Torts - Negligence - Duty of care - Reasonable foreseeability of damage - Particular cases - Duty of occupier to take reasonable care - Appellant leaving hotel premises - Absence of fence adjacent to vertical drop - Appellant fell sustaining severe injuries.

Torts - Negligence - Proof of negligence - Contributory negligence - Onus of proof - Basis of assessment where no specific finding of fact as to how injury occurred - Conflicting conjectures.

Ansett Transport Industries (Operations) Pty Ltd v Lennard Unrep, Qld CCA 16/6/98; Calder v Boyne Smelters Limited [1991] 1 Qd R 325, applied.

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; West v Government Insurance Office [1981] HCA 38; (1981) 148 CLR 62; Nesterczuk v Mortimore [1965] HCA 60; (1965) 115 CLR 140; Wyong Shire Council v Shirt (1979 - [1980] HCA 12; 1980) 146 CLR 40; Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112; Leighton Contractors Pty Ltd v Cule A67/1993, MAIB v Richards A92/1991; Haines v Harwood [1935] 1 KB 146; Dodge v Matcham A19/1988, considered.

Judgment ID Number: [1999] TASSC 6

JANE CAROLYN MURFET v AAPC AUSTRALIA PTY LTD ACN 003 993 673 (carrying on business as) NOVOTEL LAUNCESTON

5 In lieu thereof, judgment entered for plaintiff (appellant) for $194,530.80 with costs of the action to be taxed.

JANE CAROLYN MURFET v AAPC AUSTRALIA PTY LTD ACN 003 993 673 (carrying on business as) NOVOTEL LAUNCESTON

1 The appellant failed in her action for damages for personal injuries against the respondent. At about 2am on Sunday 5 June 1994, she fell from a pathway beside a semi-circular drive giving access to the main entrance to the respondent's hotel in Launceston. Adjacent to the pathway is a sloping laneway leading to a service entrance in the hotel basement. For the greater part of the circumference of the pathway, a substantial, waist high, iron railing fence provides protection to pedestrians from falling down onto the laneway. However, for some inexplicable reason, the fence at that time terminated at a point at which there is a vertical drop of 840mm (approximately 2'9") from the pathway to the sloping surface of the laneway. A short distance beyond the end of the fence there was a small tree on the outer edge of the pathway. It was at a point between the end of the fence and the tree that the appellant fell. She suffered severe injuries. About nine months after the appellant's accident, the fence was extended to the end of the pathway where it adjoins the street, thus eliminating any further risk of a similar mishap.

2 In her action, the appellant alleged that the respondent was the occupier of the hotel and that she was a visitor leaving the hotel premises when she was injured. She alleged that the respondent breached its duty of care to her by failing (inter alia) to provide a fence to obviate the risk of her falling from the footpath.

3 During the trial, evidence was given that the appellant was in company with her husband, two male friends and one female friend at the time of her accident. They had all been drinking liquor. Due to her injuries, the plaintiff had no recollection of the events or circumstances leading up to the accident. Consequently she was unable to say what caused her to fall. Her husband said he saw her stumble before falling. He said that she was walking beside their female companion at the time. Mr Murfet said that he and their two male companions were walking behind the women. This version of events was confirmed by their companions, all of whom gave evidence. One of them (Mr Stagg) said that about five metres separated the three men from the two women at the time the plaintiff fell.

4 Two police officers who attended the scene also gave evidence. Constable Moore said that at the scene he saw a man crying. This man had blood on his hands and he said several times that "it was my fault", that "they had been mucking around", and that, "she had tripped and he had fallen as well ... and landed on top of her". Constable Tyson said, "there was one gentlemen who was very upset and was saying that it was his fault that she came to be in that position". Constable Tyson said that this statement was repeated by the speaker.

5 The description given by the police officers caused the learned trial judge to infer that the individual of whom they were speaking was Mr Stagg. It has not been suggested that this was an erroneous inference and, in my opinion, it was plainly the correct conclusion from the whole of the evidence. The statements made by Mr Stagg in the presence and hearing of the police were evidence of the facts, pursuant to the Evidence Act 1910, s81L.

6 Evidence tending to confirm Mr Stagg's claim that he had been instrumental in the plaintiff's fall is also to be found in the hospital records which were apparently made at or about the time of the plaintiff's admission. According to these records, "Patient fell from a height of two feet. Landed over her right side where another person fell over her. Her head was squashed between the man and the ground". The source of this information in the records was not disclosed.

