Metaxoulis v McDonald's Australia Ltd

Court of Appeal (NSW)|2015-04-01|Before: McColl JA, Basten JA, Macfarlan JA, Mr J

Solicitors: Brydens Compensation Lawyers (Appellant) Sparke Helmore Lawyers (Respondent) File Number(s): 2014/140210 Decision under appeal Court or tribunal: District Court Date of Decision: 16 April 2014 Before: Gibb DCJ File Number(s): 2013/14408

[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

McCOLL JA: I agree with Basten JA.
BASTEN JA: On 31 July 2010 a five year old boy, Dylan, managed to get himself stuck on playground equipment in a McDonald's restaurant in Castle Hill. The appellant, Konstantinos Metaxoulis, climbed over the equipment and released the boy, successfully handing him down to his parents. Immediately following that manoeuvre, the appellant slipped and fell from a height of about two metres. He suffered an aggravation of a pre-existing injury to his left wrist and a minor rib injury. He sued McDonald's in negligence.
The matter went to trial in the District Court. On 16 April 2014 the trial judge, SJ Gibb DCJ, gave judgment for the defendant, on the basis that the appellant had failed to establish any negligence on its part. Quite properly, having heard the appellant give evidence, she undertook an hypothetical quantification of his damages, which yielded an amount of $78,911.95.
The appeal now before this Court challenged the finding on liability and the assessment of damages. For reasons given below, the judgment in favour of the defendant must be set aside. The appellant's challenge to the assessment of damages should also be upheld. Both parties invited this Court to reassess damages in that event. Although the Court did not hear the appellant give evidence, that assessment should be undertaken, resting so far as possible on findings made by the trial judge with respect to the appellant's evidence, which she found in some respects to be unreliable.

(a) preliminary issues

The factual findings relevant to liability were not complex. They should have been capable of identification in simple but reasonably precise terms in the pleading or, if that failed, at the trial. Why that did not happen is obscure, but it allowed McDonald's to complain on the appeal that the appellant was seeking to run a case which he did not run at trial. That objection cannot be sustained, but to explain why that is so requires some brief analysis of the facts. It is best addressed after the factual issues have been discussed.
Secondly, there was a preliminary issue concerning the admissibility of a report prepared for the appellant by Neil D. Adams, who described himself as "an ergonomist and safety management consultant". Some passages in the report were relevant and admissible, but did not depend upon any particular expertise. This peripheral issue is also best addressed after factual findings have been discussed.

(b) the playground equipment

The structure of the playground equipment (which was situated within the restaurant building) involved large cylindrical pipes (tunnels) running between plastic towers. Young children could crawl through the tunnels from one tower to another. The pipes were effectively at two levels, although in one section a tunnel started at the lower level and ended at the higher level. The top of the upper pipe was approximately two metres above ground level. There was a tubular fence, 1.8 metres high and lacking obvious footholds, the purpose of which was to prevent any child from playing on or around the equipment, except by crawling inside the tunnels. The area in which the equipment was situated was described as the "back area". The whole structure was in bright primary colours.
In some manner, the boy Dylan managed to get on top of one of the upper tunnels, but slipped down the side so that he became stuck between the cylindrical tunnel and the outer barrier, comprised of vertical blue plastic tubes (with five tubes separated from each other by a few centimetres) with a red horizontal bar of smaller diameter (perhaps 5 cm) running through the vertical tubes near the top.
At trial there were photographs tendered, showing the layout of the playground equipment. The appellant marked on one photograph the point at which Dylan was stuck and from which the appellant released him.
Details of how Dylan got stuck were not known; precisely where he was stuck and how he was released, together with details of how the appellant came to fall after releasing him, are unimportant. There was no dispute that playing on the outside of the playground equipment was dangerous, especially for a five year old boy. Further, although there had been a plea of contributory negligence, it was not pursued at trial and hence the manner in which the appellant came to fall is not in issue. It was accepted that if Dylan's predicament resulted from negligence on the part of McDonald's, McDonald's was liable to his rescuer for the injuries he suffered.
There was a ready means of access to the back area from which it might be possible to climb onto the equipment. That access was provided by a gateway constructed (like the fixed barrier) of five vertical plastic tubes. The gate contained a safety latch of the kind used to secure swimming pool gates. The gate was the same height as the fixed barrier, namely 1.8m. There was no evidence of Dylan's height, but it was clear that the purpose of the gate, while permitting access to the back area, was to prevent access by young children, including a five year old boy. There was no evidence to suggest that, when closed, it would not have provided an effective obstacle to a five year old boy, without the assistance of an adult or an older child to open it.
Although the appellant's case was apparently run partly on the basis that Dylan might have entered the back area through some "gap" in the enclosure, there was, as the trial judge rightly found, no shred of evidence to support the existence of such a gap. Why the issue was left to the trial judge on that basis was not explained to this Court. Nevertheless, the possibility may be discarded. It was also possible that, with adult assistance, Dylan might have climbed onto the equipment without using the gate. Again, however, there was no shred of evidence to support such a possibility arising here.
The remaining possibility was that Dylan entered the back area through the gate and was in some way able to climb onto the tunnel, probably by means of the lower sloping tunnel, in the same way that the appellant was able to do so in order to reach him. In any event, there was no suggestion that this was not a plausible explanation of how he came to be where he was. This analysis was set out by Mr Adams in a purely descriptive passage in his report, in the following terms: [1] "The layout of the playground equipment is such that, providing the gate remained securely closed through which Mr Metaxoulis gained access into the area behind the equipment, it would have been very unlikely, if not impossible, for a child of the estimated age of the one who was rescued by Mr Metaxoulis to gain access onto the top of the horizontal blue pipe in the absence of assistance from another person and without using any additional equipment (eg a chair or ladder, etc). Assuming that no such assistance or equipment was available at the material time, it is in my opinion reasonable to infer that the child could only have gained access onto that pipe by climbing onto sections of the equipment that were only accessible while child-proof gate is open."
That was the thesis (indeed the sole thesis) supported by the appellant in this Court. Nor was it a matter of abstract speculation alone. The plaintiff gave evidence that that was how he obtained access to the back area and hence was able to climb onto the equipment. Having tried to obtain access by crawling into one of the tunnels, he realised that there was no means of access to the outside of the equipment, came back out and then noted the gate which he said was open and through which he passed. [2] There was no challenge to the appellant's evidence that that was how he obtained access to the back area. Nor was it put to him that the gate through which he passed was not open, but was opened by him. Rather, the cross-examiner sought to establish that he did not know that that was how Dylan got into the back area. Somewhat curiously, the cross-examination appeared to be limited to the proposition that someone else could have opened the gate whilst the appellant was seeking access internally through the tunnels. The following questions were asked by counsel for the respondent: [3] "Q. You wouldn't be able to know whether, whilst you were in that tunnel, someone came in and opened the gate, would you? A. No. Q. Indeed the child was on top of the tunnel screaming. Was the child making a noise? A. Yeah, of course. Q. So other people were responding to the child's distress? A. No. Q. How do you know that, sir, because you were in the tunnel? A. Because, sir, when I came out there wasn't anyone there. Q. So you didn't know whether anyone had gone through that gate round the back, did you? A. There wasn't anyone there. Q. But you don't know that, whether someone had come and gone around the back, do you? A. There wasn't anyone there. No-one was there. Q. You were out the front of the play equipment. You hadn't gone round the back, had you? A. Yeah. I went around the back because the gate was open. Q. Sir, when you came out of that tunnel you didn't know whether whilst you were in that tunnel someone had opened that gate, did you? A. The gate was already open."
The cross-examination continued, but was unenlightening. The questioning could have gone a little further, in the sense that there was a period between the time when Dylan entered the back area and when the appellant entered the tunnels. The appellant could say nothing about the status of the gate at that time (as he had then observed nothing), as well as being unable to say anything about the state of the gate during the 30 seconds or so he was inside the tunnel. In any event, nothing was made of that point.
More significantly, the appellant's evidence that the gate was open when he passed through it implies that the gate did not have spring loaded hinges of the kind used on swimming pool gates. In other words, having been opened it stayed open.
The factual issue as to how Dylan got to be where he was when he needed to be rescued is readily answered. It is more probable than not that he entered the back area through the open gate, because he could not have opened it by himself and there was no other means of unassisted access. The fact that the gate was open when the appellant found it renders this explanation not merely the only plausible explanation, but the probable explanation.

