable, Mr Burnett would be slightly less competitive in the market. But he considered that current extremely low levels of unemployment meant that Mr Burnett would not struggle to find work, for example, as an order clerk, the roles of which were specified in Australian standards and for which his experience with Griswold's was relevant. [394] The Professor said that assessment of Mr Burnett's disabilities and ability to perform particular work were beyond his expertise, but that this role was defined to be a sedentary one, he believed involving work on screens. He also considered that Mr Burnett was capable of dealing with customers; had routinely done so before and so was suited to dealing with people on the phone, including members of the public; and so he could also work as a call centre operator. [395] But the Professor had not placed people with Mr Burnett's disabilities into such jobs, or that of a security alarm monitor, which would require him to obtain an appropriate licence. Nor in that of a purchasing officer, gate keeper or truck despatcher, where he would potentially have to work outside in a booth or office linked to a gate. [396] The Professor accepted that injured people faced barriers to employment, but his experience was that they did routinely obtain and maintain employment, even quadriplegics and those in wheelchairs. Factors such as reliability, maturity and experience were also relevant, and he was aware that some community minded employers sought to actively assist the disabled. He also considered that Mr Burnett was capable of performing the core tasks of the jobs he identified. [397] So much may be accepted, but that is not all that must be considered and established in order for it to be concluded that Mr Burnett has the claimed capacity to perform other work. I am satisfied that this was not established."
Manhattan submitted that an allowance of 25% ought to be made to take into account Mr Burnett's residual earning capacity. Manhattan contended that her Honour's finding that he had no residual earning capacity was against the weight of evidence, in particular the expert evidence of Dr Low and Professor Bright whose views were to the contrary. In particular, Manhattan maintained that the evidence supported a finding that Mr Burnett was in fact able to undertake his pre-accident occupation of installing Christmas lights through his company Griswold's.
In this last respect, Manhattan referred to Mr Burnett's own evidence in cross-examination, in aid of the submission that any difficulties that he might face seeking employment on the open market could be avoided by a return to his pre-accident work installing Christmas tree lights with Griswold's. Mr Burnett had a demonstrated ability to carry out the supervisory nature of the tasks involved and could therefore avoid working at heights by delegating such tasks to one of Griswold's employees previously used by him to effect these installations. Mr Burnett's evidence in cross-examination on this issue included the following: "Q. Is that because you needed that number of people to do the work or is it more efficient to have more people? A. It's efficient to have more people. … Q. When you were giving directions, is it fair to describe your position as foreman and you stood back and told other people what to do? A. I was a designer of the lights, yes. … Q. I'm just suggesting that if you'd wished to continue after the accident, it was possible for you to adopt a less hands on role and in particular avoid heights? A. To avoid heights, yes. … Q. You've got 5 people on the site putting on Christmas tree lights. If you had wanted to avoid going up a ladder, you could have told other people to. A. Correct. Q. - do the work at heights couldn't you? A. Yes."
Manhattan also contended that there is no evidentiary basis for concluding that Mr Burnett's prospects of obtaining suitable work were reduced or eliminated in the sense that he would be comparatively uncompetitive with able bodied applicants for the same jobs.
Manhattan bore the onus of establishing not only that Mr Burnett had a hypothetical earning capacity but that he had an actual earning capacity: Mead v Kerney [2012] NSWCA 215; Kallouf v Middis [2008] NSWCA 61. For example, in Mead, Macfarlan JA said this: "[24] On the appeal, the appellants accepted the principle stated in Livaja to which I have referred earlier (see [18] above) that notwithstanding the plaintiff's theoretical ability to perform certain jobs, there must be a practical assessment of the likelihood of the plaintiff in fact obtaining such jobs. [25] The appellants also accepted that they bore an evidential onus concerning the issue of whether the respondent has a residual earning capacity that he is practically capable of exercising. This is the approach taken in Luntz, Assessment of Damages for Personal Injury and Death, 4th ed (2002), LexisNexis Butterworths at [1.9.20], referred to with approval by this Court in Magnou v Australian Wool Testing Authority Ltd [2007] NSWCA 357 at [20] and applied by the primary judge in this case (see [16] above). [26] The approach in Luntz was also accepted, by reference to Magnou, by McColl JA and Hall J in Kallouf v Middis [2008] NSWCA 61 at [50]. In Kallouf their Honours added: '[52] In Arthur Robinson (at 657) Barwick CJ observed that lost earning capacity "ought to be the subject of evidence and not of mere suggestion on the part of the judge or advocate", a remark interpreted by Malcolm CJ (Murray and Wheeler JJ agreeing) in Morgan v Costello [2004] WASCA 260 (at [99]) as supporting the proposition that "the defendant who contends the plaintiff has a residual earning capacity has the evidentiary burden of adducing evidence of what work the plaintiff is capable of performing and what jobs are open to a person with such capacity".' (Emphasis added). [27] Their Honours also referred (at [53]) to the observations of Glass JA in Linsell v Robson [1976] 1 NSWLR 249 concerning the defendant's need to adduce evidence 'to show what sort of employment is within the residual capacity of an injured litigant, and what sum it is likely to produce' (at 254 - 5; emphasis added)."
In the present case, Manhattan qualified Dr David Maxwell and Mr Burnett qualified Dr Peter Giblin, in each case an orthopaedic specialist, who met in conclave on 18 April 2023. Following the production of their joint report, the doctors gave concurrent evidence at the trial. Although their evidence was extensive, it is instructive to include at least the following extracts: "HER HONOUR: The first item on the agenda is the surveillance footage. You can assume, gentlemen, that your individual reports and the joint report are in evidence. As I've understood, you have each seen the surveillance footage and the question is whether having seen the surveillance footage any of your opinions have been affected. I'll call on you first, Dr Giblin. WITNESS MAXWELL: I, I considered, your Honour, that he displayed an increased range of movement and a level of physical activity which was greater than outlined when I examined him in 2021 and I considered this demonstrated a continuing improvement due to increasing his functional capacity levels, and I felt as far as physical activities that he was now capable of carrying out all domestic activities and an increased range of work activities including heavy lifting and prolonged standing and walking. HER HONOUR: Dr Giblin, I'd ask you to respond. Do you agree with that? WITNESS GIBLIN: Look, I would actually strongly disagree, your Honour. HER HONOUR: Yes, can you explain why please? WITNESS GIBLIN: Basically, this gentleman had his injury at the age of 52 and he was previously very fit and healthy, and he had a good record of physical and mental stamina to survive in the work environment that he was in. When he had his injury, it was quite extensive, involving the cervical and thoracic spine. From a mechanical standpoint, your thoracic spine is an I-beam, and it joins and provides a stable fulcrum for your lumbar spine and your cervical spine. And now his thoracic spine has been severely compromised, having two levels of fusion, as well as a decompression, and there is still some evidence of minor underlying neurological disorder affecting his left leg mainly. The, the multiple minor injuries that he had, the fractures of the lamina and the transverse processes, are really just tips of the iceberg for underlying soft tissue injuries of various, various degrees. What, what happens to a fellow from this point of time is that his physical and mental stamina is affected. It becomes lessened, and his ability to continue with exactly the same amount of activity that he had prior to the injury is lessened. And he does complain of a feeling of weakness in the evenings and the afternoons and to my mind that is quite compatible with this level of injury. From a practical standpoint in my eyes he's, he's half a man. He's good for the first half of the day and not the second half of the day. HER HONOUR: Dr Maxwell, would you like to respond? WITNESS MAXWELL: Well, look, I don't think there's any doubt that he's made a great deal of improvement. With regard to the spinal injuries, they've been stabilised. Normally once they've been stabilised they gradually, the pain that you experience initially gradually is improved. And I don't, judging by the amount of bending and twisting he was doing on the video, I don't consider he has a great deal of disability with regard to his thoracic spine, and I think that's quite evident on the video. Dr Giblin seems to be a little bit more pessimistic than he was in the conclave when he agreed with me. But with regard to affairs of daily living, he requires one hour's assistance per week, mainly for outdoor activities such as hedging and pruning. He also agreed that his walking time was one hour. He can sit for one hour and stand for up to 20 minutes. And he also agreed with regard to work capacity that he was fit for numerous activities including semi-sedentary activities without ..(not transcribable).. activities which involved heavy repetitive bending and twisting. So overall I think there has been a great deal of improvement. There is a minor residual neurological impairment which, and pain, which appears to have improved. He's no longer taking heavy opioid analgesics, and by his own admission, he has improved. HER HONOUR: All right. You've referred to the joint report and what's there agreed in relation to walking time and so on, and you say that Dr Giblin seems to be more pessimistic. From your earlier answer, I perhaps thought you were more optimistic. So my question is so you still agree with those things that you've referred to in the joint report, walking time, standing, and so on? Or is your opinion about those things altered as well, Dr Maxwell? WITNESS MAXWELL: Well, I think, I think that probably, overall I think the function demonstrated on the, on the, on the video surveillance, your Honour, was, was greater than, than he outlined. The level of disability appeared to be less. Not only did he spend quite a lot of time on his feet and did lots of activities including lifting and moving a trailer, he also climbed a ladder without assistance which was something we felt he couldn't do. He appeared to have little difficulty in bending, twisting, standing, and walking. Maybe his balance was a little bit abnormal. I thought his gate [sic, gait] had improved since I examined him in 2021 when he had a high stepping gate [sic, gait]. I felt his gate [sic, gait] was pretty well normal. And so I, I felt that there was evidence of continuing improvement in his overall function and level of disability. HER HONOUR: Thank you. What do you say, Dr Giblin? WITNESS GIBLIN: Your Honour, look, I, I still hold to the conclusions with Dr Maxwell in our conclave report, and I just make the observation that in the surveillance activity most of the physical activities of bending and pushing a shopping cart and getting in and out of a car and managing the trailer, that, by the way, the trailer was relatively small and well balanced, are all functions of his lumbar spine, and his lumbar spine wasn't injured."