7 Whilst not being prepared to find that Mr Murfet had been deliberately untruthful, the learned trial judge took the view, correctly, in my opinion, that either the account given in evidence by Mr Murfet was correct or the fall occurred as originally described by Mr Stagg when speaking to the police. After reviewing the evidence in some detail, his Honour found it "impossible to be satisfied on the balance of probabilities which account is correct". His Honour referred to well known passages from the judgments of Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361, and later (as Chief Justice) in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 305 and reminded himself that he needed to be persuaded and could not "choose between guesses". His Honour also referred to West v Government Insurance Office [1981] HCA 38; (1981) 148 CLR 62 at 66 where Stephen, Mason, Aiken and Wilson JJ reiterated that in order to succeed, a plaintiff must establish his or her case "to the reasonable satisfaction of the judicial mind". His Honour then said, "As the plaintiff has failed to do so there must be judgment for the defendant".

8 No criticism can be made of his Honour for finding himself unable to choose between the two conflicting accounts and I am unable, for myself, to say which version of events should be preferred. The learned trial judge had the advantage of seeing and hearing the witnesses. He took into account their demeanour, but still felt unable to resolve the conflict between the two accounts.

9 For a court to remain unpersuaded of a plaintiff's case at the conclusion of a trial is by no means unusual, but to be in a state of equipoise as the result of being unable to choose between competing versions of crucial events is less common (cf Nesterczuk v Mortimore [1965] HCA 60; (1965) 115 CLR 140). However, in either circumstance the plaintiff must lose because the onus of proof has not been discharged. On the other hand, finding oneself unable to resolve contradictions or inconsistencies in the evidence does not necessarily lead to a verdict for the defendant. In my opinion, the learned trial judge failed to consider whether or not the version of events least favourable to the appellant may still have resulted in a judgment in her favour. He took the view, erroneously in my opinion, that a failure to establish that Stagg's alleged horseplay was not instrumental in causing her accident, necessarily resulted in a judgment in the respondent's favour. In my assessment, this view was far too narrow.

10 His Honour correctly acknowledged that the respondent owed a duty of care to its patrons and other invitees not to expose them to danger. He referred to the difference in height between the footpath and the laneway and the likelihood that people using the footpath may have consumed alcohol. He continued:

"In my view it was entirely foreseeable that a patron leaving the hotel late at night, whether affected by alcohol or not, should fail to appreciate that at the end of the fence line there still remained a significant drop and that he should avoid walking at the extreme edge of the footpath lest he loose his footing. Once such a patron did so, for whatever reason, his chances of recovering his balance and avoiding a fall of nearly one metre were low. No warning of the difference in the levels was given and the lighting in that area was considerably less than in the bright entrance area through which patrons leave the hotel and which they have behind them as they walk down the drive towards Cameron Street. The floodlight illuminating the facade no doubt casts some light on the area, but it is a reflected light and the retaining wall would cast a shadow over the depressed area of the service driveway. There was a simple precaution which could have been taken at little cost, namely the continuation of the fence to a point where the two surfaces became level. Had such a fence been in place, the plaintiff could not have fallen in the way her witnesses say she did. The defendant did erect an extension of the fence in this manner within about nine months of the incident. That fact is not an admission but it does demonstrate that a precaution of this kind was capable of being taken. The risk of injury was significant and it was not improbable that such a fall might occur. The expense, difficulty and inconvenience of taking alleviating action were not shown to be high and I think the reasonable inference is that they were of little moment. Guided by the dicta of Mason J in Wyong Shire Council v Shirt (1979 - [1980] HCA 12; 1980) 146 CLR 40 at 47 - 48, I have no hesitation in saying that the defendant was negligent and if the facts alleged by the plaintiff are true, its negligence was causative of her injuries."

Except for his concluding remarks, I would respectfully endorse all that his Honour said. Nonetheless, assuming, for present purposes, that Stagg's account of his involvement in the accident when talking to the police was correct, I can see no basis for exonerating the respondent from liability.

11 Factually similar cases rarely provide direct assistance in determining where fault lies in personal injury actions, but Ansett Transport Industries (Operations) Pty Ltd v Lennard, a decision of the Queensland Court of Appeal delivered on 16 June 1998 and as yet unreported, is an exception.

12 The appellant in that case operated sightseeing cruises from a jetty, one side of which was not protected by a guard rail. The respondent, a cruise passenger, was involved in boisterous behaviour with another passenger who pushed him deliberately. The respondent fell over the edge and was injured on rocks below the jetty. At the trial, the appellant raised novus actus interveniens but this was rejected by the trial judge who found for the plaintiff (respondent).