There appears to have been no real dispute that in providing playground equipment to customers and families, McDonald's owed a duty to take reasonable care not to provide equipment which was inherently dangerous for children of an age who were likely to use it. Duty and breach were pleaded in one paragraph of the statement of claim, to which McDonald's simply denied negligence. It may be assumed that it did not deny that it owed a duty of the kind not expressly pleaded, but set out above, there being no submission to the contrary.
There was in evidence a document headed "Restaurant Workplace Safety Audit", dated 10 June which, from internal evidence, referred to 10 June 2010. With respect to an area identified as "Playland" various items were ticked, including an item "fences and gates surrounding Playland are in good condition. Securely locked & childproof. 1.8mtr high". McDonald's called Ms Gately, the restaurant manager at Castle Hill at the time of the accident. She was shown certain photographs in evidence from which she identified "the gate to get behind the playground." [4] The examination in chief continued: "Q. Is that an area where children usually play? A. No. Q. How do you access that area? A. Through the gate. Q. Does the gate have any lock or latch on it? A. It has a pull up latch. Q. Is that the sort of latch you'd find often on swimming pool gates? A. Yes. Q. Doing the best you can, how high from floor is the operative part of the latch? A. Above my head. … Q. Why would you have to get to the back area of the playground? A. So you can clean it. Q. You see that the equipment consists of a number of tunnels, is that right, that children are meant to go through? A. Yes. Q. Have you ever found children on the outside of the structure of the playground? A. Yes. Q. How frequently would you find that, doing the best you can, per year or per month? A. Five times a year, maybe. Q. When you have found that, what if any, action do you take? A. I've asked them to get down."
This last evidence was expanded upon in cross-examination: [5] "Q. At the time of this incident in July 2010, you were aware, weren't you, that children were gaining access to the rear of this equipment? A. Yes. Q. You were also aware, wont' you, that it was dangerous for them to access that area? A. Yes. … Q. Did you see children in the unauthorised area of this equipment? A. On top of the equipment, yes. Q. Did you see children in any other place in the unauthorised area? A. No. Q. So you knew, didn't you, that children were accessing the unauthorised part of the equipment? A. Yes. Q. And as the manager, you did not do anything to prevent that, did you? A. These children were older and I wasn't sure on how they were getting to that area, no. … So taller, bigger children that could very much reach the gate, children that shouldn't probably be playing in the playground. Q. I.e., not toddlers? A. Not toddlers, no."
Ms Gately was asked whether when you opened the gate it would stay open or would close by itself and said she did not remember. [6]
From this evidence the purpose of the gate was clear, although there was no express statement that access was only for cleaning purposes. Critically, although apparently Ms Gately did not know or did not remember, the gate did not shut of its own accord, once opened. That was the uncontradicted and unchallenged evidence of the appellant. How it came to be open on the morning in question is immaterial; however, the fact that there was no sign on it prohibiting access to unauthorised persons made it more likely that adults or even taller children would open it. Once open it was foreseeable, indeed to be expected, that young children would use it to gain access to the back area of the colourful equipment. Once in that area, it was also to be expected that they would, if they could, climb onto the colourful equipment. The risk of getting stuck, or slipping off, was also readily foreseeable. The first limb of s 5B(1)(a) of the Civil Liability Act 2002 (NSW) (foreseeability) was satisfied. It should also be concluded that the risk of harm was not insignificant, satisfying s 5B(1)(b).
The next question was what a reasonable person in the position of the respondent would have done by way of precautions. So far as the analysis required by s 5B(2) is concerned, the risk of harm was certainly significant and the seriousness of the harm was moderate. There was no purpose in permitting anyone other than staff to have access to the back area. One is left with a question as to the precautions which should reasonably have been taken in diminution of the risk. The obvious precautions might have included: (a) a notice forbidding entry to unauthorised persons; (b) spring loaded hinges to ensure that the gate closed after being opened, and (c) a key lock on the latch of the kind sometimes found on swimming pool gates. There would have been no significant burden in taking any or all of these precautions. As none of these precautions was taken, it was appropriate to conclude that McDonald's was in breach of its duty of care to its customers, including young children.