It is clear that her Honour was faced with opposing views from well-regarded specialists who had access to the same information, including the surveillance material. Her Honour was not obliged to accept the evidence or opinion of one of them to the exclusion of the other in the absence of some compelling factor. I do not consider that the weight of the orthopaedic evidence necessarily demanded acceptance of Dr Maxwell over Dr Giblin as Manhattan asserts. Her Honour was also in a position to see and hear Mr Burnett over a number of days, providing an advantage that cannot and should not be lightly discounted in this Court.
Apart from this orthopaedic contest, Mr Burnett and Manhattan also respectively marshalled Dr Sean Low, an occupational physician and Professor James Bright, a psychologist specialising in vocational assessments, to give evidence before her Honour about Mr Burnett's anticipated earning capacity in the light of his disputed physical abilities. Her Honour considered their evidence at some length. With respect to Dr Low, her Honour said this: "[281] Dr Low, a consultant occupational physician had examined Mr Burnett three times, most recently this year and had also seen the footage. In arriving at his conclusions, he took account not only of the histories Mr Burnett gave and his medical records, but also his physical examinations. In cross-examination he said that he considered that his work capacity remained unchanged. [282] In his first August 2020 report, Dr Low noted Mr Burnett then reported problems with his balance; that his walking tolerance was a kilometre and his ability to sit and stand only 30 minutes. He also reported having difficulty with sleep, memory and concentration and his gait not being normal. [283] Dr Low then considered Mr Burnett was unlikely to return to work in the foreseeable future. He could not perform work on a construction site, which would be physically demanding, requiring him to work on uneven ground and remain on his feet throughout the day, adopting a range of positions which he could not tolerate. This would give rise to safety risks to himself and others, given his problems with balance and fatigue. [284] In his September 2021 report, Dr Low noted the treatment and physical rehabilitation Mr Burnett had pursued, but that he had been unable to return to employment. Mr Burnett then reported ongoing pain and stiffness, but some improvement in his symptoms and being able to walk a greater distance with the aid of walking sticks, but being unable to run, squat and having difficulty negotiating stairs, as well as ongoing sleep disruption, memory, concentration and fatigue. [285] Dr Low concluded that Mr Burnett's condition remained essentially unchanged, including his capacity for work, which he was unlikely to undertake in the foreseeable future. [286] In his June 2022 report, Dr Low did not consider that Mr Burnett had recovered sufficiently to perform part-time work of 20 hours per week over four days as Professor Bright had suggested, given his ongoing symptoms and the risks which they presented. He also did not consider the various roles Professor Bright had identified to be suitable for Mr Burnett, given the walking, standing and lifting they would variously require. Sedentary work in a call centre did not accord with his occupational history and would require consideration of how he could commute, as well as whether provision could be made for his need for postural adjustments. [287] In his April 2023 report, Dr Low noted the change in pain medication which had been supervised and the other treatment Mr Burnett was still pursuing. Mr Burnett then reported more manageable pain, but ongoing problems with stiffness and range of motion, as well as with a dead arm. His walking distance had increased, but he still used sticks for longer distances, was still unable to jog or run and still had difficulty negotiating stairs and inclines, as well as sleep disruption, and memory and concentration problems. [288] Dr Low then considered Mr Burnett's inability to work remained unchanged, especially given that it had now been in excess of four years since he had worked. [289] Dr Low agreed that physically Mr Burnett then had a capacity for part-time sedentary type work, but considered that his educational and vocational history did not lend itself to such work and that his continuing problems with sleep, fatigue and concentration, made a return to work unlikely. He remained physically disabled and relied on the assistance of external providers and his wife for normal activities of daily living. [290] In cross-examination about what his reports were intended to convey, Dr Low agreed that in part they depended on what Mr Burnett had told him; that his view that he would have difficulty lifting heavy weights referred to 20 kilogram weights; and that he also considered that he could not perform repetitive manual lifts of lesser weights. [291] Dr Low also did not consider that Mr Burnett could now undertake Griswold's former Christmas light business, given that it involved repetitive and perhaps heavy lifting, pulling, working at height on ladders and with trees, given his ongoing lower leg symptoms. He still had reduced power and restrictions in his range of motion, as well as a chronic back condition, which gave rise to safety risks in performing such work. He would also have difficulty maintaining prolonged postural positions, standing for long periods, or bending down, including to paint or move paint tins. [292] On the video footage, Dr Low had seen Mr Burnett help manoeuvre a trailer, climb a ladder and remove a light, which involved bending. But he said that he was not aware of the degree of discomfort involved and considered those activities to be contrary to medical advice, given Mr Burnett's underlying injuries and the risk which what he had done posed of aggravating them. He also considered that Mr Burnett performing such tasks in full-time employment would involve such risk, given his assessment that he was only capable of some part-time sedentary work. [293] Dr Low also considered that handyman type work carried such risks, given assessments he had undertaken of what such work involved. He agreed that Mr Burnett could use a screwdriver and undertake light gardening work for short periods."
Her Honor considered Professor Bright's evidence in the following paragraphs; "[294] Professor Bright provided a vocational assessment report in which he examined Mr Burnett's personal, educational and work history before the accident, as well as his ongoing medical issues and the treatments he was pursuing. He undertook a jobs skills analysis and testing which established that his reading was sufficient for him to undertake clerical tasks, consistent with the computer and office administration course he had undertaken in 2021. [295] Mr Burnett's work constraints were identified to be pain in his legs, difficulty controlling his body temperature and the regular treatment he was pursuing. The adjustment disorder which he had been suffering had been diagnosed in 2020 to be in remission and he was no longer reporting continuing disabilities from psychiatric symptoms. He had also been assessed by Dr Dalton, a rehabilitation specialist, in August 2021 to have a capacity for part-time sedentary work, but it was then noted that he had no motivation to return to work other than his previous occupation. [296] Professor Bright considered that his most suitable vocational options were likely to be less physically demanding than his pre-injury role and that he would most likely be suited to working part-time, possibly up to 20 hours per week over four days for five hours, but that depended on medical opinion. Positions identified for which Mr Burnett had transferable skills and had regard to his psychological perspective, were order clerk; call centre operator helping with renovations such as that run by the Dulux company; security alarm monitor; purchasing officer; gatekeeper; and truck despatcher."
It is reasonably clear that the evidence about Mr Burnett's earning capacity, both with respect to his physical abilities to perform suitable work having regard to his injuries in the first place and the likelihood that he could secure suitable work when in competition with able bodied competitors in the second place was not all one way. Manhattan's ninth ground of appeal proceeds on the basis that her Honour's conclusion that Mr Burnett had no capacity for work was erroneous to the extent that it failed properly or adequately to take account of a preponderance of evidence to the contrary.
Having regard to the evidence and in the light of her Honour's detailed analysis, I am unable to accept that Manhattan has established the proposition for which it contends. Her Honour's task was not concerned with a simple binary choice between the evidence of Professor Bright on the one hand and the evidence of Dr Low on the other. For example, the matters upon which Manhattan particularly sought to rely in this regard were not in my opinion particularly compelling. They were that Dr Low: 1. did not ask Mr Burnett what was involved in the job of installing Christmas tree lights; 2. accepted that Mr Burnett would be required to bend forward and push when manoeuvring a trailer; 3. does not suggest that being active would impair Mr Burnett's recovery; 4. agreed that no pain avoidance behaviour was apparent from the surveillance video; and 5. said that Mr Burnett was fit for some part-time sedentary work.
In addition, Mr Burnett conceded that he could do light gardening work using a whipper snipper, could unhitch and manoeuvre a trailer, climb a ladder, remove Christmas tree lights and that his anxiety was not enough to overcome his desire to place Christmas decorations on his roof.
Moreover, Professor Bright's evidence indicated that in his opinion, Mr Burnett would not struggle with, and would be able to get, a job as an order clerk, with the requirements of which job Professor Bright was experienced. Professor Bright also considered that it was not necessarily the case that an injured person will fail to secure or retain employment but that such a person may well thrive. He thought that Mr Burnett was capable of performing a range of jobs that he listed.