13 In the Court of Appeal, Fryberg J said at 8 - 9:

"In the present case, the appellant did not argue that it owed the plaintiff no duty and it conceded that, had the respondent been pushed accidentally rather than deliberately, there would have been no break in the chain of causation. The trial judge held that a fall from an unprotected and much used structure was foreseeable and that it did not matter whether the precise way in which the fall happened was foreseeable. Those findings were correct. Indeed, they were almost inevitable on the appellant's own approach to the matter. That approach left the appellant submitting that it made good sense to hold that where a duty to fence off a dangerous fall existed and there was a breach of that duty, a plaintiff injured in a fall resulting from a deliberate push could not recover, whereas one injured in a fall caused otherwise could do so. With the greatest of respect, such a result makes no sense at all.

Considerations of common sense and logic are appropriate in this context. In March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at pp 518 -9 Mason CJ said:-

'As a manner of both logic and common sense, it makes no sense to regard the negligence of the plaintiff or a third party as a superseding cause or novus actus interveniens, when the defendant's wrongful conduct has generated the very risk of injury resulting from the negligence of the plaintiff or a third party and that injury occurs in the ordinary course of things. In such a situation, the defendant's negligence satisfies the "but for" test, and is properly to be regarded as a cause of the consequence because there is no reason in common sense, logic or policy for refusing to so regard it.'

The reference in that passage to the injury occurring in the ordinary course of things should be understood in a qualitative, not a quantitive, sense. It is not a question of whether, if a situation is replicated a multitude of times, there will be a statistical preponderance of occasions where injury occurs. In March v E & M H Stramare Pty Ltd, the second defendant had parked his truck in the same position at night for as long as he could remember. The question is one of common experience. Common experience placed the events which happened in that case within the scope of the risk created by the first defendant. So it is in the present case. Falling from the jetty was the very thing a fence would have prevented and falls caused by third parties are no different from any other falls. Such falls were foreseeable (a factor which is relevant although not conclusive). The jetty was being used by those who had consumed alcohol at the appellant's invitation. There was, as the trial judge found, a risk of pushing. What happened to the plaintiff was in the scope of that risk."

"It may be thought unsatisfactory that the appellant's liability for the damage caused by an assault by the intervener does not depend upon the application of any precise test. One produces little advantage, as to the predictability of the result of a contest of this kind, by saying that the Court must use its commonsense, use of that faculty might suggest to some that it is rather hard on the appellant to treat it as having caused the injury consequent on the intervenor's assault, given that there was evidence that in the history of the use of the jetty no-one had ever been injured because of the absence of a guardrail. Although I have not found the question an easy one, I have concluded that the trial judge's view that the appellant should be held liable for the result of the push was right. My principal reason for doing so is that, accepting as I do that the appellant would have been liable for the consequences of an accidental fall over the unguarded side of the jetty, the happening of such a fall due to horseplay or deliberate pushing was not much less foreseeable than an accidental fall."

"Common experience teaches that people are prone to falling over. They do so for a variety of reasons, such as being nudged, jostled, pushed, tripped or simply stumbling or losing their footing. Their doing so may be traceable wholly or in part to any one or more of a number of factors. including malice, carelessness, intoxication, infirmity, sickness, or other act or omission or condition of body or mind on their own part or that of someone else. The risk is obviously greater where large moving crowds of people are involved.

Ordinarily the consequences for an individual who falls, although possibly painful, are not often serious. However, the risk of sustaining serious personal injury from a fall increases in direct proportion to the distance of the fall and the physical condition of the surface on which the individual is likely to land. Where the risk of serious injury through falling and the chances of its happening are not insubstantial, an occupier who actively promotes the use of an area by crowds of people is under an obligation to take reasonable care to guard against that risk.

Installing a simple handrail, a guard rail or a fence to reduce the risk of falling is an obvious precaution of that kind. It could have been done here at comparatively little expense. In the present instance there was a handrail along one side of the jetty but not the other. The risk that among the crowds of people using the jetty for purposes of access to and from the 'booze cruises' conducted by the defendant, one or more individuals might at some time stray over to the other and unguarded side and fall over was, it might fairly be considered, an obvious one. The distance he or she might fall, and the injuries likely to be sustained in doing so were likely to vary according to the place of the fall and the state of the tide. At the time when the applicant fell, the tide was out and the distance of his fall to the exposed rocks below was about 4 metres. As a result, it was more or less inevitable that he would be injured, as indeed he was.

The only substantial basis on which the defendant could and does seek to escape liability for the plaintiff's injury is that he was deliberately pushed off the edge of the jetty. Such an event was not such a remote possibility as to justify the conclusion that it could be disregarded in judging whether a rail or fence should be installed along the side of the jetty from which the plaintiff fell. The injury could just as readily have had its origin in conduct that was not deliberate."

14 The approach of the Court of Appeal, as illustrated by these passages, is the approach which I would adopt in the present case. The reasoning of the members of the Court appears to me to be directly applicable to the circumstances before us.