(d) causation

It is possible that a notice alone would not have dissuaded whomever entered the back area before the appellant did. If that were the only precaution required, causation might not be established. However, the second precaution, of having a spring loaded hinge to close the gate, would almost certainly have avoided the entry of Dylan. There was no evidence to suggest the statistically unlikely event that Dylan ran in behind an adult or older child, who then left the area before Dylan got stuck. The possibility that an older person deliberately let Dylan in is also entirely speculative, but, because it would have to have been a stranger to Dylan, it would have been an insignificant chance if there had been a notice and a self-locking gate.
Finally, a key lock would almost certainly have prevented the accident occurring, subject to one possible exceptional circumstance, because it would have prevented even inadvertent access with the assistance of an older person. The one exception would be the situation in which a member of staff who had entered to clean the area left without locking the gate: conduct which would itself be negligent and for which McDonald's would be liable, but which would not have been possible if the gate were self-locking
There is no reason to doubt that factual causation was satisfied on the balance of probabilities, in accordance with s 5D(1)(a) of the Civil Liability Act.

(e) case not pleaded

It remains to return to the two preliminary issues. The first was that the case run by the appellant in this Court was not run at trial. That submission requires reference to the pleadings and to some of the exchanges which occurred between counsel and the Bench at trial, as well as aspects of the evidence.
The pleading left something to be desired. Duty and breach were run together and the original particulars were too vague to be helpful. It was pleaded that the plaintiff was a "good Samaritan within the meaning of the Civil Liability Act", no doubt referring to Pt 8 of the Act, which was entirely irrelevant. The pleading was amended the day before the trial to add further particulars, including the following: "g. failing to prevent unauthorised access to the area behind the equipment; h. failing to implement a suitable management system to ensure the gate, leading to the area behind the equipment, could not be opened by unauthorised persons; i. failing to implement a suitable management system to ensure the gate, leading to the area behind the equipment, was not left open; … k. failing to warn parent/carers of the dangers of children accessing the area behind the equipment …."
These particulars were adequate to cover the locking of the gate (preventing unauthorised access), a self-closing mechanism (preventing the gate being left open) and a warning notice. There were a number of argumentative exchanges between the Bench and counsel for the appellant in the course of the trial. [7] None of these exchanges demonstrated that the matters identified above were not in issue at the trial; indeed, rather the contrary.
As already noted, the question whether Dylan may have obtained access through the open gate was at the heart of a passage of cross-examination of the plaintiff set out above.

(f) Mr Adams' report

Mr Adams' report was tendered as expert opinion, admissible under s 79 of the Evidence Act 1995 (NSW). The report was "admitted provisionally" and marked as Exhibit F. [8] In effect the trial proceeded on that basis, without any final decision with respect to admissibility. There was further debate in the course of submissions which ended with counsel for the plaintiff asking if the trial judge was rejecting the report "now". [9] The judge said, "No. It'll be part of the determination." The respondent submitted that a final ruling rejecting the report was made in the course of the judgment. The passage primarily relied on was as follows: [10] "Given Dr Adams' profession of lack of 'specialist knowledge of playground equipment and usage', it is highly questionable whether anything that he has to say on the subject is admissible at all."
Following reference to the principles identified by the High Court in Dasreef Pty Ltd v Hawchar [11] the judge continued: [12] "The better view would seem to be that Dr Adams' report exceeds his expertise and is inadmissible having regard to the principles in Dasreef … and Makita (Australia) Pty Ltd v Sprowles. [13] Nonetheless, I have considered Dr Adams' report (Exhibit F) with an eye to seeing what, if anything it might add." [14] She then referred to passages in his report on a number of occasions throughout the remainder of her judgment. It is clear that the report was not rejected.
There was no notice of contention submitting that it should have been rejected. In any event, the issues in dispute could be determined without reference to it. The only reference made to the report in this judgment is to a descriptive passage set out at [13] above as a convenient method of identifying the features of the playground.