Earning capacity - consideration

I do not accept that "the weight of evidence" commands a conclusion that Mr Burnett retained a residual earning capacity. There is certainly evidence that, despite his injuries, Mr Burnett could perform a range of physical tasks included among the duties which he would be required to perform in certain occupations. However, a miscellaneous collocation of activities such as climbing a ladder, hitching a trailer or using a whipper snipper do not inevitably translate into an exploitable capacity to secure income producing employment in an open labour market in competition with able bodied workers. The very fact that experts were in disagreement about both the extent of Mr Burnett's physical limitations and the prospect that he could secure employment notwithstanding does not to my mind indicate that the weight of relevant evidence produces only one conclusion. Her Honour's advantage in seeing and hearing Mr Burnett is again important in this context.
Her Honour's conclusions at [400] - [407] are supported by the evidence, were open to her in the circumstances and bear repeating: "[400] Even accepting that the identified occupations on which Manhattan relied are now theoretically available to Mr Burnett, that does not establish that there is a practical likelihood of him obtaining employment in such sedentary occupations. Even if that materialised, it could only be part-time work for limited hours per day. [401] That, however, would necessitate Mr Burnett finding an employer who is not only prepared to support the ongoing consequences of the pain and limitations which he continues to suffer, but also his need to continue pursuing the activities and treatment which have enabled him to recover to the point he has, so that he can maintain that recovery. If he could not, his capacity for even such limited sedentary work would diminish. [402] I am thus not satisfied that the evidence permits the conclusion that he could succeed in finding such an employer, or that Manhattan has met the onus which falls upon it in respect of these matters. [403] To the contrary in this case, like in Sorbello, it must be accepted that the evidence does not establish that Mr Burnett has any real prospect of exploiting his limited capacity to perform some part-time work in a sedentary position. [404] That would require evidence that Mr Burnett would be able to find an employer prepared to accommodate his considerable ongoing physical and other limitations and the treatment which they continue to necessitate, as well as his need to pursue the treatments which help him maintain the physical improvement he has achieved. [405] Without this, his physical limitations will inevitably increase as his physical condition and resulting pain deteriorate, with the result that his ability to work and retain employment will also necessarily decrease, reflecting his reduced capacity. [406] That even some quadriplegics have been able to find suitable employment, as was Professor Bright's experience, is simply incapable of satisfying the evidentiary onus falling on Manhattan which is discussed in the authorities, in respect of Mr Burnett's actual likelihood of being able to exploit his residual earning capacity. [407] It follows that he has established a claimed future economic loss. I am satisfied that it must thus be calculated on the same basis as his past economic loss."
I do not consider that her Honour's conclusion about Mr Burnett's earning capacity is erroneous.