15 Mr Estcourt, of counsel for the respondent, submits that Stagg's statements to the police provide an insufficient basis for finding that any want of care by the respondent was causative of the appellant's injuries. He submitted it was consistent with those statements, particularly if taken together with the note in the hospital records, that it was not the fall on to the hard surface of the laneway which caused the appellant's injuries, but rather the impact of the very much overweight Mr Stagg falling upon her. I find this submission unconvincing.

16 As pointed out in Ansett Transport Industries (Operations) Pty Ltd v Lennard (supra), a plaintiff need not show that the precise mechanism causing the relevant injury was foreseeable (see also Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112), but, in any event, once it is accepted, as in my opinion it must be, that boisterous or rough behaviour outside the hotel may cause a patron to fall onto the laneway, it should be equally foreseeable that the person engaging in that behaviour may also fall onto the laneway causing injury either to himself or those nearby. The injury which was sustained by the appellant was within the scope of the relevant risk.

17 I am left in little doubt that the respondent's failure to provide a fence adjacent to the pathway at the point where the appellant fell was causative of the appellant's injuries.

18 Turning to the question of contributory negligence, it must be observed at the outset that the onus of establishing a failure by the appellant to take reasonable care for her own safety lies upon the respondent. In a case such as the present where an assessment of the appellant's entitlement to recover has proceeded on an assumption of facts different from those put forward in support of her claim, it may be questioned whether the same assumed facts can be utilised as a foundation for assessing contributory negligence. It cannot be claimed that either version of the accident has been proved, and if not proved, it may be asked, how can the respondent discharge its onus of proving contribution? I think that to be consistent, one must approach contributory negligence from the standpoint of the version of facts least favourable to the respondent in such circumstances. This approach seems to have been inherent in the learned trial judge's reasoning. He said this:

"The defence has raised contributory negligence on the plaintiff's part. The particulars are somewhat bland, suggesting that she failed to take reasonable care for her own safety by failing to stay on the footpath and walking off it and the adjacent embankment. Alternatively they allege that she failed to keep a proper lookout and failed to take reasonable care as to where she was walking when leaving the premises. Even if one accepts the version put forward by the plaintiff's witnesses, the evidence does not enable me to make a finding as to how precisely she came to lose her footing. One can only infer that she got to the extreme left hand side of the footpath and placed the weight of her left foot wholly or partly on the empty space alongside it causing her to lose balance and topple to the left over the embankment. That may involve a failure to keep close watch on where she was walking but in the absence of any warning of the dangerous change in levels by signs, obstacles or more direct lighting, she had no reason to appreciate the necessity of keeping clear of the edge. I would not be persuaded that the defendant had proved any degree of contributory negligence against her."

19 Approaching the matter from the same perspective as the learned trial judge, viz, on the assumption that the version of events given by the appellant's witnesses was true, I think his Honour's logic and conclusions are unassailable, but even if one should assess the situation on the basis that Stagg correctly described the relevant sequence of events to the police, my conclusions would remain the same. In that account, Stagg was very brief. He did not say that the appellant and he had "been mucking around - he said "they had been mucking around". He could have been referring to other members of the party. There is nothing in what he or anyone else said to lead affirmatively to the conclusion that the appellant had initiated or voluntarily participated in horseplay or that she was aware that there was a significant drop just beyond the end of the fence line. In my opinion, there is nothing in the evidence which would justify a finding of contributory negligence against the appellant.

20 There was also an appeal and a cross-appeal in relation to damages which were assessed at $194,530.80. It is always helpful when a trial judge assesses damages, even though he is dismissing the claim. This case is no exception. The learned trial judge's findings of fact have not been challenged. The appellant says the award of $20,000 for pain, suffering and loss of amenities is insufficient. The respondent cross-appeals, saying that the award for loss of earning capacity of $150,000 should be halved. The respondent also claims that an allowance of $15,000 in respect of the appellant's claim for loss of future superannuation benefits was excessive. For my part, I think an award of $20,000 for pain, suffering and loss of amenities was on the low side - $25,000 to $30,000 would have been closer to the mark. On the other hand, $15,000 for loss of future superannuation benefits was on the high side - $8,000 to $10,000 may have been more appropriate. I would not quibble with the assessment of $150,000 for lost earning capacity. Save in those cases where a detailed mathematical analysis reveals specific error on the part of the trial judge, thereby vitiating discrete parts of his assessment (eg, Leighton Contractors Pty Ltd v Cule A67/1993), an appellant's ability to persuade appellate judges that a figure assessed under a particular heading differs somewhat from the amount which they may have assessed had they been sitting at first instance, will not necessarily result in the trial judge's assessment being overturned, particularly where a broad brush approach has been used appropriately and a balancing of the high and low components under challenge tend to cancel each other out (see MAIB v Richards A92/1991). We do not sit to reassess damages but to correct error if error has been demonstrated.