(g) conclusion on liability

It follows that there should be a finding in favour of the appellant on the question of liability.

Assessment of damages

On the basis that the respondent is liable to the appellant in damages, it is necessary to reconsider the assessment undertaken by the trial judge.

(a) non-economic loss

The trial judge assessed non-economic loss, in accordance with s 16 of the Civil Liability Act, as a proportion of a most extreme case. The proportion was assessed on the basis that he suffered "a significant aggravation of [his] left wrist, with considerable pain and consequential disability," together with an injury to his ribs and chest and shock (the last two elements being short-lived) and ongoing distress, upset and anxiety, although these factors appeared to be given little weight. The relevant proportion was fixed at 26%. [15] This resulted in an award of $32,000 by way of damages, being 8% of the prescribed maximum amount.
The appellant submitted that this gave inadequate weight to the evidence that the plaintiff would be subject to continuing pain and restrictions on the use of his left wrist for the rest of his life. The proportion of a most extreme case was therefore said to be manifestly inadequate.
It is convenient to deal with the medical evidence of the appellant's disabilities in more detail when considering economic loss. However, having regard both to the appellant's evidence which the trial judge accepted, and the medical evidence discussed below, there is no reason to interfere with the judge's assessment. Because the cap on general damages is a significant amount (in excess of $550,000) and because the table provides for a steep increase in the allowance where the proportion is between 15% and 34% of a most extreme case, small variations in the proportion can have significant financial consequences for a plaintiff. Nevertheless, the court will not intervene in the discretionary (or evaluative) judgment as to the appropriate proportion, except on the well-established grounds that the judge has in some way mistaken the facts or the legal principles to be applied or otherwise demonstrated error, which may be discernible only on the basis that the result is outside a reasonable range. [16] That cannot be said in the present case: accordingly, the calculation of non-economic loss must stand.

