NSW Land & Housing Corporation v Watkins

Background 34 On 7 November 1996 at about 7.30am the plaintiff got into the shower at her home. Her home was a house leased by her husband from the defendant. It was occupied by the defendant, her husband and two daughters, who were then aged about 11 and 8. While she was in the shower, the water became hotter. She fell and fractured bones in her spine. The extent of her injuries may have been greatly worsened but for a fortunate circumstance - her husband knew how to treat injured people safely by reason of his occupation as a tow truck driver, and this enabled him to avoid further injury to her, and in particular, quadriplegia, while he cared for her before an ambulance came and took her to Liverpool Hospital.

The trial judge's findings on liability 35 At the time of the accident the plaintiff was 37. She had been married most of her adult life. She and her family had occupied the premises from 1990 onwards. 36 The trial judge made express findings, or summarised the evidence in a manner indicating acceptance of it, in the following way: "The premises had what has been described as a gravity fed hot water system which was located in the roof space of the cottage. This hot water system appears to have been of some age at the time the plaintiff, her husband and children moved into the property. When they moved in, the plaintiff and Mr Watkins noticed that the plumbing system in the property delivered very hot water. The water was so hot that, according to the plaintiff (and corroborated by her husband) they could not put their hands under it without mixing cold water with it. In addition, the hot water service was very sensitive in that the plaintiff said that they had to adjust the taps very accurately to obtain water of a bearable temperature to bathe in. The plaintiff said that if she turned the hot water down a little whilst in the shower, the shower would go cold. She said that if, when the water was adjusted to a comfortable temperature she was in the shower and a cold tap was turned on elsewhere, the water in the shower would become a lot hotter, so much hotter as to be uncomfortable. She said that, at times, she felt obliged to shout out to other members of her family when she was under the shower not to turn cold water taps on or not to leave cold water taps turned on. The plaintiff said, 'I told the kids from when they were little not to touch the water if anyone was in the shower'. Mr Watkins gave evidence that within a matter of weeks of moving into the premises he experienced what he described as a 'hot spell' whilst under the shower. He said, 'It heated me up a little bit' and that it was extremely hot causing him to have to step back out of the shower spray as he could not stand under it with that hot temperature. Mr Watkins said that it was discussed in the family that the taps should not be turned on if anyone was in the shower. Mr Watkins said that in his case at times he did turn on other taps in the house while somebody was in the shower, but he tried not to." 37 The plaintiff and her husband made three complaints about the hot water system. 38 First, about six months after moving into the premises, her husband: "rang the defendant's Liverpool office. He asked the person to whom he spoke whether anything could be done about the hot water service because they were frightened that the children were going to get burnt from the hot water. In the result, nothing was done in response to that complaint." 39 The second complaint was made in the following circumstances: "at some time later a leak developed somewhere in the roof area and … water was running down from the water system on the outside of the roof. A plumber arrived to attend to the problem and told them that water was coming from 'the overflow'. Both the plaintiff and Mr Watkins said that Mr Watkins asked the plumber whether there was any way that the temperature of the water heater could be turned down. However, despite that request it was not turned down."

The trial judge declined to find that the plumber had reported that complaint back to the defendant. 40 The third complaint was made after the second, and about three years before the accident: "the plaintiff and her husband went to the defendant's Liverpool office and Mr Watkins filled out a form of some kind there in which he said that he wanted to complain about the hot water service because the water was becoming too hot. Both the plaintiff and Mr Watkins said that the completed form was handed to an officer of the Department of Housing at the desk at the Liverpool office however, again, no action was taken to remedy the problem."

The plaintiff and her husband did not retain a copy of the form. The defendant did not produce the form. There is no evidence of what was recorded in the form. 41 The trial judge summarised the plaintiff's evidence as to how the accident happened which, as will be seen, he accepted, as follows: "The plaintiff said that she got into the shower and adjusted the temperature in the normal way and began showering. She said that she recalled whilst in the shower the hot water becoming hot. She said that her next recollection was waking up whilst prone in the bottom of the bath. She said that she had no recollection of how she fell and that she woke with her head on the back of the bath. She said she had then a pain in her neck and a pain in her lower back. She said she tried to pull herself up and felt sick. She called for assistance and apparently attracted the attention of one of her children, who, in turn, called her husband who came into the bathroom to assist her. Mr Watkins found the plaintiff lying in the bath tub face up and Mr Watkins lifted the plaintiff and took her into their bedroom. … She was cross-examined about the circumstances of her fall. The plaintiff said she was not in a position to say what happened to the shower before she fainted. However, she could say that it went hot and that it was not at the temperature at which she set the shower when she first entered it. She said that she was facing towards the water and that she felt the water go hot almost instantaneously. She said she remembered it all down her front." 42 The operative reasoning of the trial judge then proceeded as follows. 43 The trial judge noted the defendant's concession that it owed the plaintiff a duty of care. 44 The trial judge also found that that duty of care was breached: "there was a breach of the defendant's duty of care because a system which contained water which was so hot and with taps and/or plumbing so sensitive that the turning on of a cold tap elsewhere in the house produced scalding water presented an obvious danger to occupants of the premises. I find as a fact that the defendant knew of this danger because the plaintiff's husband had twice reported it to the Liverpool office." 45 The trial judge then found that the defendant's breach of duty caused the plaintiff's fall. He said: "a sudden burst of hot water from the shower was the immediate cause of the plaintiff's fall. I have come to that conclusion for the following reasons: 1. The problem of hot water suddenly flowing from an outlet when a cold tap was turned on elsewhere was a condition which in fact existed in this house at the time. 2. There is evidence from Louise Watkins [the plaintiff's daughter, then aged 8] that she turned on the cold tap when, unknown to her at the time the plaintiff was under the shower. That evidence was not contested. 3. That situation was likely to produce a rapid rise in the temperature of the water in the shower. 4. The plaintiff has said that she recalls being struck with hot water from the shower before her fall and, in my view the plaintiff appeared an honest and reliable witness. 5. Mr Moore, a plumber, took readings of the temperature under the shower head not too long after the accident occurred. He did so by turning on various other taps within the property in accordance with a report he prepared on the letterhead of Douglass Plumbing, 11 March 1997. Mr Moore recorded that the water temperature at the shower with the hot water tap on only was sixty seven degrees centigrade. He also said that a comfortable hot and cold temperature from the shower was a temperature of thirty seven degrees centigrade and that when the cold tap was turned on at the kitchen sink to the shower adjusted to a comfortable temperature the shower temperature increased to forty seven degrees centigrade, that is to say a rise of ten degrees. 6. Dr Conrad, as I indicated, said, and I accept that a rise in water temperature of that magnitude can cause a person to faint, especially a person such as the plaintiff who had low blood pressure."

The trial judge said that material in the notes made by staff at Liverpool Hospital which pointed against the above findings should be discounted as containing inaccuracies caused by the plaintiff's distress while being treated at the hospital. He also said that while it was possible that the plaintiff fell because of dizziness or vertigo occasioned by her low blood pressure, that was less probable as an explanation than "the sudden unexpected increase in temperature". 46 Finally, the trial judge found that the damage suffered by the plaintiff was reasonably foreseeable by the defendant: "it was submitted for the defendant that the defendant was not on notice of the plaintiff's condition of low blood pressure and that an injury of this kind was not foreseeable. In my view the plaintiff's injury was reasonably foreseeable by the defendant. It is true that the defendant would not have known of the plaintiff's low blood pressure but it was foreseeable that a sudden burst of very hot water could have come from the shower head. As was submitted for the plaintiff, once the danger is present it does not matter that the precise mechanism of the accident may not have been foreseen and I agree with the plaintiff's submission that even if the plaintiff had slipped while trying to get away from a sudden burst of hot water, the defendant would have been nonetheless liable."