GROUNDs 11, 12 and 13

Manhattan contends first that in awarding damages for Mr Burnett's future care, her Honour included an element for commercial assistance when the evidence was that Mr Burnett was not inclined to engage commercial providers.
Mr Burnett's 20 January 2023 evidentiary statement dealt with his claim for domestic assistance in terms that included the following: "16 [My] house has four bedrooms two bathrooms, two living areas, a dining room, a double garage, a pool and a lawn. The majority of the living areas are tiled. 17 I had previously been using the services of a cleaner who had been organised and paid for by the insurer… 18 The cleaning was supposed to be for 8 hours per week, but I found she was performing about 2. 19 I now rely on my wife for domestic assistance, and she is doing the cleaning and does a much better job. 20 My wife performs approximately 3 hours per day of cleaning in the form of mopping, vacuuming, washing, drying and folding laundry, washing the dishes and general dusting and cleaning. I still perform a small amount of work. 21 [My wife] also spends 2 hours per day cooking. 22 [My wife] does the lawn mowing and some light gardening work. She spends around 4 hours per week doing this. I sometimes push the mower around but doing so leads to an increase in my pain and increases the restriction of movement in my legs."
Mr Burnett adhered to this evidence in cross-examination.
Mr Burnett's evidence about commercial help was limited to the following question and answer in cross-examination: "Q. In fact, now you don't engage any commercial help, do you? A. No."
Her Honour dealt with Mr Burnett's claim for damages for future care as follows: "Future care [451] Mr Burnett calculated this to be $396,002 to $640,592, with the final sum depending on whether the care was gratuitous or commercial. On his approach, $500,000 properly balanced the possibilities which had to be considered. Manhattan rejected this, it calculating the appropriate figure only to be $21,986. The parties' cases [452] Mr Burnett's case was that while he was presently receiving the care he still needed on a gratuitous basis from his wife, given that his need for care will last over his lifetime, account also had to be taken of the possibility that he may in future require commercial care, as he had previously. For example, in the event of the breakdown of his marriage or his wife's death. [453] Thus, the proposed compromised figure was pursued as being appropriate in all his circumstances, given all the time that he might still live and approaching the possibilities which arose for consideration in accordance with Malec v Hutton. [454] Manhattan contended that such a sum could not be awarded, given Mr Burnett's concession in cross-examination that had he met his wife before his accident, she would still be doing the same amount of housework and that there was no evidence that he would engage commercial assistance if he had the means to do so. [455] Further, while Dr Giblin and Dr Maxwell had agreed that Mr Burnett required an hour of commercial assistance per week, evidence to which no objection was made, such evidence was 'not the kind of "expertise" which is normally attributed to orthopaedic surgeons' and so was clearly inadmissible: Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443 at [93]."
Her Honour concluded that she should take account of the possibility that circumstances might change in the future with the result that domestic assistance from a commercial provider might be required: Miller v Galderisi [2009] NSWCA 353 at [19]. Manhattan contended that there is no evidence that Mr Burnett would engage commercial assistance in the future so that even if the possibility is "not entirely fanciful, … the chance of it occurring is slight": Miller at [23].
In my opinion, Manhattan's emphasis on what it perceives to be, and what it characterises as, Mr Burnett's apparently entrenched disinclination to employ commercial assistance providers is misplaced. At the time of giving his evidence, Mr Burnett's wife was willing and able to perform the tasks that he described, and his preference was that she should do so. However, I do not understand his evidence either to infer or to insist that the prospect of commercial assistance would not or could never arise as a possibility in the future when his wife's ability or agreement to continue with the work changed. Indeed, in accordance with authority, her Honour took account of that prospect, including that Mr Burnett and his wife may cease to be married. Her Honour described the possibilities of a change in the current domestic arrangements and the availability of assistance as neither fanciful nor slight.
Mr Burnett's calculations with respect to the cost of future domestic assistance were particularised in MFI 12 as follows: "7 Future care (i) If gratuitous: 17.5 hours per week x $34 per hour 17.5 x $34 x 783 x 0.85 = $396,002 (ii) If commercial: 17.5 hours per week x $55 per hour 17.5 x $55 x 783 x 0.85 = $640,592"
Manhattan submitted that in awarding $390,000 for future domestic assistance, it was not possible to determine how much of the award was based on the need for commercial assistance or indeed the basis for the award, save that it is at the low end of Mr Burnett's claimed amount. Manhattan therefore submitted that the award of $390,000 should be reduced by 20% to "ameliorate this error alone", thus reducing the award to $312,000. That submission appears to be a reference to [465] of her Honour's judgment which is reproduced later in these reasons.
In this Court, Mr Sexton of senior counsel for Manhattan made the following oral submission: "The basis for the $390,000, apart from it just being a figure which discounts various things, hasn't been identified. There was no evidence about intention to engage commercial assistance, and there was no apparent taking into account of the evidence about the assistance, which is now being provided by Mr Burnett's wife, having been provided anyway, as indication any additional care being provided following the accident to that which would have been provided before the accident. In the absence of that apparently being taken into account, and in the absence of any other dissection of the $390,000, it appears that the primary judge failed to take that into account, and there needs to be a further discount for that factor when it comes to assessing future domestic assistance."
Manhattan submitted that, but for his injuries, the gratuitous assistance being claimed by Mr Burnett would have been provided to him in any event by his wife so that the services were not therefore being provided as the result of any need arising from his injuries. On this basis, Manhattan submitted that the whole award for future domestic assistance cannot be sustained. Manhattan (presumably) relied upon s 15(2) of the Civil Liability Act 2002, which provides as follows: (2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that-- (a) there is (or was) a reasonable need for the services to be provided, and (b) the need has arisen (or arose) solely because of the injury to which the damages relate, and (c) the services would not be (or would not have been) provided to the claimant but for the injury.
It should be noted that Mr Burnett married his current wife after the breakdown of his first marriage, some months after his fall. The following evidence that he gave, and which becomes important in the present context, must be understood having regard to that fact: "Q. I just suggest to you that had you met your wife before the accident she would still do [sic, have done] this amount of housework? A. Well I was married before the accident. Q. I know, but ignoring, it's just a hypothetical. A. Yeah. Q. Had you met her before the accident she would still do [sic, have done] this same amount of housework, wouldn't she? A. Yes."