(b) past economic loss

To determine the damages available for past economic loss it is necessary to identify the diminution in earning capacity resulting from the accident. That requires an assessment of the appellant's pre-existing capacity, in order to make the relevant comparison. It is also necessary to identify the extent to which the diminution resulted in financial loss. Part of that calculation was straightforward: the appellant was unable to work for a period of roughly three months after the accident. The appellant was concededly entitled to damages for that period, and the actual calculation was not ultimately challenged.
The problems arose from the fact that the appellant's work as a chef involved variable hours, the variations being largely dependent on the demands of the business in which he was working and, that being the hospitality industry, the variations were partly seasonal. A second set of problems arose from the fact that the only disability which extended beyond the initial three month period involved the aggravation of an existing injury to the left wrist. The extent of the disability caused by the earlier injury, and its prognosis, were not easily assessed. The relevant medical evidence was sparse.
The trial judge also identified as a difficulty what she described as "the variable nature of the plaintiff's evidence." [17] She considered that "as a result of his fully justified sense of grievance and medication, [he was] an unreliable witness." [18] She then stated that he was "contradicted on almost everything where there is an alternative source of evidence (including by his wife)." That statement, however, involved a level of hyperbole, as will be seen.
The judge then stated that, "some of the contradictions in the evidence are of little substance, to the point that otherwise they would be entirely irrelevant." [19] By this it appears that the trial judge took all the contradictions into account, whether or not they were on matters of significance to the determination required to be made. It is not proposed to enter upon that process: the exercise required of this Court can only be undertaken on the basis of findings of the trial judge, together with such other findings and inferences as may be drawn from evidence which appears to be reliable. Where evidence was rejected by the trial judge, it will need to be disregarded. The result may not be entirely fair to the appellant, but no other course is available, both parties having invited this Court to reassess damages for itself.
The medical evidence relating to the injury to the left wrist was limited. The appellant had a motorcycle accident in Greece in May 2004 as a result of which he fractured the scaphoid bone at the base of his left wrist. An MRI scan obtained in 2014 revealed a "compression screw fixation" resulting from the operative procedure. After the accident in 2010, the appellant was referred to Dr Damian Ryan, a hand surgeon. Dr Ryan did not have available to him any radiology prior to the 2010 accident and was unable to identify with any confidence the problems resulting from the fresh fall, other than to say that there was no evidence of a recent fracture. Dr Ryan saw the appellant on three occasions in August and September 2010 and provided a report to his solicitors in January 2012. Dr Ryan indicated that while the pain could be improved by surgical treatment, this would not return the wrist to normal. He did not then recommend surgery, presumably on the basis of his assessments in 2010.
The appellant returned to see Dr Ryan in March 2014, shortly before the trial. He stated: "His symptoms are sufficiently bad now that surgical treatment would be appropriate. That would require excision of the scaphoid and mid carpal fusion. Following that surgery it would be expected that he have relief of pain, although there would be somewhat greater stiffness of the wrist. A successful operation would expect to relieve his pain long term and allow him to return to his usual work. He would however be limited in his ability to work for eight to twelve weeks."
Dr Peter Conrad, an orthopaedic surgeon, saw the appellant in May 2012. He noted a further injury to a previously fractured left wrist, but appears not to have had any radiology reports. He expressed concern (which materialised in 2014) that an MRI scan would be degraded by the plate and screws from the earlier operation. He was concerned also to identify any damage to the ligaments, although the MRI scan taken some two years later did not identify such injuries. Both Dr Ryan and Dr Conrad expressed the view that progressive arthritis would develop in the left wrist: Dr Ryan had identified "marked mid carpal arthritis" in 2010, although that presumably resulted from the earlier injury. Dr Conrad expressed the view in 2012 that his physical capability as a chef was affected and "he would only be able to do light cooking work or light catering work, in a position where he does not lift anything more than 2kgs to 5kgs with his left hand and he does not do heavy repetitive work with his left hand."
In September 2013 the appellant was seen by Dr David Maxwell, an orthopaedic surgeon, on referral from the solicitors for the respondent. He noted that the appellant was right hand dominant; was taking panadeine forte once per day for his left wrist; that vibration caused pain in his left wrist; that he had been depressed since the accident at McDonald's; that he cannot any longer undertake archery because he is unable to hold the bow while pulling back the arrow with his left hand, and continues to have pain in his left wrist. Dr Maxwell did not have radiological reports. Dr Maxwell did not consider his capacity for employment to be restricted and considered that such injuries as may have been suffered in the fall in 2010 had resolved. In a supplementary report provided the day before the trial, Dr Maxwell confirmed his view that any restriction of movement in the left wrist was due to the prior injury which was also likely to cause the onset of osteoarthritis.
Prior to the accident, the appellant was working for a business known as Chefs on the Run. The judge set out the hours he had worked at that business as recorded in the employment records for the weeks ending 9 May 2010 through to 1 August 2010, the last being the week of the accident. During two weeks in May, he worked for about eight hours per week and for one week in July, 15 hours. During a total of six weeks he worked between 21 and 25 hours, 32 hours on one occasion and 50 and 52 hours on two other occasions.
From the week ending 17 October 2010 through to Christmas, his work hours fell between 24 and 38 hours per week, except for the week before Christmas when he worked 53 hours. He ceased working with Chefs on the Run in about April 2011.
Based on this material, the judge expressly accepted the appellant's own assessment of "the fluctuating work pattern in his industry". [20] With respect to any change from pre-accident employment conditions, the judge noted (and implicitly accepted) his wife's evidence that he "complained relatively rarely before the 2010 accident after long (14 hour) shifts". [21] In fact his wife, Ms McClenaghan, identified one occasion when he had complained after working a 14 hour shift and then, when asked how often he complained, said he was "not really a complainer" except where he had been injured. After exchanges between counsel, she said that if she were to make an assumption, she would say "maybe, two to three times a year." [22]
Ms McClenaghan also gave evidence that she herself had been diagnosed with "an aggressive case of arthritis" in 2009 and that her husband had done all the work around the house that needed any heavy lifting. [23] After the accident he was unable to do anything that requires "heavy pressure from two hands." [24] She stated that he complained about being in pain on coming home from work "on a weekly basis." [25]
In cross-examination, counsel for the respondent suggested that the plaintiff's anxiety and depression may have been caused by the failure of his business to get off the ground, but Ms McClenaghan did not accept that proposition. [26] She was not challenged on her evidence that the appellant increasingly complained about pain in his wrist after the accident.
The plaintiff gave evidence that when he resumed work after the accident he was doing no more than 15 hours per week. That was true for the first two weeks, but thereafter, as was pointed out in cross-examination (and as noted above) the hours expanded significantly. The following evidence was given in chief: [27] "Q. So what sort of duties were you doing when you returned? A. Chef, cooking, preparing, cleaning, service, that was the most important. Q. And how was your wrist coping with that? A. Not well at all. I mean - Q. What was happening? A. I would have to stop quite, very often so I can go and put my hand on hot water and give it some massage and then go back, and that's without anyone knowing. It wasn't pleasant at all. Q. And were you taking any pain medication? A. I was, yeah, I was. I still. … Q. So during this time when you were working for those 15 hours or less, what was the pain like, were you in pain, when? A. I wasn't better. I can explain, it is someone put a knife and slowly turn it …. Q. When did that happen …? A. When I was trying to lift, lift something, like, a pot, 10 litres of pot which is not, is not that heavy, that was, it was like someone pulling my, my wrist apart. Yeah, that was very unusual. I've never had that before. Q. How was your grip? Had your grip changed in your left hand or was it still the same as it was before the fall? A. No, it changed completely because when I tried to lift something …."
The cross-examination of the appellant was, in parts, unedifying. It commenced with several pages of cross-examination about the hours his wife worked and her salary. An objection taken by counsel was simply sidestepped and, after obtaining acceptance as to the amount of his wife's gross income in 2012, the cross-examiner asked: [28] "Q. And part of that time that she was earning that money was when she used to do the housework before the accident. A. (No verbal reply) Q. Well, you shrug your shoulders, but can you say yes or no for the tape. A. Still I don't understand, don't be so aggressive please. CAMPBELL: Your Honour. No, no, stop, stop, stop. Your Honour - HER HONOUR: Wait a moment. It's actually a fair question. Can you please just answer the question. CAMPBELL: Your Honour, I do object because it's not actually - HER HONOUR: Q. Please. He shrugged his shoulders, he was asked to answer the question. Will you please just answer the question?"
There might be two views as to whether the question was comprehensible, let alone fair. There might be two views as to the relevance of the cross-examination, but objections were simply ignored. It is not clear whether the appellant's response to such questioning formed part of the basis of his unreliability.