21 In my opinion, the appeal and cross-appeal as to damages should both fail.

22 I would set aside the judgment in favour of the respondent and, in lieu, enter judgment for the appellant for $194,530.80 with costs to be taxed.

JANE CAROLYN MURFET v AAPC AUSTRALIA PTY LTD ACN 003 993 673

23 I agree with all that has been said by Wright J in regard to the question of liability including contributory negligence.

24 The appellant's case for liability was pleaded sufficiently so as to warrant a finding of negligence, whichever of the two main ways in which the accident might have occurred on the evidence might have been proved. The statement of claim simply alleged that while the appellant was walking along the footpath she fell from the embankment adjacent to it. The particulars of negligence included that the respondent:

(e) Failed to provide a fence, rail, protector or barrier adjacent to the footpath, where the level of the driveway beside it is below the level of the footpath which at night constituted a dangerous hazard to the plaintiff, the existence of which would have prevented the plaintiff from falling;

(g) Failed to extend the existing fence along the footpath beyond the place where the level of the driveway beside it is below the level of the footpath, which would have prevented the plaintiff from falling."

25 With the wisdom which comes from retrospective observation, it is not surprising however, that the learned trial judge did not address the issue whether the respondent was liable notwithstanding that the appellant's injuries may have been caused by Mr Stagg, or an unidentified man, mucking around and causing her to fall over the side to the laneway below. I say that because a perusal of the transcript reveals that counsel for the parties did not directly address that issue at the trial.

26 The defence, as pleaded, gave no inkling that high jinks would be asserted as a cause of the accident. It was only in the course of the evidence that such a suggestion arose. Counsel for the respondent at the trial did not make an opening address before calling witnesses. In his closing address he raised three possibilities open on the evidence. Firstly, that the appellant was tripped and fallen on by Mr Stagg, but for which she would not have suffered her injuries. Secondly, that she was tripped and fallen upon by an unknown person. Thirdly, that she was not tripped or fallen upon by anyone. Counsel for the respondent submitted that the first possibility was the most probable one, but he addressed no submissions to the learned judge on the question of whether the respondent should be found liable if it, or the second possibility, should find favour with his Honour. It was only with regard to the third possibility that counsel sought to argue that liability should not be found against the respondent, and in that respect counsel merely submitted that the magnitude of the risk of somebody falling over the retaining wall when properly using the pathway was not such as to render the risk of injury foreseeable.

27 Likewise with counsel for the appellant at the trial. In his closing address he suggested that the major issue in relation to liability was the allegation that Mr Stagg, or some other person, during the course of skylarking or the like, pushed the appellant over the embankment and then fell on her. "That seems to be the major thrust of the defence" he submitted, but at no point did he address the question whether, if the facts asserted by the defence were accepted by the learned judge, it would make any difference on the question of liability.

28 In those circumstances, the learned judge also failed to address that issue. His Honour found "it impossible to be satisfied on a balance of probabilities which account is correct", and on that basis concluded that "there must be judgment for the defendant" because the appellant had failed "to establish his or her case 'to the reasonable satisfaction of the judicial mind'". See West v Government Insurance Office [1981] HCA 38; (1981) 148 CLR 62 at 66. The learned judge seems to have assumed that on the basis of the facts asserted by the respondent the appellant had to lose, without considering the basis for that assumption.

29 Notwithstanding that the error may have been induced by the way in which counsel conducted the case at the trial, the basis for liability which was argued for the appellant before this Court was clearly maintainable. That the appellant was unsuccessful in establishing that her accident occurred in a certain way, did not necessarily mean that she should lose. It is not necessary that a plaintiff must show that the way in which his or her accident occurred was foreseeable. It is sufficient if the accident was of a class which was foreseeable. Haines v Harwood [1935] 1 KB 146 at 156; Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112 at 120. In this case, whichever view of the facts was taken, it is clear that the risk of injury to a hotel patron, by walking off or falling over the edge of the retaining wall, was foreseeable and ought reasonably have been prevented from occurring by the relatively easy and inexpensive measure of extending the railing fence to the end of the retaining wall.

30 The learned judge awarded $20,000 general damages for pain, suffering and loss of amenities. The appellant maintains that it was such an inadequate sum as to be erroneous. There is no point repeating the evidence and the facts which were found by the learned judge relevant to the injuries and their effects. They are set out at some length in his Honour's reasons for judgment (Murfet v AAPC Australia Pty Ltd unreported 152/1997). I tend to the view that $25,000 to $30,000 would have been a more appropriate sum, but would hesitate about concluding that the assessment of $20,000 amounted to an appealable error. However, having regard to the view I take of the award for lost earning capacity, I will bring my own assessment into account later in these reasons.