The parties' contentions in outline 47 At a simple factual level the case of the plaintiff in substance was as follows. The structure of the hot water system meant that a user of the shower could not stand in it if a cold tap was turned on elsewhere in the house because that produced a sudden and sharp rise in temperature, and was such that that user had to move out of the water hastily. The hot water system was thus unsafe and dangerous. The Watkins family perceived this to be so great a problem that they made three complaints about it, two direct to the defendant and one to a plumber sent by the defendant. Further, the family perceived the problem to be so serious that a strict rule was introduced that no cold tap was to be turned on while anyone was in the shower. The trial judge found that the change in temperature at 7.30am on 7 November 1996 caused the plaintiff's injuries, and paragraph 3 of the Notice of Appeal, which challenged that conclusion, was abandoned in written submissions. The problem was overcome after the accident by the substitution of the old hot water system by a mains pressure hot water system and there was no evidence that that was unduly expensive. In essence the trial judge accepted that case. 48 There were many aspects of the trial judge's reasoning which the defendant did not challenge on appeal. The response of the defendant to the trial judge's reasoning and to the plaintiff's case operated at two levels. 49 The first response of the defendant was at a factual level of equal simplicity to that which the plaintiff employed. The defendant said that the Watkins family cannot have perceived the hot water system to be dangerous because they only complained three times in six years and they did not follow up the complaints. Further, the plaintiff persistently showered when she could have taken baths in the same way that her daughters did. The plaintiff had had about 1500 showers before the accident without any incident and without slipping and falling. In short, the defect in the hot water system was not perceived to be, and was not, a matter of real consequence; it was no more than annoying and inconvenient. Hence the hot water system was not unsafe, harmful or dangerous. 50 It might well be said that the items of evidence on which the defendant's conclusion is based, whether or not they are strong enough to support it, show at least that the plaintiff's case, if it is to succeed, requires the court to proceed close to the extreme limits of recovery. That is because the type of problem experienced with the hot water system is a not uncommon one in many Australian houses. While it is possible that all persons injured as the plaintiff was have a valid claim in negligence, that possibility calls for a close analysis of the legal reasoning employed and not employed by the trial judge. It was that analysis which the defendant embarked on in its second level of response to the plaintiff's argument with a view to showing that the plaintiff was seeking to proceed not merely close to the extreme limits of recovery, but over them. 51 The defendant's arguments in relation to the second level of its response may be grouped as follows. The defendant said, first, that the trial judge failed to identify or define the extent or scope of the duty of care which he found the defendant to have breached. Secondly, the defendant said that the plaintiff had failed to prove, or even tender any evidence at all to prove, what standard of care was appropriate for the defendant. Thirdly, the defendant said that the trial judge determined the issue of breach solely by reference to foreseeability of a risk of injury to the plaintiff, and paid no regard to a reasonable man's response to the risk created by evaluating the magnitude of the risk and the degree of probability of its occurrence; the expense, difficulty and inconvenience of taking alleviating action; and any other conflicting responsibilities which the defendant had. Fourthly, the defendant said that the injury suffered by the plaintiff was too remote because it was not reasonably foreseeable: even assuming that it was reasonably foreseeable that a rise in water temperature might cause a user of the shower to slip, fall and thereby suffer physical injury, it was not reasonably foreseeable that it would have a psychological impact causing a vaso vagal attack in the manner which Dr Peter Conrad, whose evidence the trial judge appeared to accept, thought had happened. 52 There is one issue that arises out of the contest between the parties at a factual level that could have significance for the determination of the legal issues raised by the defendant. That relates to the temperature of the water under the shower after a cold tap was turned on elsewhere in the house. It is therefore convenient to deal with that issue at the outset.

Was the water "scalding"? 53 The trial judge, in concluding that the defendant was in breach of duty, said that the water under the shower became "scalding" when a cold tap was turned on elsewhere. Elsewhere he called it "very hot" and "hot". He also said that there was "a rapid rise in the temperature" and described that rise as "sudden". 54 The defendant's argument about the finding that the water was "scalding" was that the only evidence supporting it was that of Dr Conrad in his report of 12 March 1998. That report contained the following description of the accident: "Apparently the hot water system malfunctioned and [the plaintiff] was suddenly [scalded] with hot water from the shower and as a result she blacked out."

In cross-examination Dr Conrad said that the word "scalded" would have been the plaintiff's word. He explained his understanding of it thus: "it is hot temperature which is uncomfortable and causes some painful reaction, that is my understanding and with scalding it usually means a hot liquid that is my understanding, but it is a lay term". 55 The defendant then submitted that there was a disconformity between what the plaintiff told Dr Conrad and what she and her husband told the court. The defendant pointed to the following descriptions given by the plaintiff or her husband of the temperature of the water either during the general operation of the system or when the accident happened: "Uncomfortable" (Black 30E), "too hot" (Black 32D), "the hot water going hot" (Black 34L), "the water [got] hot" (Black 69W), "experienced a hot spell under the shower [which] heated me up a little bit" so that the water felt "Extremely hot. I had to step back from the shower and sort of go to turn it down. I couldn't actually stand under it" (Black 95B-E). The defendant also pointed to evidence from the plaintiff that she had never burned herself in the hot water (Black 64X). The defendant noted that on or about 11 March 1997 a plumber, Mr Moore, measured a rise in the water temperature of the shower from 370C to 470C when the kitchen sink cold tap was turned on (Blue 159). That rise was not measured instantaneously: the reading of 470C was made about ten seconds after Mr Moore had turned the kitchen sink cold tap on, in which period of time he moved from the kitchen to the bathroom (Black 103L-104M). Finally, the defendant said that "no witness was asked about, nor did any of them speak to, the capacity of water in the subject premises to inflict pain, blister skin, or otherwise cause physical harm." 56 On the other hand, there was evidence suggesting that the rise in temperature was acute. The plaintiff's husband said in his first complaint to the defendant "Suddenly it will go hot in our house" (emphasis added: Black 95P). The plaintiff said that in that complaint her husband "asked the housing commission if there was anything they could do about the hot water service because we were frightened that the kids were going to get burnt" (Black 30V). The plaintiff's husband described his second complaint, to the plumber, thus: "I asked him if he could take a look at any of the problems that were concerning us regarding the suddenly reaching hot temperatures and whether or not he could do anything about adjusting the system or something … " (Black 96L-M) 57 "Scalding", "scald" and "scalded" are words with a range of meanings in the present context. At one end of the range, to "be scalded" means to be burnt with hot liquid just short of boiling point or with steam. At the other end of the range, to "be scalded" is to be affected painfully by hot liquid. The evidence gives no support to the view that turning on a cold tap in one part of the house produced water in the shower which was "scalding" in the sense of being just short of boiling point. Indeed it is highly improbable that the water produced by turning on the hot tap but not the cold was ever "scalding" in that sense, and Mr Morris' reading was only 670C. However, the evidence does suggest that the water was scalding in the sense that it had had a painful effect on the user of the shower, and one reason for the painfulness of the effect was the suddenness in the change of temperature. It seems likely that that was what the trial judge meant by "scalding", because he said of the plaintiff's evidence: "She said that while the hot water service concerned her because it was simply too hot and that at times she had to pull her hand away because the hot water was uncomfortable, that she had, never in fact, burned herself. I infer that no other member of her family was actually burned by the hot water either."

Accordingly, while the defendant is correct in submitting that the water was not "scalding" in an extreme sense of that word, it does not follow that it was no more than inconvenient. A sudden change in temperature was capable of causing a user of the shower to seek to move away very quickly, and it remains an open possibility that that led to a reasonably foreseeable risk of harm.