The appellant was then cross-examined at some length about an accident which he said had occurred at work the day before. The purpose of the cross-examination was obscure. It included an unenlightening discussion as to whether one needed to lift the side of a pot when the meat was sticking to the bottom, the cross-examiner asked, "[c]an't you just move the meat with whatever you're stirring the pot with?" [29] The cross-examination with respect to the accident included questioning as to how the particulars in the statement of claim were formulated and as to the contents of Mr Adams' report. With respect to the medical reports, it was put to the plaintiff that he had told Dr Ryan on 20 August 2010 that he had "increased pain and weakness" in his hand following the fall. He agreed with that, but when it was explained that by "increased pain" the implication was that he had pain in his hand prior to the fall he denied it. [30] He was further cross-examined to suggest that although his evidence indicated that his symptoms were getting worse, he did not go back to see Dr Ryan until 2014 and did not complain to his general practitioner, Dr Seeto, or any other doctor in relation to his left wrist, in the whole of 2011. He disagreed with the suggestion that he did not need to seek medical treatment because the symptoms were not troubling him enough to prevent him from working and said that he had not then gone to see a doctor because he had already got medical advice and was following those suggestions. [31]
With respect to the work undertaken with Chefs on the Run during 2010, after the injury, the cross-examiner sought to establish that he had taken whatever work was offered, had never refused work because of the pain in his left wrist and had not told his employer that he could not work because of the pain. [32] He agreed that he took all the work he was offered, denied that he had not told his employer of the pain in his left wrist, but had taken the work because he needed the money. With respect to the suggestion that he had told his employer that he could not work because of the injury to his hand, the cross-examiner suggested that was "just a lie" (which was denied); the appellant then gave the first name of the manager to whom he had spoken. There was no evidence called to contradict him.
As has been noted, the appellant ceased to work with Chefs on the Run in 2011. He commenced employment at the Dural Country Club in March 2013, continuing in that employment until November, thereafter being employed as a chef by RSL Life Care from December 2013 until the date of the trial.
With respect to his employment at the Dural Country Club, the trial judge made the following assessment. [33] "Mr Metaxoulis took up a casual position with the Dural Country Club May 2013, where he said that he worked about 32 hours a week, and left in November last year, he says because was offered a promotion which involved too many hours: A. It was - it was painful when you - when I was a casual, but when they asked me to go onto full-time, well, that was excruciating pain, because it was a few hours, but then, I suddenly became a full-time job. I couldn't do it. I - I couldn't do it. The difficulty is that he worked so much more than 32 hours a week upon which he was insistent …."
In fact he was not "insistent" on that figure, when it was put to him neutrally, he said, "Yeah, sometimes. Forty sometimes. Depends if someone was sick." [34] The cross-examiner then said that his question was about evidence given the day before, and not what he now thought. He was then asked what he thought his "average hours per week were" and said "38, 40 except the last few months that we didn't have any chefs. That's why I decided to stop." [35] After a diversion while the appellant tried to explain the situation as he saw it, the cross-examination continued: "Q. The fact is that you were able to work over 40 hours a week at the Dural Country Club before October 2013, weren't you? A. Yeah. Q. You were able to do that week after week? A. Yes. Q. And in some weeks … you worked 63 hours, 63 and a half hours, didn't you? A. That was the time that I didn't have any chefs."
It was again put to him that he did whatever work was offered to him. He said it was because he had to, "in the industry." [36] The cross-examiner then asked: "Q. Yesterday you said you told them because they offered you promotion and you did not want it? A. I didn't say that. Q. No. You said that was the reason that you left, wasn't it? A. No. I did not. Q. Yesterday, sir - I'm just suggesting to you yesterday you told this Court that the reason you left is that you didn't want the promotion. A. No. Q. You disagree with that now? A. Yes."
The questioning on the previous day was not quite as the cross-examiner put it. It read as follows: [37] "Q. … Why did you stop working then? A. Because they give me more responsibilities. Q. Yes? They gave you - in what way? A. Well, I was doing my job very well through this pain, and through all this frustration and [they] give more responsibilities; they ask me to the [be?] head … with many hours and full work. Q. And did you try to do that? A. I've tried. I've tried. Q. How long did you try to do that? A. For two months. Q. Two months. Could you do it? A. No. Q. Why not? A. It was - it was getting too painful. Q. And what was painful? A. It was - it was painful when you - when I was a casual, but when they asked me to go onto full-time, well, that was excruciating pain, because it was a few hours, but then, I suddenly became a full-time job. I couldn't do it. I - I couldn't do it. Q. Now, did you tell Dural Country Club about your wrist injury? A. Told them at the end. Q. Did you tell them at the beginning? A. No. Q. Why not? A. Because I worried at the time that I would lose my time. They will not have me."
The trial judge was not correct to say that he was "insistent" that he did not work more than 32 hours per week on average; she also described him as "combative", although the passage she cited as evidence of that revealed agreement with each of the questions put to the witness. That included the suggestion that he had averaged 43 hours per week at the Dural Country Club to which he said "probably, yes." The judge then continued: [38] "It may be that the median rather than the average is appropriate. But Mr Metaxoulis worked long hours regularly at the Dural Country Club. That is a tribute to his stoicism and determination. Nonetheless, the records of the Dural Country Club …, show that Mr Metaxoulis worked long hours repeatedly, and rarely less than 37 hours a week …."
In the five months from March to August 2013, the appellant worked for more than 50 hours on only two occasions, including one of the three weeks over the whole period when he worked more than 60 hours. In October 2013 his hours ranged from 53 to 61 hours per week over the four week period. Over the eight and a half month period, he worked less than 37 hours on nine occasions, or approximately one week in four. To say that his working hours were a tribute to his "stoicism and determination" involved an implicit acceptance of the fact that he was in pain during some or all of the time. The trial judge concluded: [39] "Although the plaintiff was obviously disabled from work for a period, I do not find any general or ongoing deprivation or impairment of earning capacity."
This conclusion was reached without rejecting the evidence that: (a) he was in considerable pain from his wrist when working long hours after the accident, but only on rare occasions before the accident; (b) there was both medical evidence and evidence from his wife that his mental health had deteriorated since the accident; (c) his evidence that he left the Dural Country Club job because he was expected to take on more responsibility in a fulltime position; (d) the medical evidence that the condition in his wrist was deteriorating over time. The suggestion that he was a liar was not accepted.
While it was true that the evidence was inconclusive as to whether and to what extent he had suffered a financial loss, as a result of the 2010 accident, there was powerful evidence, not rejected, that he had suffered a diminution in earning capacity. There was at least a strong possibility that the condition was progressive. On the other hand, there was a strong possibility that he would have had osteoarthritis and increasing pain from his earlier fracture, absent the aggravation. Disentangling these causal elements was, on the evidence, largely speculative. Only Dr Maxwell saw no role for the 2010 injury in his continuing disability.
The appellant invited the Court to assess the disability by reference to a proportionate loss of earning capacity. That exercise, however, is simply not possible. In a schedule prepared after the hearing, the appellant noted that the trial judge had allowed an amount of $15,811.95 (which may be treated as $16,000) for the period from the date of the accident until 1 November 2010. The calculation of lost hours in that period was multiplied by the figure of $28 per hour net. The new schedule accepted $28 per hour as an appropriate basis for calculation. There was no recalculation undertaken for the first period and the figure proposed by the trial judge should be accepted.
The appellant then submitted that he left Chefs on the Run "because of his injury" in May 2011 and that, thereafter he was entitled to an award at the rate of $28 per hour for 25 hours per week up to the time that he went to the Dural Country Club (March 2013) subject to a set-off of actual earnings of $5,000.
There are difficulties with this approach. First, there was little exploration as to why he actually left Chefs on the Run. It was one thing to say that he was being asked to work for longer hours than he could tolerate; it was another to infer that he would not have been offered any work for shorter hours, if he had not resigned (which he did not expressly state). The evidence does not support a finding that he left Chefs on the Run "because of" the accident and injury in July 2010. Further, there is great uncertainty as to what he did during 2011. He said that he set up his own business (which may be accepted), but it is clear that the work was not time consuming: his wife said that he had nine engagements. He also indicated that he worked for others, for which he no doubt obtained some remuneration. If he had no other work during that period, it was not demonstrated that this was because of his reduced earning capacity resulting from the accident.
Similarly, although he left the Dural Country Club when there was further responsibility placed upon him in late 2013, again it was not demonstrated that his departure was a necessary consequence of the injury in 2010 and the resulting disability.
The appellant seeks to undertake calculations on the basis of "average weekly hours", because it is clear that the available work is significantly dependent upon industry demand. Further, whilst demand was reasonably low, the appellant was able to cope with the available hours. To make any precise calculation based on average hours is inappropriate in these circumstances. The best that can be done is to award a cushion which, without precise calculation, may be assessed at $25,000. He is thus entitled to an award of $31,000 for past economic loss.