31 By the cross-appeal the respondent claims that the assessment of $150,000 for lost earning capacity, both past and future, was manifestly excessive. There was no attack made upon his Honour's findings of fact concerning the item and it is appropriate to repeat them here. The appellant was born on 26 June 1960 and had two children who were aged twelve and six at the time of the judgment on 19 December 1997. She was educated to Grade 10 level and on leaving school had secretarial training in 1997. However, she has not worked in that area of employment. Between 1977 and 1985 she worked 5½ days a week at a dress shop, first as a retail assistant and for the last three years of that period as manageress in the absence of the owners of the shop. She left that employment because of the impending birth of her first child. Two years after his birth she returned to work as a part-time sales assistant in another dress shop, working an average of twelve hours each week for three years until 1991. In 1992 her second child was born. She did not work again before the accident, which occurred on 5 June 1994, nor has she worked since. In about 1993 her husband, who was a builder by trade, began to actively explore the prospects of acquiring a business which he and the appellant could run together, she devoting more time to it as the younger child grew and attended kindergarten and subsequently school. They determined not to have any more children. There were some prospects of acquiring a newsagency business in Devonport at a price they could afford by the sale of a small farm at Perth, where the husband trained race horses. Those plans were put on hold and subsequently abandoned as a result of the appellant's accident.

32 The learned judge found that prior to the accident, the appellant's proved industriousness augured well for a gradual return to work as family commitments reduced. Her dress shop experience was likely to ensure her profitable return to the work force by about the time of the judgment in December 1997, her second child then being six years old. If she was working a thirty-eight hour week as a grade 3 employee, she would have expected to earn $347.05 per week after tax and with Saturday work a further net weekly sum of $58.16 to a total of $405.21, and superannuation benefits on retirement at age 60. It was found that if the accident had not occurred, it was unlikely that the appellant would have resumed work, even on a part-time basis, before her younger child commenced school at the beginning of 1997. It was problematical whether she would have been able to obtain work similar to her previous employment with a dress shop. There was no evidence of its availability. Her ability to work on Saturday mornings, with the sporting commitments of two young children to be satisfied, was uncertain, although her husband could be expected to shoulder most of the weight of that task.

33 His Honour thought there were many imponderables about the appellant's future capabilities. Her reluctance to undertake assessment and treatment in the three years since the accident had not made predictions as to her future any easier. However, he thought it likely that with treatment and the adoption of various techniques, some of her anxiety could be reduced, her sleep patterns improved, her confidence improved, if not restored, her hobby and sporting interests revived and her general sense of well being increased. Notwithstanding that a clinical psychologist, Mrs Noele Page, had expressed reservations about her reliability in problem solving, the learned judge found that part-time work in a familiar environment such as a ladies dress boutique, should be possible for her and that her prospects of increasing the number of hours she could work were reasonably good. Despite evidence about her mood swings, anxiety, forgetfulness and difficulties in concentration, his Honour found merit in a submission that throughout the course of her evidence she displayed few signs of those limitations and gave her testimony with composure.

34 It was pointed out by the learned judge that using the 7 per cent tables, a total loss for the following twenty-three years until the appellant attained sixty years of age, assuming that but for the accident she would have worked 5½ days a week as a shop manageress, meaning a weekly net income of $405, would amount to $246,773. A weekly loss of $347 for a thirty-eight hour week would equate to $211,323. From the aforegoing his Honour concluded:

"Allowing for general contingencies and for the reduction in the degree of probability, due to the uncertainties in predicting its extent, that her residual working capacity will be total or close to it, I would allow a sum of $150,000 in respect of her diminished past and future capacity."