As her Honour observed at [445], Manhattan relied upon this exchange to submit that consideration would have to be given to what domestic assistance Mr Burnett's wife, Ms Sukwong, would have provided but for his accident.
Having regard to this evidence, her Honour came to the following conclusions at [448]-[449]: "[448] The evidence certainly establishes that had Mr Burnett not remarried as he did, he would have had to pursue paid care, given his ongoing needs. But his evidence that if he had not been injured, Ms Sukwong would still have undertaken domestic tasks which she took on must also be taken into account, given the requirements of s 15(2)(b)." [sic, s 15(2)(c)]. [449] That must have the result that the order Mr Burnett sought cannot be made in the terms sought, he not having met the onus which that provision imposes upon him. In the result, the damages awarded cannot comprehend that aspect of his claim."
Mr Burnett's cross-appeal challenges her Honour's finding at [449] as follows: GROUND 2 - That the trial judge erred in finding that the domestic assistance which the first respondent's wife provides him would be provided even if he had not been injured in the fall.
In support of this cross-appeal ground, Mr Burnett submitted that the words "if he had not been injured" do not appear anywhere in the question about what housework Mr Burnett's wife would have done but for the accident and he was not asked a question in the terms summarised by her Honour at [448].
For completeness I note that Manhattan's written response to ground 2 of Mr Burnett's cross-appeal was in these terms: "This ground appears to be directly contradictory to ground 12 of the amended notice of appeal in that [Manhattan] contends that the primary judge did not take into account that the assistance provided by the wife would have been at the same level but for the accident. The reference to the reasons for the primary judge's decision upon which [Mr Burnett] relies in paragraphs Red 105 [447]-[449] are references to past care. [Mr Burnett's] point appears to be that because the question asked in cross-examination at Black 40V did not make reference to Mr Burnett being uninjured, that such was not implied by the words 'before the accident'. However, Mr Burnett's evidence was that he met his second wife before the accident, she would then have done the same amount of housework as she was doing after the accident and thus establishes the evidential basis for the primary judge to make the findings that she did in respect of past care and indeed to make similar findings in respect of future care."
I take that submission to be a reference to her Honour's conclusion in [449] that, taking account of what I have assumed was intended by her Honour to be a reference to s 15(2)(c), damages sought by Mr Burnett for past domestic assistance "cannot be made in the terms sought". Manhattan specifically emphasised that her Honour concluded that Mr Burnett had not satisfied the onus he bore to establish that the services his wife provided in the past would not be (or would not have been) provided to him but for the injury.
The position with respect to future domestic assistance is different. Paragraph [459] appears in that section of her Honour's judgment headed "There must be damages for future care". The prospect that Mr Burnett's wife may be unable or unwilling to care for him in the future, was specifically adverted to by her Honour in that paragraph: "[459] In this case, Mr Burnett was aged 52 at the time of the accident and now has a life expectancy of some 27 years; he had no relevant pre-existing ill health which needs to be considered; it was the accident alone which gave rise to his ongoing need for care, now at the level which is being provided by his wife; there is no suggestion that such assistance would be provided gratuitously by anyone else if her assistance ceased; and there is a real possibility that she will not always be willing or able to continue providing that care in future."
Her Honour was not satisfied that Mr Burnett had overcome s 15(2)(c) with respect to past domestic assistance. However, informed by the uncertainties of predicting what might occur, her Honour took a different approach concerning whether Mr Burnett had satisfied his s 15(2)(c) onus for the future. She said this after referring to Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 in the previous paragraph: "[462] I am not persuaded that the possibility that Ms Sukwong will not continue providing the care Mr Burnett requires in future is so low as to not require any damages being awarded to him on this account. That is because the possibilities which arise for consideration are not fanciful, or even slight. For instance, there are undoubtedly a high number of marriages nowadays which break down and end in divorce. I consider that is a matter of which judicial notice must sensibly be taken."
Her Honour's conclusion with respect to future domestic assistance was as follows: "[465] In the result, while I am satisfied that damages for future care must be awarded, I am not satisfied that they can be assessed to be $500,000. I have concluded that the damages must be $390,000, having taken into account what has been paid for past care, the evidence of what commercial care now costs, Mr Burnett's ongoing care needs, which are likely to continue, as well as the other considerations earlier mentioned."
At least for the purposes of these grounds of appeal, Manhattan does not take issue with the claim for 17.5 hours of assistance or the rates of $34 or $55 respectively. That being so, her Honour's conclusion that Mr Burnett should receive $390,000 means that he was awarded approximately 61% of his total claim for future domestic assistance for the whole period at commercial rates. Her Honour's assessment in terms took account of relevant future possibilities so that the sum of $390,000 was well within an acceptable range having regard to the evidence and the uncertainties. It is correct to say that her Honour's calculations in arriving at the sum of $390,000 are not provided. However, it is reasonably apparent that in awarding damages for future domestic assistance, her Honour concluded that commercial rates should apply inasmuch as any domestic assistance provided by Mr Burnett's wife in the future would not be compensable by reason of s 15(2)(c).
Accordingly, Ground 11 should be rejected as her Honour's conclusions proceed upon the basis that if gratuitous assistance was not available, Mr Burnett would be entitled to and would arrange commercial domestic assistance. Ground 12 should be rejected because her Honour's award implicitly contains no amount for gratuitous attendant care services: her Honour's reference at [465] to "the evidence of what commercial care now costs" makes this plain. Moreover, the absence of any reference in that paragraph to the cost of gratuitous services indicates that her Honour did not fail to take into account her conclusion that Mr Burnett had failed to satisfy the s 15(2)(c) onus of establishing that the assistance provided by Mr Burnett's wife would only have been available if the accident had intervened.
Manhattan also contended that her Honour erred by failing to reduce the award so as to take into account the need for such assistance caused by the frailties of old age: see Avopiling Limited v Bosevski [2018] NSWCA 146 at [135]; Metaxoulis v McDonalds Australia Limited [2015] NSWCA 95 at [81]. In Metaxoulis, the plaintiff had an existing injury. Mr Burnett does not.
The calculation of damages for future domestic assistance specifically incorporated a discount of 15% for vicissitudes. In the absence of any evidence pointing to the likelihood of an accelerated or extended period of old age, it seems to me that the discount allowed was sufficient in this case to account for it and that no special or other discount was necessary.