The role of foreseeability 58 Before proceeding to consider the four heads under which the defendant grouped its legal arguments, it is convenient to set out a passage from Minister Administering the Environmental Planning and Assessment Act, 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268 at 295-296 on which the defendant relied. Glass JA there said: "Since the proximity relationship permeates much of the discussion which follows, it is as well to say something at this point about 'the foreseeability of the plaintiff's damage' which is sometimes equated with it. The blunt notion that they are interchangeable, although encouraged by earlier decisions, has been sharpened by subsequent analysis which has rejected ambivalent terms such as likely and unlikely and displaced reasonable foreseeability in favour of the more precise term reasonably foreseeable possibility. Coupled with this a recognition has emerged that the foreseeability inquiry at the duty, breach and remoteness stages raises different issues which progressively decline from the general to the particular. The proximity upon which a Donoghue type duty rests depends upon proof that the defendant and plaintiff are so placed in relation to each other that it is reasonably foreseeable as a possibility that careless conduct of any kind on the part of the former may result in damage of some kind to the person or property of the latter: Chapman v Hearse (1961) 106 CLR 112, at 120, 121. The breach question requires proof that it was reasonably foreseeable as a possibility that the kind of carelessness charged against the defendant might cause damage of some kind to the plaintiff's person or property: Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd; The Wagon Mound (No 2) [1967] AC 617, at 642, 643, Wyong Shire Council v Shirt (1980) 54 ALJR 283, at 285, 286; 29 ALR 217, at 219-222. Of course, it must additionally be proved that a means of obviating that possibility was available and would have been adopted by a reasonable defendant, ibid. The remoteness test is only passed if the plaintiff proves that the kind of damage suffered by him was foreseeable as a possible outcome of the kind of carelessness charged against the defendant: Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, at 390." 59 One difficulty with this passage is that it may assume that "proximity" is an essential element in liability for negligent acts. To the extent that it did make that assumption, it received some support from later High Court authority. But in Sullivan v Moody (2001) 183 ALR 404 at [43]-[48] Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ indicated that the role of "proximity" is a limited one. They said: "In Donoghue v Stevenson [[1932] AC 562], the House of Lords, by a majority of three to two, held that such a duty was owed by the manufacturer of a beverage to a consumer of a beverage where the manufacturer sold the product to a distributor and it was ultimately sold to the consumer in circumstances such that the consumer could not discover a defect in the beverage by inspection. It was established that it was not necessary for a plaintiff to show that a case was covered by, or closely analogous to, existing precedent, and that there were general principles by reference to which a claim in negligence fell to be decided. The first principle was that, in order to support an action for damages for negligence, a plaintiff must 'show that he has been injured by the breach of a duty owed to him in the circumstances by the defendant to take reasonable care to avoid such injury' [[1932] AC 562 at 579 per Lord Atkin]. Lord Atkin, noting how difficult it was to find in the authorities statements of general application defining the relations between parties that gave rise to that duty, and pointing out that there must be some element common to all the particular relations which had been held to involve a duty said [[1932] AC 562 at 580]: 'To seek a complete logical definition of the general principle is probably to go beyond the function of the judge, for the more general the definition the more likely it is to omit essentials or to introduce non-essentials. The attempt was made by Brett MR in Heaven v Pender , in a definition to which I will later refer. As framed, it was demonstrably too wide, though it appears to me, if properly limited, to be capable of affording a valuable practical guide'. In Heaven v Pender , Brett MR, addressing the question what is the proper definition of the relation between two persons which imposes on one of them a duty to observe, with regard to the person or property of the other, care to prevent injury, said [(1883) 11 QBD 503 at 509]: '… whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.' Ten years later, in Le Lievre v Gould [[1893] 1 QB 491 at 504] A L Smith LJ described that as a statement of principle 'that a duty to take due care [arose] when the person or property of one was in such proximity to the person or property of another that, if due care was not taken, damage might be done by the one to the other'. That statement appears to refer to a limited form of proximity: proximity of person or property. But Lord Atkin said that it was not to be understood as limited to physical proximity. It was intended 'to extend to such close and direct relations that the act complained of directly affects a person whom the person alleged to be bound to take care would know would be directly affected by his careless act' [[1932] AC 562 at 581]. Even so, his Lordship was speaking of 'close and direct relations'. He went on to acknowledge that there will no doubt be 'cases where it will be difficult to determine whether the contemplated relationship is so close that the duty arises' [[1932] AC 562 at 582]. The references to 'relations', and to the problem of deciding which relations are sufficiently proximate to give rise to a duty of care, in part reflects the previous history of the law of negligence, the focus of attention often being particular categories of relationship. The search was for a unifying principle which informed the decisions in respect to those categories. The actual conclusion in Donoghue v Stevenson was that, at least in certain circumstances, the manufacturer of a product intended for human consumption stood in a sufficiently proximate relation to an ultimate consumer of the product to attract a duty of care. But Lord Atkin, in his formulation of principle, was seeking to find 'a valuable practical guide', and warned against 'the danger of stating propositions of law in wider terms than is necessary' [[1932] AC 562 at 583-584]. Consistently with his reasoning, he might also have warned against the danger of stating such propositions in more categorical terms than is appropriate. As Professor Fleming said [Fleming, The Law of Torts , 9th ed, (1998) at 151], 'no one has ever succeeded in capturing in any precise formula' a comprehensive test for determining whether there exists, between two parties, a relationship sufficiently proximate to give rise to a duty of care of the kind necessary for actionable negligence. The formula is not 'proximity'. Notwithstanding the centrality of that concept, for more than a century, in this area of discourse, and despite some later decisions in this Court which emphasised that centrality [eg Jaensch v Coffey (1984) 155 CLR 549 especially at 584-585 per Deane J; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 52 per Deane J], it gives little practical guidance in determining whether a duty of care exists in cases that are not analogous to cases in which a duty has been established [ Hawkins v Clayton (1988) 164 CLR 539 at 555-556 per Brennan J; Hill v Van Erp (1997) 188 CLR 159 at 210 per McHugh J; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 96-97 [270]-[274] per Hayne J]. It expresses the nature of what is in issue, and in that respect gives focus to the inquiry, but as an explanation of a process of reasoning leading to a conclusion its utility is limited." 60 Another matter to be borne in mind in considering Glass JA's analysis is that he regarded reasonable foreseeability as an "undemanding" standard (Shirt v Wyong Shire Council [1978] 1 NSWLR 631 at 641). That particular view is a view which the law in future, and indeed perhaps at present, may not reflect. 61 It must also be remembered that reasonable foreseeability is a necessary condition for liability, not a sufficient condition. 62 Subject to those caveats, the analysis of Glass JA must be given the deep respect any pronouncement of his, particularly in the field of personal injury litigation, deserves. Indeed, though the defendant said it could not point to any authority applying Glass JA's analysis, there is some support for it. Thus in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 Mason J said that "foreseeability in connection with the existence of the duty of care" involved "a more generalised inquiry" than "foreseeability in the context of breach of duty". See also Bus v Sydney County Council (unreported, 4 April 1986, NSWSC), where at p 15 Wood J said he found the analysis to be "of considerable assistance"; G G Rudge v Murray Tractors Importers Pty Ltd (unreported, 9 November 1989, NSWCA) per Hope AJA at p 9, Gleeson CJ and Meagher JA concurring; Miletic v Capital Health Commission (1992) 108 FLR 213 at 215-216 per Higgins J; and Ratcliffe v Jackson (unreported, 27 May 1993, Tas FC) at p 7 per Underwood J.

Failure to define the scope of the duty 63 At the trial the defendant admitted that it owed the plaintiff a duty of care. By itself this did little to narrow the controversy. Defendants in negligence litigation, like lawyers discussing the tort of negligence, sometimes treat the duty of care as a very general matter which is given content only by debate about what the appropriate standard of care imposed by that duty is. On the other hand, sometimes analysis of the existence of a duty of care proceeds concurrently with inquiries into what its content or standard is. 64 The defendant's written submissions proceeded as follows. The general submission was that the trial judge "failed to identify or define the content or scope of the duty of care breach of which he found". The defendant then said: "Until the nature, quality or extent of the duty is so defined, it is not possible to say whether reasonable care has been taken to fulfil that duty which is owed". This submission was supported by reference to various cases. As the defendant said in a written submission filed after the close of argument, one of them has been attacked to some degree in the High Court since. Further, the approach taken in another has been overruled in a case decided after the close of argument, namely Sullivan v Moody (2001) 183 ALR 404. However, the proposition advanced is not controversial. The defendant then said: "The content of the duty of care owed by a landlord to a non-tenant occupant was considered by the High Court in Jones v Bartlett & Anor (2000) HCA 56; (2000) Aust Torts Reps 81-582; see in particular Gleeson CJ at para 56 - 'the duty was a duty to take reasonable care to avoid foreseeable risk of injury to the appellant; the practical extent of the duty was governed by the circumstances of the case'; Gummow and Hayne JJ at paras 195-197. The learned trial judge, having failed to identify the circumstances of the case and the manner in which, viewed prospectively, they called for reasonable steps to be taken by the defendant/landlord, failed to decide a critical and essential pre-condition to the imposition of liability upon the defendant." 65 In oral argument the defendant referred to the following observation of Mahoney JA in Phillis v Daly (1988) 15 NSWLR 65 at 74, which was quoted by Gleeson CJ in Jones v Bartlett (2000) 176 ALR 137 at [24]: "There are dangers on any premises. A room may have a desk or a table. There is a danger that, if I fall, I will hit my head on it and my skull will be fractured. If the desk or table were not there, I would suffer little or no harm. And the danger is obvious: people do slip and fall. And the injury may be serious. But the obvious foreseeability of such an injury and its seriousness does not involve that, if a person falls and hits his head on a table, there must have been a breach of duty by the occupier of the room. And this notwithstanding that people may live without tables and that tables may be easily removed."