Although the trial judge in carrying out her calculations [40] consistently referred to "non-economic loss", it is clear from the context that she was dealing with economic loss. For the future she awarded a sum of $20,100, based on the need for surgery (which was wholly attributed to the 2010 accident), for which she allowed a period of 15 weeks at 43 hours per week. She found that the surgery was needed sooner rather than later and would provide a solution to the appellant's pain.
This calculation was not entirely appropriate: there should have been some allowance for the possibility that the surgery would have occurred in any event as a result of the 2004 fracture of the scaphoid bone. On the other hand, the medical evidence did not affirm that the operation would provide certain and total relief from pain, but did establish that there would be a further diminution in flexibility at the wrist with a resultant limitation on use of the left hand.
There was solid evidence for the proposition that the appellant's use of his left hand was impaired, which gave rise to limitations on his abilities to carry out the full range of full-time work as a chef. His own evidence that he was unlikely to obtain employment if his disability were revealed was not challenged.
The appellant was almost 41 years of age at the date of trial. He would have had an expectancy of 26 further years in his working life. For the purposes of s 13 of the Civil Liability Act, his most likely future circumstances but for the injury would have been continued work as a chef. Any allowance for loss of future earning capacity must be reduced by a significant amount on the basis that the ability of the appellant to use his left wrist was already impaired by the previous injury, with a likelihood of osteoarthritis. The earlier injury also carried with it the possibility of the need for surgery which might further reduce flexibility and thus capacity to work as a chef. The usual 15% should also be allowed for the possibility that he would not for unrelated reasons have continued to work until 67.
No precise calculation is possible or appropriate. Taking all of the above factors into account, an allowance for future loss flowing from the diminution of earning capacity due to the 2010 accident should be allowed by way of a cushion. A reasonable estimate is $75,000.