Ground 14 and 15

Although ground 14 is expressed in general terms, it was limited in this Court to a complaint about airfares. Part of Mr Burnett's claim for out of pocket expenses included a claim for airfares to Thailand to accompany his wife who needed to visit her mother who lived there. Mr Burnett's evidence was that in 2022 he travelled from Sydney to Bangkok in economy class. Her Honour accepted his calculations in relations to his claim for airfares, including a claim to be upgraded to business class, and awarded the total sum of $162,394. It is this amount that is challenged under this ground of appeal.
Manhattan submitted that this claim fails at the threshold, whether for airfares in general or for business class tickets in particular. This is for the reason that there is no evidence to support the need for Mr Burnett to accompany his wife on her trips to Thailand, nor of the cost of upgrades on any established medical basis if such a need were established.
Mr Burnett contended that his need for travel to Thailand was associated with the benefit of its warmer climate. The workers compensation insurer had previously paid for such expenses upon the basis that they were reasonably necessary.
I am unable to accept that Mr Burnett has established that any loss or damage sustained by him was caused by Manhattan or Griswold's sounding in an entitlement to damages in the form of the cost of airfares to Thailand or indeed anywhere at all. Mr Burnett's travel to Thailand was a matter of choice: it was not compelled by the injuries that he has sustained. In short, there is no demonstrated or demonstrable causal connection between anything that happened to Mr Burnett as the result of his accident and the need for him to travel anywhere. Her Honour's award for the cost of airfares was not supported by the evidence and is erroneous.
Manhattan also made a somewhat curious submission that "in any event, all out of pocket expenses should be reduced by a percentage to take into account the vicissitudes of life greater than the usual 15%". Avopiling at [167] was cited as support for that submission. I am unable to see how that citation assists Manhattan. The so-called greater than usual vicissitudes of life are not identified.
Somewhat more confusing is the submission that "such a reduction in these circumstances would be 40% having regard to the primary cause of the need is to visit the elderly mother of Mr Burnett's wife". In light of the view I have formed, that Mr Burnett is not entitled to any award of damages for the cost of airfares, I will assume that this submission need be taken no further.