The defendant also quoted the following remarks of Gleeson CJ in Jones v Bartlett at [25]-[26]: "It is interesting, and not without relevance, to speculate about how many objects in and around an ordinary dwelling house would constitute a potential hazard to a person who behaved as carelessly as the appellant. I do not accept that the condition of the respondents' premises was shown to be defective in any relevant sense." 66 Those passages do not appear to be of much relevance to the present controversy. There was no contention on the appeal that the plaintiff had behaved carelessly. The trial judge rejected contributory negligence at the trial and the Notice of Appeal did not challenge this finding. 67 What was the content of the duty for which the plaintiff contended at the trial? The Statement of Claim made the following allegation: "In the circumstances the defendant was under a duty of care to the plaintiff and was in breach thereof and was negligent. PARTICULARS OF NEGLIGENCE: (a) Failing to take any or any adequate precautions for the plaintiff's safety; (b) Putting the plaintiff in a position of peril in the circumstances; (c) Failing to ensure that the shower within the premises was safe for use by the inhabitants of the house; (d) Failing to replace the hot water system; (e) Providing the premises with a hot water system which was unsafe; (f) Providing a hot water system with insufficient pressure; (g) Failing to heed the previous complaints of the said David Watkins that the water mixture in the shower was affected by other taps with the result that the temperature of that mixture substantially rose if other taps were turned on in the house; (h) Failing to regularly inspect and maintain the said hot water system; (i) Failing to replace the said hot water system which was a low pressure system with a mains pressure system."

What the particulars boil down to is an allegation that the hot water system should have been either repaired or replaced. While the trial judge did not appear explicitly to state what the content or measure of the duty of care was, he does appear to have thought that the duty called for either repair or replacement of the hot water system. Even if he did not turn his mind to that question, it is open to this Court to formulate the content of the duty of care for itself. Assuming everything else in the plaintiff's favour, the content of the duty of care was such as, in the circumstances, to call for repair or replacement of the hot water system.

Lack of evidence of appropriate standard of care 68 The defendant said, citing Neill v NSW Fresh Food and Ice Pty Ltd (1963) 108 CLR 362, that it was necessary for the plaintiff to prove what standard of care was appropriate for a landlord in the position of the defendant, and there was not "a jot of evidence" on this issue. 69 Neill's case was a case in which an injured workman who slipped while cleaning a milk tank contended that there was a defect in the system of work on which he was engaged, but called no evidence as to what steps could have been taken to minimise or eliminate the risk of slipping. A jury verdict in his favour was overturned by the Full Court of the Supreme Court of New South Wales and the High Court dismissed an appeal. They held that the case was not one in which the application of common knowledge justified a finding that the system of work was defective, and, in the absence of evidence as to what steps, if any, might have been taken to minimise or eliminate the risk of injury in the performance of the work, the verdict entered for the plaintiff could not be supported. Taylor and Owen JJ, for example, said at 368-369: "No doubt in many cases no more than common knowledge, or perhaps common sense, is necessary to enable one to perceive the existence of a real risk of injury and to permit one to say what reasonable and appropriate precautions might appropriately be taken to avoid it. … …. [The] evidence must be such as to justify a finding of negligence on the part of the employer and, if the negligence alleged is in relation to the system of work employed, the evidentiary material must be such as to enable the jury to find that the system unreasonably exposed the workman to risk of injury. …. Whether or not there has been such a failure on the part of the employer may, in some cases be resolved, by the application of common knowledge; in others it may be necessary to show a departure from long-established practice in the type of work under consideration or by showing that an appropriate method which would eliminate or minimise the risk was reasonably available." 70 The question which the defendant's submission poses is whether it is possible to say, as a result of applying common knowledge and without specific evidence of unreasonable exposure to a risk of injury, that there was "a real risk of injury". Referring to the second type of foreseeability described by Glass JA in the San Sebastian case, the defendant said: "all that has to be satisfied at the breach inquiry stage is that failing to replace the hot water service might cause as a possibility some kind of damage. I don't concede it but one might conclude if there is an extremely significant change in temperature one might recoil and in a bath might slip and fall and thereby suffer bruises or more serious injury, some kind of damage, it's a generalised inquiry as to the damage suffered."

To arrive at the conclusion that the user of the shower might, if the turning on of a cold tap caused the water temperature to rise so suddenly and to such a level that that user would feel the need, as the plaintiff's husband said he did, to step back from the shower, does not call for specific evidence that that creates exposure to a risk of injury. Arrival at that conclusion is capable of being based on common knowledge. Hence the defendant's argument fails. Of course, whether the employment of common knowledge would in fact cause one to arrive at the conclusion is a different question to be answered under the next heading.

Failure to apply the breach of duty "calculus" 71 The defendant's submission was that the trial judge determined the question of breach of duty solely by reference to foreseeability, and paid no attention to what was described as the "'calculus of negligence' prescribed by the High Court in Wyong Shire Council v Shirt" (1980) 146 CLR 40 at 47-48. 72 Mason J's formulation in Wyong Shire Council v Shirt, which largely corresponds with earlier formulations such as that of Dixon CJ and Kitto J in Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 26, though much-cited, bears repetition: "In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."

The point of the passage was pithily summarised by Mahoney JA in Mitchell v Government Insurance Office (NSW) (1992) 15 MVR 369 at 379: "the fact that there is a foreseeable risk of injury does not, as such, require that precautions be taken against it". 73 As this head of argument was developed, the defendant advanced two points. 74 The first point was that in this case the plaintiff failed even to get to Mason J's starting point. That is, it was submitted that the plaintiff had not established any reasonably foreseeable possibility that the kind of carelessness charged against the defendant (failing to repair or replace the hot water system) might cause damage of some kind to the plaintiff's person or property. That submission is to be rejected. In rejecting it it is necessary to take into account common experience. It is also necessary to take into account the fact that the defendant had been asked by the plaintiff's husband on the telephone whether anything could be done about the hot water service because the plaintiff and her husband were frightened that their children were going to get burned by reason of the suddenness of the change in temperature. It is also, finally, necessary to take into account the fact that the plaintiff's husband made a written report to the defendant about the hot water system after attending with the plaintiff at the defendant's offices and saying "he wanted to complain about the hot water service because it was getting too hot when you turned the cold taps on [i.e. in other parts of the house]" (Black 32D). Taking those matters into account, there was a risk reasonably foreseeable to a reasonable person in the position of the defendant that if, while the shower was being used, a cold tap was turned on in another part of the house, the water temperature in the shower would rise so suddenly and to such a degree that the user of the shower would step back hastily and might slip and fall, causing injury. The defendant submitted that the change in temperature was uncomfortable, annoying and inconvenient, not harmful or dangerous. That poses a false dichotomy. While a stoic might have been able to stay under the shower without actually suffering physical injury, or anything more than transient pain, the natural human reaction would have been to do what the plaintiff's husband did and move out of the water. Staying under the water itself may not have been dangerous; but the changed temperature would cause most people to move suddenly, and that step carried dangers. 75 The defendant reminded this Court that reasonable foresight could not depend on "attributes which properly belong to a person of exceptional perspicuity and foresight": Hawkins v Coulsdon and Purley Urban District Council [1954] 1 QB 319 at 327 per Somervell LJ. The defendant also reminded the court that reasonable foresight could not depend on possession of "super-human qualities of imagination and foresight" or on being "a person of 'infinite-resource-and-sagacity": Rae v The Broken Hill Pty Co Ltd (1957) 97 CLR 419 at 422 per Fullagar J. The defendant, acting reasonably, was not called on to exercise exceptional perspicuity or possess super-human qualities of imagination or have infinite resource and capacity in order to foresee the danger of damage of some kind to the plaintiff. 76 The defendant's second point was that the trial judge had not assessed the magnitude of the risk or the degree of probability of its occurrence; the expense, difficulty and inconvenience of taking alleviating action; and the pressure of other conflicting responsibilities. The defendant said: "Nowhere in the evidence was it established whether there was any, and if so what, practicable alternative in the circumstances of this case which was such that a reasonable man in the position of the defendant would be judged as required to implement in the circumstances known to the plaintiff's injury. All that was proved was that there existed a not uncommon, annoying plumbing condition of which the defendant was informed about three years before the plaintiff's fall." 77 The defendant is correct in submitting that the trial judge did not engage in any explicit analysis along the lines contemplated by Mason J. The first question is thus whether this Court is in a position to do so. Since the matter does not turn on disputed issues of credit, it is. The second question is what the outcome of that process should be. 78 One difficulty with the defendant's argument is that after the accident the defendant removed the hot water system and substituted a mains pressure hot water system. This change is not of itself evidence of negligence: Hart v Lancashire & Yorkshire Rail Co (1869) 21 LT 261 at 263; Davis v Langdon (1911) 11 SR (NSW) 149. The change is "relevant not to what should have been done but to what could have been done": Glass, McHugh and Douglas, The Liability of Employers (2nd ed), p 35. This Court was not taken to any evidence of the cost of that change in the hot water system. The legal burden of proving a breach of duty lay on the plaintiff. That in turn meant that the plaintiff bore a legal burden of proving that in all the circumstances it was unreasonable for the defendant not to take the precaution of changing the hot water system before the accident in the way it did after the accident. Even if the plaintiff as a result bore a burden of proof in relation to negating expense, difficulty and inconvenience of making the change, the observations of Gibbs J (with whom Stephen J and Mason J agreed) in Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201 at 214-215 are relevant: "the appellant has shown that it was practicable to provide a new method of doing the work that would eliminate or minimize the risk, because such a new method has in fact been put into operation. In determining whether a reasonable employer would have provided such a new system it would be necessary to consider not only the degree of risk of accident and injury likely to result if no such provision were made, but also the disadvantages, if any, of taking the suggested precaution … . The onus of proving that it was unreasonable not to take the precaution, of course, lay on the appellant. However, when the respondent, which must have had full knowledge of the nature, cost and practical consequences of the new installation, gave no evidence, and by its counsel asked no questions, to suggest that it was inordinately expensive or in any other way disadvantageous, the jury was entitled to infer at the very least that the advantages of the method which the respondent has since adopted were not outweighed by any disadvantages." 79 So here, the defendant would have known the nature, cost and practical consequences - the "expense, difficulty and inconvenience" - of the change. Its failure to call evidence on these questions justifies an inference that the advantages of the new system were not outweighed by any disadvantages. 80 But it is questionable whether the plaintiff did bear a burden of negating expense, difficulty and inconvenience. Those issues on which one or other party bears a legal burden of proof are factual issues on which the validity of the cause of action or ground of defence depends. According to J B Thayer's Preliminary Treatise on Evidence of the Common Law (Boston, Little Brown & Co, 1898), p 355, what is known in modern Australian law as the legal burden of proof is the: "peculiar duty of him who has the risk of any given proposition on which the parties are at issue, - who will lose the case if he does not make this proposition out, when all has been said and done."