(d) domestic care

The trial judge noted that no claim was pressed for past domestic assistance. [41] The judge also noted that the appellant is "able to attend to the majority of his domestic tasks" although he has "trouble with particular movements of his wrist, which restricts him from doing things like mowing the lawn (where the position is exacerbated by the vibration)". She also noted that the weakness in his left wrist prevented him using ladders.
It appears that the judge rejected any award for commercial assistance (the threshold for gratuitous care not being met) on the basis that it was his wife who might "like some commercial assistance", which did not satisfy the statutory test, and because surgery "will relieve Mr Metaxoulis' pain long term and allow him to return to his usual work" and will thus equally "discharge his need for care and assistance."
This reasoning cannot be accepted. The fact that there was evidence from Ms McClenaghan that she had in the past obtained commercial assistance and intended to do so in the near future supported the view that such assistance would be sought. To suggest it was merely her preference ignored the following evidence given by the plaintiff in chief: [42] "Q. Did you have a cleaner at some point? A. Yes, we have, actually, on my fall. … Q. How often did they come per week, or fortnight or month? A. She used to come every week. … Q. And how long was she there for? A. Two or three hours. … Q. Do you know why she stopped? A. Well, it couldn't go on forever. I couldn't justify this money. With me not working properly. … Q. If you had the opportunity, would you get a cleaner again? A. Definitely. Q. Do you think [your wife] can continue doing what you used to do? A. No, I don't think so. She's very tired. Working full-time and spend the whole Sunday cleaning, that's not pleasant."
Although the cross-examiner never quite came to this point, the questioning with respect to the appellant's wife's earnings and her work hours were apparently designed to imply that they could afford to employ a cleaner, but did not any longer and that the reason they did employ a cleaner for a period was because of his wife's longer work hours, not his disability. As these somewhat inconsistent implications were not expressly put to the appellant, [43] little can be made of them. The cross-examiner returned to the question of the employment of the cleaner late in the cross-examination, [44] but again to no great purpose, moving into a lengthy examination of what domestic tasks the appellant could and could not do.
In sum, it may be accepted that the appellant could not readily undertake outside tasks involving pressure with two hands, including maintenance work using a step ladder, lawn mowing and painting the house. There may also have been internal domestic cleaning tasks which were difficult. To the extent that these put strain on his left wrist, account must be taken of the present assumption that he could work a limited number of hours as a chef, to which the domestic duties would be additional. Given that his employment involved working with his hands, there is likely to be a similar level of disability with domestic tasks as with his work.
The appellant's written submission proposed an allowance of $26 per hour for two hours per week for the remainder of the appellant's life expectancy, being 44.4 years. If that calculation were accepted, there must be a significant reduction for vicissitudes, both to take account of normal ageing processes and to take account of the significant likelihood that the appellant would have required domestic assistance at an earlier stage because of his existing injury. The adjustment is appropriately undertaken by way of a proportionate reduction in accordance with the principles identified in Malec v JC Hutton Pty Ltd. [45] The appellant's calculation produced a figure of $49,111; a reduction of 40% would produce an allowance, in round terms, of $30,000. That is an appropriate figure in the circumstances.

Conclusions

The finding with respect to liability requires that both the judgment entered for the defendant at trial and the order that the plaintiff pay the defendant's costs be set aside. The trial judge allowed an amount of $11,000 in her calculation for medical expenses involved in the anticipated operation. This figure was not challenged and should therefore be included in the award. That amount, together with the amount for non-economic loss ($32,000), for past economic loss ($31,000), for future economic loss ($75,000) and for future domestic care ($30,000), give a total award of $179,000.
The Court should make the following orders: (1) Allow the appeal and set aside orders (1) and (2) made in the District Court on 16 April 2014. (2) In place of those orders: (a) give judgment for the plaintiff in an amount of $179,000, the judgment to take effect from 16 April 2014; (b) order that the defendant pay the plaintiff's costs of the proceedings in the District Court. (3) Order that the respondent pay the appellant's costs in this Court.
MACFARLAN JA: I agree with Basten JA.

Endnotes

Report, Neil Adams, 13 January 2014, par 3.2.
Tcpt, 26/03/14, pp 23-24.
Tcpt, p 67.
Tcpt, p 277-278.
Tcpt, pp 279-281.
Tcpt, p 283(12).
See tcpt, pp 113-118; pp 294-296 (in the context of Mr Adams' evidence) and at p 361 (relating to reasonable precautions, in the course of submissions).
Tcpt, p 12(25).
Tcpt, p 304(7).
Judgment at p 11 of 62.
[2011] HCA 21; 243 CLR 588 at [30]-[42].
Judgment at p 12 of 62.
[2001] NSWCA 305; 52 NSWLR 705.
The trial judge incorrectly referred to the author as "Dr Adams": his curriculum vitae did not include any such qualification.
Judgment, p 56 of 62.
See Pennington v Norris (1956) 96 CLR 10, and other authorities discussed by Ipp JA in Costa v The Public Trustee [2008] NSWCA 223 at [39]-[45].
Judgment at p 44 of 62.
Ibid.
Judgment at p 45 of 62.
Judgment at p 47 of 62.
Judgment at p 47 of 62.
Tcpt, p 230.
Tcpt, p 232(35).
Tcpt, p 233(18).
Tcpt, p 238.
Tcpt, p 251.
Tcpt, pp 31-33.
Tcpt, p 57(20)-(37).
Tcpt, p 61(50).
Tcpt, p 98.
Tcpt, p 106.
Tcpt, p 110-111.
Judgment at p 50 of 62.
Tcpt, p 162(29).
Tcpt, p 163(5).
Tcpt, pp 164-165.
Tcpt, p 46.
Judgment at p 51 of 62.
Judgment at p 52 of 62.
Judgment at p 61 of 62.
Judgment at p 59 of 62.
Tcpt, pp 52-53.
Tcpt, pp 56-57.
Tcpt, p 182.
(1990) 169 CLR 638. 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: 13 April 2015

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