The cross-appeal

Mr Burnett's amended notice of cross-appeal contained three grounds, of which only the following were ultimately pressed: 1 The trial judge's award of non-economic loss failed to take account of the near catastrophic nature of [Mr Burnett's] injuries and disabilities. 2 That the trial judge erred in finding that the domestic assistance which the first respondent's wife provides him would be provided even if he had not been injured in the fall.

Ground 1

As the result of his fall, Mr Burnett sustained the following injuries: 1. a traumatic spinal cord injury requiring multilevel thoracolumbar decompression and posterior pedicle screw fixation from T3 to T7 and T10 to L2; 2. poly-trauma secondary to the fall including a comminuted fracture of the C7 lamiae requiring immobilisation with a cervical collar for two months, chest wall and rib fractures and an undisplaced fracture of the lateral end of the right clavicle; 3. traumatic brain injury with 21 days of post traumatic amnesia; and 4. severe sleep apnoea in the context of persistent bilateral lung-base collapse and aspirational pneumonia.
Her Honour assessed Mr Burnett's non-economic loss to be 45% of a most extreme case. Her Honour's reasons appear at [318]-[327] as follows: "Non-economic loss must be assessed to be 45% [318] On all this evidence, it must be accepted that the very considerable pain and suffering which began with Mr Burnett's fall, that bringing his then successful working life to an end, still continues albeit, fortunately, now to a much lesser degree. [319] Despite that improvement, there can be no doubt that Mr Burnett's non-economic loss is substantial, given the ongoing impact of all of his injuries, not only for his working life, but his life as a whole. [320] The consequences of Mr Burnett's fall included the loss of his former healthy active life and the diminished capacity and the ongoing pain and other problems with his memory and concentration which he now has to live with. He is also no longer able to pursue activities such as the running and surfing he earlier enjoyed. Because of his limitations he has also sold his fishing boat and since the accident has gone deep sea fishing only once on a friend's boat, which he found painful, that being another activity he is no longer able to enjoy as he previously did. [321] Mr Burnett can also no longer pursue Griswold's Christmas lighting business from which he not only derived income, but pleasure, as was his evidence. His resumption of decorating his own house, with the assistance he described and even at risk of injury when he used the ladder to pull a light stuck on a tree, support this. [322] On all of the evidence, I am unable to accept Dr Maxwell's view that Mr Burnett's position as he ages, will essentially not be more difficult than it would have been, had he not fallen as he did, given the extent of his recovery. [323] The extent of Mr Burnett's improvement was demonstrated by his own evidence and that of the experts, as well as by the surveillance footage and what can there be seen. Dr Giblin's evidence that ceasing to pursue the regime which brought him to that point risks deterioration even greater than that which would accompany his normal ageing, I am satisfied must be accepted as a matter of both logic and common sense given all of the evidence I have discussed. They cannot be ignored when resolving the experts' dispute I have explained. [324] I am also satisfied that Mr Burnett is now more susceptible to and at real risk of greater deterioration as he ages, than was the case before his fall, given the spinal fusions which he required as a result and the point to which he has been able to recover. On all of the evidence, I am unable to accept that an even better recovery is now likely to result. I also accept that Mr Burnett is now also at risk of requiring further surgery to his spine, a risk which did not exist before his fall. These are all matters relevant to the assessment of his non-economic loss. [325] There can also be no question that Mr Burnett will have to continue actively pursuing the regime which has enabled him to recover to the point that he has, if he is to maintain that improvement and the reduced pain treatment with which he is now able to manage. But what continues to be necessary includes taking medication which adversely affects his ability to concentrate, for example. Consistent with his positive approach, Mr Burnett did undertake a computer course after his fall, but has still not attempted any paid work, to which I will return. That accords with the ongoing problems which he has to manage, including with pain, fatigue and concentration, which he did not previously have to deal with. [326] That he is now incapable of pursuing the life which he would have continued, but for his fall, I am satisfied is well established. The limitations on which the issue over his capacity to successfully pursue even part-time sedentary work turns were simply not present before his fall, but what he must now live with. [327] Having taken all of the evidence and the parties' competing cases into account, I have thus arrived at the conclusion that Mr Burnett has suffered 45% non-economic loss."
Mr Burnett submitted that her Honour's decision to award damages for non-economic loss calculated at the rate of 45% of a most extreme case was so unreasonable and plainly unjust that it must be inferred that her Honour failed properly to exercise the discretion reposed in her in making the determination she did. Mr Burnett submitted that a person sustained the injuries and associated disabilities that he sustained, with the described consequences in terms of pain and suffering, loss of amenity of life, loss of expectation of life and disfigurement, both for the present and continuing into the future, could not reasonably be regarded as representing 45% of a most extreme case: Owners - Strata Plan 156 v Gray [2004] NSWCA 304 at [41].
Mr Burnett submitted that even though the consequences following upon his spinal cord and closed head injuries were not such as to render him catastrophically injured, they nevertheless had the effect of destroying all aspects of his quality of life to a significant degree. He retains residual symptoms of his spinal cord injury including weakness in his legs, the inability to regulate the temperature in his hands and feet, hypersensitivity, interference with sexual function, some urinary incontinence and difficulty controlling his breathing. Although some of these problems have improved over time, most of them have persisted so as significantly to interfere with Mr Burnett's ability to function.
Manhattan did not gainsay the nature or extent of Mr Burnett's injuries but contended that her Honour's findings were available on the evidence and cannot be shown to be wrong.