A plaintiff bears the burden of proving facts constituting a cause of action (for example, in a contract case, agreement on particular terms, intention to affect legal relations, and either a seal or consideration). A defendant bears the burden of proving the constituent facts of a defence which would defeat the cause of action alleged (for example, in a contract case, illegality or accord and satisfaction). But that there is little expense in alleviating a risk is not a fact on which either side bears a legal burden of proof in a negligence case: it is not a matter which, if not established, will cause a plaintiff to lose. It is a matter which, if established, assists a plaintiff in succeeding in discharging the burden that that plaintiff bears of proving breach. It is a matter which, if negated by the defendant, assists the defendant in preventing the plaintiff from discharging the plaintiff's burden of proving breach. But it is not a matter success on which is crucial to either party, because it is simply one factor among several to be considered in assessing the response of a reasonable man to the risk. 81 An application by this Court of the process by which a reasonable man's response to the risk is to be assessed operates as follows. 82 First, the risk of injury at least by slipping and falling was of a degree considerably greater than that sufficient just to cross the line separating the far-fetched and fanciful from the reasonably foreseeable. 83 Secondly, if the reasonably foreseeable risk came to pass, it was capable of having very serious consequences. Persons who slip in baths can kill themselves, and sometimes do. They can also break their necks and become quadriplegics, whether because of the direct impact of the fall or because of inappropriate handling just after they have fallen. The potential degree of injury in many of the instances across a full range of instances was grave. 84 Thirdly, the change made by the defendant to the hot water system and its conduct of the case make it safe to infer that there would have been no significant expense, difficulty or inconvenience in changing the hot water system before the accident. 85 Fourthly, the defendant pleaded in paragraph 6 of its Defence: "the Defendant says that as a government authority with a limited budget with which it is necessarily required to balance competing demands of individual client tenants and their visitors with other community interests, it at all times acted as reasonably as could possibly be expected of it in the circumstances."

Though the defendant's conduct in pleading this matter was entirely correct, it does not follow that it bore any legal burden of proof. It certainly called no evidence on the point. Nor, for her part, did the plaintiff. There being an evidentiary vacuum, this factor does not count for or against the plaintiff on the material fact which she bore the legal burden of proving, namely, breach of duty. So far as the plaintiff bore a legal onus of proving that there were no conflicting responsibilities, she did not discharge it, but it does not follow from that that there were conflicting responsibilities. Further, it is questionable whether the plaintiff did bear a legal onus of proving that the defendant did not have any conflicting responsibilities. The reasons for questioning that proposition are similar to those discussed above in relation to the expense, difficulty and inconvenience of alleviation. 86 The defendant's argument that because the trial judge failed to pay attention to the "calculus of negligence" as described in Shirt's case it should succeed fails, because when that "calculus" is considered, the outcome is adverse to the defendant.

Foreseeability in the remoteness sense 87 The defendant argued that the reasonable foreseeability test which Glass JA said must be satisfied in relation to remoteness was not satisfied. That test was that the plaintiff had to prove that the "kind" of damage suffered was foreseeable as a possible outcome of the "kind" of carelessness charged against the defendant. The defendant relied on Barwick CJ's words in Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 390: "the rarity of … an injury in the circumstances does not … deny the foreseeability of an injury of the class of which it forms one. That it is sufficient that the class of injury as distinct from the particular injury ought to be foreseen as a possible consequence of particular conduct in order to establish liability for damages for the particular injury is well established." The defendant also relied on Windeyer J's statement at 402: "Liability for nervous shock depends on foreseeability of nervous shock." The defendant argued that the "kind" of damage which the plaintiff suffered was a "psychological shock precipitating a faint". The defendant said that it was that consequence which had to be reasonably foreseeable. The defendant conceded that if that consequence were reasonably foreseeable, it could not complain if as a further (perhaps unforeseeable) consequence, the plaintiff fell and was injured. But the defendant argued that on no basis could it be said that a person in the position of the defendant could reasonably foresee as a consequence of the unsatisfactory operation of the hot water system that there would be "a psychological shock precipitating a faint". The defendant argued that while Dr Conrad could have foreseen it (by reason of forty years' professional experience, unsupported though it was by any relevant journal literature), Dr Blum said that the mechanism of the plaintiff's blackout was not "well known". 88 There is considerable artificiality, and some irrelevance, in these arguments. Barwick CJ in Mount Isa Mines Ltd v Pusey was dealing with a plaintiff who had witnessed the condition of a fellow employee after being severely burned by reason of electrocution. He said that it was reasonably foreseeable that negligence in relation to the misuse of the electrical equipment could cause severe burning to an employee, and that the sight of the burnt employee could mentally disturb another employee. The problem was that the particular mental disturbance which the plaintiff suffered was "a rare consequence or reaction". Barwick CJ met that problem by holding that the rarity of the particular manifestation of mental disturbance did not prevent it being reasonably foreseeable. Mental disturbance was reasonably foreseeable, and the mental disturbance actually experienced was one member of the overall class of mental disturbances. The present case does not throw up that problem, and Barwick CJ's solution of it is not material. 89 The observation of Windeyer J on which the defendant relied is irrelevant to the circumstances of the present plaintiff. She was not complaining of injury in the form of nervous shock or mental trauma. She was complaining of an injury not to her psyche but to her body. On the defendant's argument, she experienced a psychological condition which was a causal mechanism of the physical injury which she unquestionably suffered and for which she was suing. She does not fall outside Glass JA's test. The kind of damage she suffered (a broken neck) was reasonably foreseeable as a possible outcome of the kind of carelessness charged against the defendant. The likeliest mechanism by which that carelessness might cause her to break her neck was an instinctive movement away from the water, a slip during that movement, and a fall. The relevant mechanism by which the carelessness caused her broken neck was found by the trial judge to be different. If the defendant's argument based on that mechanism being a "psychological shock" is to succeed, it must be on some principle other than that stated by Glass JA, unless the expression "kind" of damage includes the causal mechanism by which the damage is suffered. No authority was cited which suggests that this is so. 90 The defendant did cite Hughes v Lord Advocate [1963] AC 837. That authority is against the defendant's argument. In that case it was said to be reasonably foreseeable that a negligently unattended and unprotected paraffin lamp in a street could result in physical injury in the form of burning caused by the knocking over of the lamp and the igniting of the spilt oil by the flame of the lamp. The pursuer in that case did not suffer physical injury caused by burning in that particular way. Instead the lamp was knocked into a manhole, the paraffin vaporised, the resulting gas was ignited, an explosion took place, and the pursuer was burned in consequence. The House of Lords held that the latter kind of damage was unforeseeable, unlike the former, but was of the same kind, and the pursuer recovered. Lord Reid said at 847: "This accident was caused by a known source of danger, but caused in a way which could not have been foreseen, and, in my judgment, that affords no defence". So here, the plaintiff's accident was caused by a known form of danger; even if the causation of the accident could not have been foreseen, that does not prevent recovery. To the present case may also be applied the following observation of Lord Morris of Borth-y-Gest at 853, quoting Lord Mackintosh in Harvey v Singer Manufacturing Co Ltd 1960 SC 155 at 172: "there was a duty owed by the defenders to safeguard the pursuer against the type or kind of occurrence which in fact happened and which resulted in his injuries, and the defenders are not absolved from liability because they did not envisage 'the precise concatenation of circumstances which led up to the accident'." 91 The defendant also referred to Kavanagh v Akhtar (1998) 45 NSWLR 588. The defendant criticised the use of the expression "direct response" at 601. However, nothing in the case, either as it stands or if corrected in the manner which the plaintiff desired, supports the defendant's argument. Indeed, at 600 there are various passages in Mason P's reasons for judgment adverse to the defendant's case. One is: "In Chapman v Hearse (1961) 106 CLR 112 at 120, the High Court approved the following passage from Haynes v Harwood [1935] 1 KB 146 at 156: 'It is not necessary to show that this particular accident and this particular damage were probable; it is sufficient if the accident is of a class that might well be anticipated as one of the reasonable and probable results of the wrongful act'."