35 A difficulty for this Court is that the learned trial judge did not make specific findings concerning the appellant's earning capacity, apart from what I have set out, and yet it seems clear that his Honour was satisfied that she is left with a substantial incapacity due to her injuries. The learned judge referred at length to the respective opinions of a consultant neurologist, Dr Siejka, and the clinical psychologist, Mrs Page, and referred to the opinion of a psychiatrist, Dr Woo. It is reasonable to conclude that his Honour essentially accepted those opinions, subject to the conclusions and findings which I have set out. Dr Siejka could not see the appellant being able to undertake the managerial responsibilities of running a newsagency, but could see no major difficulty with work in a newsagency involving no book-keeping, with her husband being present all the time and to begin with her hours being short due to her commitments in respect of her younger child. As to whether she could return to work in a dress shop, the learned judge thought Dr Siejka's evidence equivocal. In examination-in-chief Dr Siejka's opinion was that having regard to her depression, fatigue, headaches and other matters, it was not a real possibility that the appellant would return to full time or permanent employment. He thought that initially she would only manage limited part-time work with no major responsibility, such as a helping hand in a boutique or a newsagency, very much governed by the amount of work that she wanted to do, a factor which would not suit many employers. In cross-examination Dr Siejka expressed the opinion that "perhaps she could return to her workplace, maybe in the order of, you know, two hours initially and see how she coped with that amount of time". Mrs Page found cognitive impairment, in particular, a disturbance of attention and memory function. Attention was poorly sustained so that the appellant's performance on a variety of tasks was error prone and she was not able to summon sufficient attentional resources to enable adaptation to increased mental load or complexity. Mental tracking was susceptible to error, organisational strategies were vulnerable and the appellant's ability to acquire, store and retrieve new information appeared diminished. Mrs Page thought that the test performance pattern was consistent with the appellant's complaints of unreliable memory and difficulty organising herself in the face of the typical complex demands of her family role. Mrs Page expressed doubts about the appellant's reliability as an employee in a dress shop and her ability to deal with work in a newsagency which was unfamiliar to her. She did not however disagree with Dr Siejka's comment in cross-examination, cited above. Dr Woo thought that with her disabilities the appellant would have difficulties in procuring and retaining employment and would find it hard to deal with a number of customers at a time and to supervise staff. It is in the light of those opinions that the findings of the learned trial judge were made.

36 Upon the basis of the appellant's evidence, it is likely that if the accident had not happened she would have returned to part-time work at first. Her daughter, Sophie, commenced full time school at the beginning of 1997. It was the appellant's evidence that if she and her husband had purchased a newsagency business she would have expected that she would have worked part-time from about 9 or 9.30am until about 2.30 or 3pm when she would have left to pick the children up from school. If she and her husband had not purchased a newsagency, she thought it likely that she would have returned to work as a retail assistant on a part-time basis also. As the children got older, she would have expected to increase her hours to full time work, she said. She would have been encouraged to do so because her husband has an injured back which prevents him from performing hard physical work.

37 The evidence therefore established that the appellant would not have worked full time throughout the twenty-three years following 1997. I think it is fair to say that it is likely that if the accident had not occurred she would have worked part-time at least for a significant part of that period. She would have had the care of her children as a major demand on her time for probably the next ten years at least, and there is no certainty, despite what she might have thought as a young woman, that she would thereafter work for the like of forty hours a week. I think $180,000 would be a fair assessment of the value of her pre-accident earning capacity, without her injuries. Having regard to the findings that part-time work should be possible for her and that her prospects of increasing the number of hours she can work are reasonably good, I conclude that $150,000 for lost earning capacity is excessive to the point of error. As assessment in the range of $110,000 to $120,000 would be appropriate, in my opinion.

38 By its cross-appeal, the respondent has also attacked the assessment of $15,000 for the value of lost superannuation benefits, claiming error on two bases, first, that the learned judge erred in adopting a broad brush approach to the task of assessing the appellant's loss of future superannuation benefits, and second, in awarding $15,000 when there was no evidence to support a claim for such a loss. In dealing with the matter the learned judge was brief. He commented that the absence of any actuarial evidence made extremely difficult the task of assessing the present value of an anticipated lump sum payment payable on retirement at age sixty, discounted for contingencies. He referred to the adoption of a broad brush approach by Slicer J in Mifsud v ICI Pty Ltd unreported 70/1997, in a case where there was no actuarial evidence, and determined to do the same, allowing $15,000 under this head. I see no error in a broad brush approach. It is not an unusual way to assess items of damage, although if a plaintiff comes to court without evidence to support a claim he or she cannot expect a generous amount to be awarded. However, I think that $15,000 was an excessive assessment, particularly having regard to what I would reassess as the value of the appellant's lost earning capacity. $7,500 to $10,000 would be a more appropriate sum to allow, in my opinion.

39 For the reasons I have given I would allow the appeal, set aside the judgment in favour of the respondent and, in lieu, enter judgment for the appellant. Having regard to the view I take regarding general damages, the value of the appellant's lost earning capacity and the value of her lost superannuation entitlement, I would assess the damages at a figure about $35,000 less than the assessment of the learned trial judge. On that basis, and rounding off, I would order judgment for the appellant against the respondent in the sum of $160,000.