Non-economic loss - consideration

The assessment of non-economic loss under s 16 of the Civil Liability Act is an evaluative process: Rabay v Bristow [2005] NSWCA 199 at [62]. It involves "[q]uestions of fact and degree, and matters of opinion, impression, speculation and estimation calling for the exercise of common sense and judgment": Dell v Dalton (1991) 23 NSWLR 528 at 533. The test for review of an assessment of the severity of non-economic loss under s 16 is the "deferential standard" stated in House v The King (1936) 55 CLR 499; [1936] HCA 40: White v Redding (2019) 99 NSWLR 605; [2019] NSWCA 152.
There was no dispute that the test to be applied when considering an appeal against the judicial determination of non-economic loss upon the basis of the percentage of a most extreme case is now settled: see White v Redding at [57]-[78] per Gleeson JA and at [79]-[100] per White JA. As White JA said at [88]: "[88] With respect, it is not a sufficient justification for applying the principles in Warren v Coombes to a decision under s 16 that the decision does not involve the exercise of a discretion. Applying Singer v Berghouse, the fact that the assessment involves matters of opinion, impression, speculation and estimation would suggest that the House v The King standard of appellate review should apply. Those matters indicate that in the absence of material error in reasoning, unless an assessment is outside a reasonable range, the assessment of one judge, objectively speaking, is no better than that of another judge (Singer v Berghouse at 212)."
To similar effect at [100], his Honour reiterated that the "nature of the inquiry is such that error will only be demonstrated if there is a material error in reasoning, or the primary judge's conclusion is outside a reasonable range, which itself is a matter of impression."
In the present case, Mr Burnett did not develop any submission that specifically engages House v The King principles. For example, he does not point to the way in which it is said that her Honour has acted upon a wrong principle, or has allowed extraneous or irrelevant matters to guide or affect her, or how she has mistaken the facts, or has not taken account of some material consideration. Mr Burnett's contention is simply that her Honour's conclusion has produced a result that is unreasonable or plainly unjust.
Her Honour's conclusions and findings extracted above are not the only parts of her judgment that deal with the nature and extent of Mr Burnett's injuries and disabilities. These matters were extensively reviewed by her Honour before expressing her final views. It is evident that her Honour's consideration is detailed and measured.
One aspect of her Honour's assessment includes her impression that, notwithstanding Mr Burnett's serious traumatic injuries, he has somewhat unexpectedly made significant progress towards recovery, although obviously without achieving it completely. As unlikely as that recovery may have seemed immediately following his fall, and without diminishing the seriousness of what occurred, it was a matter that her Honour was not only entitled, but obliged, to take into account. That impression would undoubtedly have been influenced by the video evidence of Mr Burnett's unguarded activities, which one might reasonably expect reliably demonstrated at least some of his then current capabilities. Her Honour referred to these things at length.
I consider that her Honour's assessment of Mr Burnett's non-economic loss was clearly open upon the evidence. In particular, her Honour had the distinct advantage of seeing and hearing Mr Burnett over a number of days in court and in the witness box. I am unable to conclude that her Honour's findings were erroneous.
Ground 1 of Mr Burnett's cross-appeal should be dismissed

Ground 2

As discussed earlier, Mr Burnett was required to establish that the gratuitous domestic care provided to him by his wife would not have been provided if the accident had not occurred. A continuation of the provision of the same pre-accident gratuitous assistance would not attract an entitlement to damages by reason of the requirements of s 15(2)(c) of the Civil Liability Act. Her Honour concluded that Mr Burnett's wife provided assistance on a voluntary basis up until the date of her judgment, effectively in accordance with, and as a continuation of, the domestic arrangement that had been in place since before Mr Burnett was injured. In those circumstances it followed that his entitlement to damages for this past care was correspondingly limited to compensation for domestic assistance provided on a commercial basis. Her Honour's conclusions to this effect at [448] and [449] are challenged under this ground.
The evidence-in-chief given by Mr Burnett in support of his claim for domestic assistance was limited to the matters referred to at paragraphs 16 to 22 in his 20 January 2023 witness statement reproduced above at [63]. At [454] her Honour referred to Mr Burnett's "concession" in cross-examination "that had he met his wife before his accident, she would still be doing the same amount of housework". That conclusion was based upon the brief passage of cross-examination reproduced above at [73]. Mr Burnett has submitted that there was no reference anywhere in that exchange to whether or not he had been injured and that her Honour's conclusion that so much should be inferred was accordingly not available.
I do not agree with that submission. It is clear enough, even if the cross-examination could have be framed somewhat more felicitously, that Mr Burnett's attention was being drawn to the situation before the accident in comparison to the position since the accident. There was clearly no other reason in that context why the accident was raised. Nor does it appear that Mr Burnett was unaware of the relevance of the examiner's questions. No submission to that effect is made in this Court.
More significantly, it seems to me that the evidence in Mr Burnett's witness statement detailing his wife's domestic activities on his behalf was in any event neither adequate nor sufficient to satisfy his burden of establishing that her services would not have been provided to him but for his injury. He does not say so in terms. His evidence otherwise does not address that issue. To the extent, therefore, that Mr Burnett's contentions in support of this ground rely upon the perceived inadequacies of the cross-examination, they have little force.
Ground 2 of Mr Burnett's cross-appeal should be dismissed.

Orders

Manhattan has succeeded on its challenge to her Honour's conclusion with respect the Mr Burnett's contributory negligence (Ground 8A) and its challenge to her Honour's finding concerning damages for out-of-pocket expenses (airfares) (Ground 14). In all other respects the appeal has been unsuccessful. Mr Burnett has not established either ground of his cross-appeal. Formulation of the orders of this Court giving effect to my conclusions will involve some arithmetical adjustments to the orders made below. It may be that the parties will also wish to address the question of costs of the appeal.
In these circumstances, the following orders should be made: 1. Allow the appeal in part. 2. Dismiss the cross-appeal. 3. Direct the parties within seven days to file short minutes of order giving effect to these reasons, including orders for the costs of the appeal.
PRICE AJA: I agree with Harrison CJ at CL and the additional remarks of Leeming JA.

Amendments 11 September 2024 - Coversheet amended 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. Decision last updated: 11 September 2024

Statutory Duties (Contributory Negligence) Act 1945(NSW)

Manhattan Homes Pty Limited v Burnett

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