A second passage is the following proposition derived from Commonwealth v McLean (1996) 41 NSWLR 389: "A wrongdoer is responsible for all damage of the same type or kind as that which was reasonably foreseeable, even if the particular damage, or its extent, were not reasonably foreseeable, or the damage occurred in an unexpected or unforeseeable manner: Commonwealth v McLean (at 403E), citing Chapman v Hearse (1961) 106 CLR 112 at 120-121."

A third passage is the quotation, as an illustration of that point, of the passage from Lord Reid's speech in Hughes v Lord Advocate quoted above. 92 Another difficulty with the defendant's argument is that even if the plaintiff did suffer a "psychological shock", and that was an expression which Dr Conrad used on occasion (for example, at Black 38Q, 39B and 39K), there was no evidence that the "psychological shock" was "psychological injury". Yet the plaintiff's argument depended on a distinction between the "psychological injury" supposedly caused by the rise in temperature and the physical injury caused by the fall. If the events of 7 November 1996 had taken place, but the plaintiff had simply slid gently into the bath without suffering any bruising, any strain or any broken bone, there is no reason to suppose that she would have recovered damages: she would not have suffered injury. As noted earlier, on the basis of Dr Conrad's evidence the trial judge found that the rise in water temperature experienced by the plaintiff "can cause a person to faint, especially a person such as the plaintiff who had low blood pressure". The evidence of Dr Conrad was summarised thus by the trial judge: "Dr Conrad described the mechanism of someone fainting. He said that a faint can be caused by a strong stimulus to nerves which acts on the vascular system dilating them and causing the person's blood pressure to fall. This results in a lack of blood supply to the brain with the effect that the person temporarily loses consciousness. Dr Conrad said that that reaction can be set off by any sudden stimulus; by a loud noise or a sudden horrifying sight or a rapid change in temperature especially to those people predisposed to faint. In relation to predisposition to fainting, while Dr Conrad said that he did not know of any scientific studies on the question, his experience is that people who tend to faint tend to have lower blood pressure. In Dr Conrad's view it was reasonable to say that a sudden rise of ten degrees in temperature would be an unpleasant stimulus and could cause someone to faint." 93 Dr Conrad said that if the only condition from which the plaintiff suffered after the water temperature rose and she fell was the faint, he would have expected her to regain consciousness "within ninety seconds absolute maximum two minutes". He did also say "a lot of these people are very dazed and frightened afterwards, they don't understand what's happened to them and may give the impression of being semi-conscious" (Black 43J-K). There was no evidence of any additional ill-effect, and so evanescent a condition is not injury.

The outcome on liability 94 It follows that all the challenges advanced by the defendant against the trial judge's reasoning on liability fail. If the outcome - recovery by the plaintiff of damages in this case - were so irrational as to suggest some concealed error in the reasoning which led to it, it might be necessary, subject to the possible rights of the parties to be heard further, to give yet further consideration to that outcome, despite the care and scepticism with which the defendant approached the task of exposing potential flaws in the trial judge's reasoning. However, though recovery by the plaintiff for a defect in so widely used a type of hot water system is at first sight surprising, on reflection it is less troubling. The precise problem affecting the plaintiff's hot water system, namely a sudden and significant rise in temperature, may have been less acute in other houses. The reasonable foreseeability of injury which must be imputed to the defendant depends, on the reasoning set out above, on the two complaints the plaintiff and her husband made: whether a conclusion of reasonable foreseeability should be drawn in the absence of complaints of that type need not be and is not now decided. 95 Accordingly, though it may be true that this case goes near the borderline between liability and non-liability, there is no sufficient reason to think that it crosses over it.

General damages 96 The trial judge awarded the plaintiff $120,000 under the head of general damages. 97 The defendant submitted: "The award of $120,000 for general damages was excessive; notwithstanding the serious injury that the plaintiff plainly suffered, and the ongoing consequences of some weakness in her arms, numbness in two fingers of her left hand, and some restrictions on her capacity to lift, it is to be noted that:- (a) she has returned to most of the activities of daily living (T84 line 55 to T85 line 55); (b) her physical relationship with her husband was 'not too bad' at the time of trial (T60 line 35); (c) by 27 January 1998, Dr McDowell (the treating neurosurgeon) (see Exhibit A) thought she was capable of 'a resumption of normal activities' and, by 3 February 1998 (see his 5 February 1998 report), she had got to a point of being capable of enjoying a vacation with almost no cervical pain - her neck ache was minimal and had not recently suffered headaches; that is, within about 13 months of the accident, notwithstanding the multiple surgery, and notwithstanding some ongoing disability, there was significant symptomatic and functional improvement. His Honour paid no attention to these important and relevant matters or, if he noticed them, gave them no sufficient weight and thereby fell into error. Additionally, the award of general damages is disproportionate to the extent of the harm. The Sharman v Evans ((1977) 138 CLR 563) injunction of moderation has been ignored." 98 Among the matters not mentioned in the submissions are the plaintiff's consciousness of the fact that she had narrowly averted the risk of quadriplegia; her depression due to loss of mobility and inability to participate in sporting activities she had formerly enjoyed; stiffness in the plaintiff's neck; scarring on the back of the plaintiff's neck; constant neck pain during waking hours; pain in the left elbow; back soreness, albeit soreness which has improved; headaches; and two episodes of significant surgery. The plaintiff had experienced four years of pain and suffering by the time of trial, and was likely to live about another forty years. There was medical evidence that some of the forms of pain from which she suffered were likely to continue for the rest of her life. The trial judge accepted the genuineness of the plaintiff's complaints. 99 In all the circumstances it cannot be said that the defendant has demonstrated that the general damages awarded are outside the range of a sound judgment.