JANE CAROLYN MURFET v AAPC AUSTRALIA PTY LTD ACN 003 993 673 (carrying on business as) NOVOTEL LAUNCESTON

40 I agree with the reasons for judgment of Wright J on the issues of liability and contributory negligence.

41 As to damages, the appellant contends that the award of $20,000 general damages for pain and suffering and loss of amenities is inadequate. The respondent, by its cross-appeal, contends that the award of $150,000 for loss of earning capacity and the award for $15,000 for loss of future superannuation benefits are excessive.

42 In total, the appellant's damages were assessed at $194,530.80.

43 For the appeal or the cross-appeal to succeed, it must be demonstrated that the total sum assessed for damages was wholly erroneous. The following passage from the decision of Shepherdson J in Calder v Boyne Smelters Limited [1991] 1 Qd R 325 at 343 is apposite:

"In many cases on appeal against assessment of damages for personal injury arguments are advanced against amounts assigned by a trial judge in respect of selected heads of damage. The present case is one such. There is I think a danger that in focusing on a particular item attacked as too high or too low as the case may be an appellate court can lose sight of the other heads of damage to which the amounts have been allocated and the possibility that those amounts or any of them may be either on the high side or on the low side and in a particular case offset the amount in the particular head attacked as either too high or too low. All this is to really emphasise the point constantly made in the cases that it is the total sum awarded which must in the final analysis be looked at by the appellate court. As Mason J (as he then was) said in Wilson v Peisley (1975) 50 ALJR 207 at 214:

'The settled rule, then, is that an appellate court will not disturb a primary judge's award of damages for personal injury unless it is convinced that he has acted on a wrong principle of law or that he has misapprehended the facts or that the amount of damages awarded is so inordinately low or so inordinately high as to be a wholly erroneous estimate of the damage suffered.'"

44 As to the appellant's claim for lost earning capacity, the learned trial judge used the seven per cent tables to calculate the appellant's anticipated loss of earnings as a shop manageress for the twenty-three years until she attained the age of 60 at $246,737 for a five and a half day working week, and $211,323 for a thirty-eight hour working week. Allowing for general contingencies and the uncertainties of predicting whether the appellant's residual working capacity would be total or close to it, the learned trial judge awarded her $150,000 for her diminished past and future earning capacity.

45 For the reasons given by Crawford J, I consider that the appellant would not have worked full-time throughout the period of twenty-three years following her probable return to work in 1997, and it is likely that she would have worked part-time for a significant part of that period.

46 Had the appellant and her husband purchased a newsagency, her expectation was that she would have worked part-time from about 9am or 9.30am until about 2.30pm or 3pm when she would have left work to collect her children from school. If a newsagency had not been purchased, she expected that she would have returned to work as a retail assistant on a part-time basis. Her hours of work would have increased as her children matured and ultimately she would have worked full-time. Initially, she expected to work for twenty-seven and a half hours per week. If her net hourly rate of earnings was the same as that of a shop manageress working thirty-eight hours per week ($9.13 per hour) her part-time weekly earnings would have been $251. Applying the seven per cent table, a loss of $251 for twenty-three years is $152,859.

47 Using the figures that are available, and assuming working hours as detailed below, I am assisted by the following calculation in assessing the appellant's pre-accident earning capacity:

Earnings from working for 27½ hours per week for 50% of the period of 23 years

Earnings from working a 5½ day week for 25% of the period of 23 years

Earnings from working for 38 hours per week for 25% of the period of 23 years

48 I would assess the appellant's pre-accident earning capacity at $190,000. To allow for general contingencies and the possibility of her being able to obtain part-time employment, I would discount that amount by twenty-five per cent and assess her damages for lost earning capacity at $142,500.

49 At the time of the accident, the appellant was just short of 34 years of age. It is clear from the learned trial judge's findings in relation to the appellant's loss of earning capacity that he accepted that to a significant degree her disabilities arising from the accident were ongoing. That being the case, I would award her more than the $20,000 damages allowed by the learned trial judge for pain and suffering and loss of amenities. I would allow her $25,000 for this item of damage. For lost superannuation benefits, I would allow her $8,000 rather than the $15,000 she was awarded.

50 In result, I would assess the appellant's damages for the three items in dispute at $9,500 less than the learned trial judge. It is almost inevitable that different judges will have different views on the appropriate award of damages in relation to a claim such as that which is the subject of this appeal. "The assessment of an appropriate award of damages for a tort involves many processes which are subjective, if not downright speculative." Dodge v Matcham A19/1988, Cosgrove J at 1. In the context of a total award of damages of $194,530.80, I do not consider that a difference of $9,500 between the amount I would have awarded and the amount awarded by the learned trial judge, warrants a conclusion that the award is so inordinantely low as to call for appellate intervention.

51 I would dismiss the appeal and cross-appeal as to damages, set aside the judgment in favour of the respondent and enter judgment for the appellant for $194,530.80.