Diminution in capacity to earn in future 100 The trial judge said: "Mr Lidden of counsel on behalf of the plaintiff made a claim for future wage loss for the plaintiff for twenty-three years to age sixty-five at $300 per week discounted on the three percent tables and with fifteen percent for vicissitudes. According to Mr Lidden on that basis the plaintiff should be entitled to the sum of, in round terms, $220,000. I am not prepared to allow that sum and I do not consider that a weekly loss for twenty-three years of a dollar amount is an appropriate way to compensate the plaintiff for her loss of earning capacity for the following reasons. Firstly, she had before the accident, only a limited earning capacity because, amongst other things she had few marketable skills. She did not even have a School Certificate and she has not worked now for many years. There is no doubt that the earning capacity that she did have before her fall has been significantly reduced and it is clear on the medical reports that she is no longer fit for any form of manual work. However, she may have some residual earning capacity particularly if she undertakes some form of re-training. I think it unrealistic to allow her $300 per week to age sixty-five because, in my view, with her limited employability and bearing in mind her age I doubt, even if she had not had her fall, whether she would have been in continuous employment from now until age sixty-five. I think the more reasonable basis to compensate her for her loss of earning capacity is to give her a sum which represents a buffer against her future loss of earning capacity and in this respect I allow the plaintiff $100,000." 101 The defendant submitted that this passage contained errors. " … [the] essential errors are: (i) there is no basis for adopting, for any purpose, the sum of $300 per week; (ii) there was evidence of the availability of any work for a woman with her low level of skill, and time out of the workforce; (iii) there was no basis for concluding that she would work to age 65, even if she could find work. In short, notwithstanding the plaintiff proved a physical impairment, she failed to call evidence from which it could be established that any physical incapacity might sound in economic loss ( Graham v Baker (1961) 106 CLR 340). The allowance of $100,000 as a global sum for future economic loss was grossly disproportionate to any loss of chance of income-earning activities by reason of her injuries and was plainly influenced by the plaintiff's ambit claim based on unproved assumptions." 102 It was common ground that the plaintiff intended to return to the workforce when her younger daughter went to high school in early 2000. It was also common ground that the plaintiff had worked enthusiastically between the ages of 15 and 22. 103 The defendant's complaint about the selection of $300 per week is unconvincing. The trial judge was likely to be aware of general wage trends for persons with the limited qualifications of the plaintiff, and the defendant has not demonstrated that the figure of $300 per week lacks congruence with those trends. 104 So far as the defendant complained of a lack of evidence that work was available for a person in the position of the plaintiff, the trial judge was entitled to conclude that the plaintiff, a resident of Sydney, would have been capable of obtaining many types of work but for her injury - for example, as a cleaner, or as a retail sales assistant, or as a carer for children. He was entitled to conclude that there was some chance of full time work, and a better chance of part time work. 105 The defendant in oral argument referred to various medical problems which the plaintiff had before the accident. Among these problems were impetigo, dizziness, a "crook back", menorragia, headaches, depression and low blood pressure. The defendant did not demonstrate that these problems were of such a type, or cropped up to such a degree or with such frequency, as to reduce to so low a level the chance of the plaintiff obtaining work after 2000 that the lump sum awarded was rendered appellably excessive. 106 The defendant's suggestion that there was no basis for concluding that the plaintiff would seek to work until she was sixty-five ignores her evidence that she intended to go back to work in 2000, and also ignores the lack of any temporal qualification on that activity. 107 The defendant's complaint about the award of $100,000 for diminution in capacity to earn in future is rejected.

Past and future care 108 The trial judge said: "The plaintiff claims, amongst other things, for domestic assistance according to the principles in Griffiths v Kerkemeyer . She said that after her second surgery, her husband and her children were doing all the housework. She said that they now do the things which she used to do. She said that they make their own beds, do the vacuuming, bring the washing in, that her husband makes their own bed and that if her shoulders were aching too much that her husband would vacuum and mop and mow the lawns, all of which things she used to do. She said that she used to do the shopping before her fall but now can do so only on a reduced basis. She says that sometimes she will carry bags that are not too heavy, sometimes her husband brings the shopping bags in. Mr Watkins gave evidence that for the first six months after her fall and operation the plaintiff could do nothing for herself and that he bathed her and dressed her, that he also made all the meals and assisted the plaintiff in eating her meals. During that period he said that he spent about two hours per day helping the plaintiff with her personal tasks such as bathing and dressing and, in addition, did the washing, the housework for about four to seven hours per day. He said he thought he initially was spending between ten and twelve hours per day in either assisting the plaintiff directly, or attending to duties in the home that she would have normally performed herself. Mr Watkins said that he was a tow truck driver and managed a vehicle repair shop. He said initially he took holidays to help the plaintiff but was unable to return to work because he could not leave two children effectively unattended and resigned his job. He is now in receipt of a carer's pension to look after the plaintiff. Mr Watkins said that the plaintiff has had some recovery in terms of being able to do things around the house and that she mostly washes, dresses and feeds herself. He says that he still helps her to an extent with dressing. He said that his role in the housework has continued and that he prepares the meals, does the shopping, the washing, the gardening and takes the children to school. He estimates that he does between four to six hours a day of this kind of work and has not returned to work since the accident. There was some cross-examination of Mr Watkins about those matters but not very much. He was cross-examined on how often he takes the children to school and it appeared to me that there was some overlapping in the accounts that the plaintiff gave about taking the children to school and the account that Mr Watkins gave. In that respect, while I thought that Mr Watkins was an honest witness, I think that he may be inaccurate to a degree in that it appears to me on the little evidence I have that he may have slightly overstated the amount of assistance he gives the plaintiff and the amount of work he does in the house. However, on any view it is clear that he does a significant amount." 109 Later he said: "In terms of item seven past domestic assistance the plaintiff has claimed firstly for twenty-six weeks, that is to say the six months after her accident, eight hours per day, seven days per week at $15 per hour, a sum of $21,840. Mr Barko of counsel for the defendant very realistically did not dispute the reasonableness of $15 per hour and I allow that sum of $21,840. In terms of the second part of item seven the period between six months after the plaintiff's fall and today, there has been a claim for four hours per day for seven days a week at that same rate, $15 per hour. Because I believe that Mr Watkins has slightly overstated the amount of assistance he renders, I think it reasonable to allow three hours per day for seven days per week at $15 per hour for three point three years, that is to say $54,054 giving a sub-total of $75,894 for domestic assistance from the date of the fall to date. Item eight is an allowance for future domestic assistance. In that respect I note that on the life tables the plaintiff has a life expectancy of forty years. I think it reasonable to allow three hours per day for seven days per week for forty years discounted on the three percent tables and reduced by fifteen percent for vicissitudes. There are varying factors in the future which may increase that amount and which may decrease it which I have done my best to take into account. The fact that the plaintiff's children will eventually leave home and leave less housework to be done is one factor which might decrease that figure, however, the fact that on the medical reports the plaintiff's condition is likely to get worse may counteract that effect. Accordingly I allow for future domestic assistance $312,045." 110 The defendant submitted: "His Honour plainly misunderstood the evidence; the plaintiff's husband spoke of 'looking after (his) wife' two hours a day 'actually, personally, physically on my wife' (T100 line 5) in the first six to seven months after the accident. Some of that period of time (four or five weeks) involved two periods in hospital when no need is demonstrated by her circumstances, nor proved by her evidence or that of her husband. South Western Sydney Area Health Service occupational therapy notes, 21 November 1996 (Exhibit A), demonstrate that at the time of discharge she was showering with assistance (not in need of total care for that activity) and was able to toilet independently. She was ambulatory. No doctor, nor any occupational therapist, proved in the evidence a need for any activities of personal hygiene, dressing, or the like, as being needed by the plaintiff after discharge from hospital. The care needed by the plaintiff, on the evidence, is restricted to a few weeks after each hospitalisation. What her husband or daughters in fact did does not prove reasonable need. With respect to services provided to her husband and her daughters: (a) Sullivan v Gordon ((1999) 47 NSWLR 319) is wrong; (b) the loss compensated for by His Honour's award above two hours a day for a few weeks after each period of hospitalisation is either: (i) a consortium claim by the husband; (ii) a third party relational claim by the daughters; (iii) and neither of those claims is (and in respect of the children's claim, never has been) permissible, and the characterisation of that loss as the plaintiff's loss is neither self-evident nor logical. The plaintiff's evidence at T84 and 85 was either overlooked or misunderstood by His Honour; it denies both the need and the quantification by His Honour at 21 hours per week." 111 It is to be noted that the submission that Sullivan v Gordon was wrong was only formal: the defendant did not seek leave to reargue its correctness. 112 On future economic loss, the defendant submitted: "The submissions made immediately above are repeated; in addition, to allow 21 hours per week for approximately 40 years must proceed from a misunderstanding of the evidence referred to, or oversight of that evidence, and is insupportable without medical or para-medical evidence of the present or likely future need." 113 The evidence to which the defendant referred at pages 84 and 85 of the transcript was evidence summarised by the defendant thus: "She vacuums, dusts, sweeps, cleans the hand basin and toilet, does some gardening, sweeps the paths, drives the daughters to school, picks them up, takes her daughters shopping, and there is evidence from her husband that he sometimes assists with the shopping but by no means all the time."

The defendant submitted that to allow three hours per day for seven days per week was far too high because the plaintiff had done after the accident substantially the things which she had done before the accident. The defendant submitted: "One would at the very least reduce the figure allowed by two-thirds or by such other mechanism or proportion that your Honours as a matter of judgment come to." 114 In fact the evidence of the plaintiff was much more qualified than the defendant submitted. She said that she could do "some forms" of housework "occasionally". She said that she did "some gardening" when "I feel able to".

The first six months 115 So far as the first six months after the accident are concerned, the figure of $21,840 may be too high to the extent that it includes periods in hospital. During those periods the bulk of the care was carried out by hospital staff. However, it is open to infer that the husband cared for the plaintiff to some extent while she was in hospital; that appears to be the modus operandi of modern public hospitals, and not only public hospitals. 116 The criticism advanced by the defendant of the trial judge that he misunderstood the husband's evidence requires it to be set out. "Q. In that total period which we've heard 6 or 7 months, I think, of that order, what, if anything, was she able to do for herself? A. To start with next to nothing.

Q. - such as bathing and so on. Who was doing those for her?

A. I was bathing her. I was dressing her, assisting with meals and doing all --

Q. You mean assisting with helping her eat, you mean?

A. Well, I was making the meals and assisting to feed them to her. She'd have a little bit of difficulty there at first lifting her arms et cetera or holding things. Her grip was a bit weak in one of her hands. All the aspects of basic living.

Q. And over that 6 or 7 month period how many hours a day would you say you were spending looking after your wife?

A. Probably 2 hours a day actually, personally, physically on my wife.

Q. Before the accident - the household domestic activities, mopping, vacuuming, washing, cooking, all of those things, who did them?

Q. And in this 6 or 7 month period who was doing those things?

Q. Can you tell me how many hours a day that took as well as the two hours you spent actually on her?

A. At first when I didn't know what I was doing it was probably taking me 10 or 12 hours a day but I got it down to 4 or 5 now.

Q. I'm dealing with this period 6 or 7 months after the accident, do you understand?

Beyond one clarificatory question, that evidence was not the subject of cross-examination. 117 The defendant's submission appeared to be that allowance should only be made for assistance for two hours per day in the few weeks after each hospitalisation. The defendant estimated that as equating to about $5,000; alternatively it was prepared to allow two hours per day for thirty weeks at $15 per hour, which produced a figure of $6,300. 118 The defendant's stress on the two hours per day spent by the husband "actually, personally, physically" looking after the plaintiff as the upper limit for recovery would lead to an unduly restricted outcome in several ways. 119 First, some of the household domestic activities carried out by the plaintiff before the accident and by her husband after it which were distinct from the two hours a day of personal care were carried out for the benefit of the daughters. Their food had to be prepared, their clothes washed, their parts of the house cleaned. Sullivan v Gordon decided that the cost of carrying out those activities was a legitimate head of damage. The defendant submitted that Sullivan v Gordon was factually distinguishable on the basis that there was no-one who could care for the plaintiff's child in that case apart from the plaintiff, and the child was totally dependent on her. It is true that the facts were different, but the statements of principle cover the present facts. 120 Secondly, some of the household domestic activities carried out by the plaintiff before the accident and by the husband after it were carried out for the benefit of the husband. Sullivan v Gordon contains dicta to the effect that that too is a head of recoverable damage: see at [6] per Mason P. 121 Thirdly, some of the household domestic activities carried out by the plaintiff before the accident and by the husband after it were carried out for the benefit of the plaintiff herself. The cost of that must be a recoverable head of damage. 122 Fourthly, three judges in the High Court which decided Van Gervan v Fenton (1992) 175 CLR 327, namely Brennan, Deane and Dawson JJ, stated two relevant propositions. The first was that where domestic services were undertaken, as part of mutual give-and-take by person in a marital relationship, they cannot be converted into additional services necessary to attend to the accident-caused needs of an injured plaintiff in circumstances where they would have been performed in the same way and to the same extent in any event. The second proposition was that those services would be taken out of the area of the ordinary give-and-take to the extent that the injuries to the injured plaintiff precluded him or her from providing any countervailing services; to that extent, the continuing gratuitous services provided by the other person should be treated as additional services which have been or will be provided by him or her to look after the accident-caused needs of the plaintiff. The first proposition might well exclude recovery for certain of "the ordinary household chores", as the plaintiff's husband described them. The second proposition appears to negate that outcome so far as matters like gardening are concerned to the extent that the plaintiff can no longer provide countervailing services. 123 In all the circumstances there appears to be no justification for reducing the $21,840, except possibly in relation to the periods while the plaintiff was in hospital. However, a reduction to allow for the no doubt lower level of services provided by the husband while the plaintiff was in hospital would be tinkering in view of the fact that the husband probably provided some services to the plaintiff in hospital and had to provide services for himself and the children in any event at these times. Hence no reduction should be made.

May 1997 to trial 124 The defendant submitted that the mere fact that services were provided by the husband did not establish that the plaintiff had a need for them. Again, the evidence of the plaintiff and of some of the doctors supports the conclusion that there was in truth a need. The husband's evidence on this point was: "Q. So from that time to the present time she's taken over matters of personal care such as washing herself and feeding herself and dressing herself and things of that nature, correct? A. Not 100 per cent.

A. Well, I still have - she has difficulty with some clothing --

A. Yes and sometimes pulling different garments over her head and taking them off.

Q. Putting it to one side for a moment that limited assistance that you provide, she's otherwise independent of personal care, isn't she?

Q. But your role in doing housework, has that continued?

A. Meal preparation, washing, ironing, cleaning, garden chores, shopping, children to school.

Q. How many hours a day would you say nowadays you're doing on these sorts of household tasks?

There was no cross-examination on that evidence. 125 The trial judge reduced the husband's figure of four-six hours to three hours for the sound reasons he gave. The defendant contended that the reduction should have been much greater. For at least part of the relevant period there are reasons for thinking that even three hours may be a little high, but as explained below it is simpler to make an adjustment to the figure for the period after the trial than to seek to adjust this figure. Apart from those matters to be referred to below, the figure selected does not appear so wrong as to justify interference with it by this Court.

After the trial 126 Here again the trial judge selected three hours. The defendant contended in effect that the correct figure should have been one hour, on the assumption that all its other submissions were rejected. The trial judge's approach in this area appears more vulnerable than in the earlier two. Though the plaintiff's condition was expected to worsen in some ways, the fact is that it had actually improved in others (for example, back soreness) and was expected to improve in yet others (for example, improvement in neck function). Further, daughters aged between 11 and 8 in 1996 would be likely to tend to create increasing amounts of housework until they reached the age of about 17, at which point even if they continued to live with their parents, they would tend to make less mess and to spend less time at home. Further, the difference between what the plaintiff said she did in terms of driving the children to school (apparently routinely) and what the husband said she did (not very often) suggests that her need is less great than he perceived it to be, and that by the time of the trial there had been a significant improvement in her condition. Similarly, though the plaintiff had been advised to limit her neck movements while shopping, she is in fact capable of shopping to some significant degree. Those signs of improvement cast a doubt over the trial judge's reasoning not only for the period after the trial, but also for at least part of the period from May 1997 up to the trial. However, it seems simpler, given the indeterminacy of the exercise, to allow for the difficulty by leaving the figure for the May 1997-trial period untouched, while reducing the figure for the post trial period. 127 An appropriate course is to reduce the trial judge's figure for the post trial period by one-third. That makes it $208,030 instead of $312,045. That in turn produces a verdict of $532,908.

Orders 128 On the above reasoning, the defendant has enjoyed success to a significant degree in gross dollar terms, though the success is less in percentage terms. However, the bulk of the written and oral arguments were devoted to issues of liability on which the defendant failed, and the defendant also failed on all quantum questions except one. In the circumstances the defendant should pay half the plaintiff's costs of the appeal. 129 The orders proposed are as follow:

3. In lieu of the verdict of the trial judge, there will be a verdict for the plaintiff in the sum of $532,908 with judgment accordingly with effect from 13 September 2000.

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

5. It is noted that the costs order made by the trial judge will stand. 130 HODGSON JA: I agree with Heydon JA.

(1) (1996-1997) 188 CLR 313; 146 ALR 572; (2) [2000] HCA 56; 75 ALJR 1; 176 ALR 137 (3) (1979-80) 146 CLR 40, 47-48 (4) supra

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