PELLEY v MAITLAND BENEVOLENT SOCIETY

LOWER COURT District Court JURISDICTION : LOWER COURT DC 410/01 (Newcastle) FILE NUMBER(S) : LOWER COURT Sidis DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40338/2003 DC (Newc) 410/2001

MASON P BEAZLEY JA SANTOW JA

Thursday 16 September 2004 Susan-Ann PELLEY v THE MAITLAND BENEVOLENT SOCIETY JUDGMENT 1 MASON P: The appellant injured her back at the workplace. She recovered damages in the District Court based on her employer's negligence. This appeal challenges particular components of the award as well as the 25% deduction that was based on a finding of contributory negligence.

Facts 2 The appellant was employed by the respondent as a housekeeper-cleaner at its aged-care facility called Benholme in Maitland. The facility is a complex of five main buildings accommodating 79 residents, most of them living in single rooms. 3 There were seven or eight cleaners generally employed at Benholme. The appellant worked varying hours on a casual basis and she was the only cleaner rostered to work on the morning of Saturday 23 September 2000 when the accident occurred. Other staff then on duty included personal carers, but (as indicated below) they did not usually assist in cleaning or bed-making duties. 4 All bed linen was changed regularly each Friday, on which day beds were fully remade. On Saturdays the appellant's role was the more limited one of cleaning up rubbish and straightening or making beds. Beds would only be changed if there had been a mishap. 5 One of the residents was Mr Cousins, a stroke victim who had lived at Benholme for more than 12 years. He brought his own bed to the home when he arrived. It was heavier than the beds generally used and there were no castors on its wooden bed legs until after the appellant's accident. It rested on carpet. Unlike the layout of other rooms, Mr Cousins' bed was positioned with one side against a wall. 6 While performing her regular duties, the appellant endeavoured to move the bed away from the side wall so that she could more easily remake it. Mr Cousins was not in the bed at the time. The space between the foot of the bed and the adjacent wall was only about 12-18 inches wide. The appellant took up a position at the end of the bed, apparently near the left hand corner. She leant to her right and attempted to lift and pull the end of the bed, holding it close to the floor. The combination of twisting and endeavouring to lift and pull a heavy bed from that position caused an immediate acute injury to the appellant's lumbar spine. 7 There was an issue at trial as to whether or not Mr Cousins had asked the appellant to make his bed. He denied that he had done so and his evidence was preferred to that of the appellant. However, nothing really turns on this, because there is no suggestion that the appellant was doing something outside her normal duties in attending to the bed. 8 The appellant's supervisor, Ms Wakeham, gave evidence that she had told the appellant that Mr Cousins' bed was "a heavy bed and it's awkward to make" (Black 84). The appellant denied this. The supervisor's evidence was implicitly accepted, but on the basis that the warning was inadequate. 9 The appellant had received some general instruction about lifting techniques, especially involving the lifting of patients. She agreed that she could have called for assistance from the carers, but said (Black 46): I would've had to wait and then I would've got into trouble for calling for a carer to come and help me make the beds they were my responsibility.

10 The trial judge (Sidis DCJ) found that the injury was caused by the employer's negligence. This conclusion, which is not in dispute in the appeal, stemmed from particular findings that together established want of reasonable care in the provision of a safe system of work. The findings included:

• The employer knew of the unusual weight and location of Mr Cousins' bed and that it rested on carpet and was not on castors.

• The risk presented was easily remediable by placing castors on the bed (as happened after the accident) or by the provision of a permanent warning sign on this particular bed.

• There had been no assessment of the risk to staff stemming from these matters.

• While there had been general education about safety issues concerning lifting generally, the supervisor's instruction and warnings referable to Mr Cousins' bed were inadequate.

• There had been general instructions to seek assistance before moving heavy objects, but the employer's system of providing such assistance was inadequate. The appellant was the only cleaner working on a Saturday morning. The carers whom she might have called upon for help were not readily available and were generally reluctant to assist in the performance of cleaning tasks.

Contributory negligence 11 The appellant raised a cluster of challenges with respect to the finding of contributory negligence and its apportionment at the level of 25%. In brief, she submitted that the finding was not justified, the reasons were inadequately stated and the 25% apportionment was too high. 12 It was common ground before us that this was an issue on which the employer bore the onus and that it required to be addressed in the context of the finding of negligence against the employer. 13 The learned trial judge expressed her reasons as to contributory negligence as follows: As far as contributory negligence is concerned, the plaintiff was indeed given instruction in lifting as recently as July 2000. She was provided with a manual that described methods of safe lifting. She did not lift in accordance with those instructions. She has been a long term employee of the defendant and she was familiar with Mr Cousins' room and the nature of his bed. Her obligation in my view was to assess the situation to decide first if it was possible to remake and tidy the bed without moving it and if not to seek assistance. I therefore find the plaintiff liable in contributory negligence and I assess the extent to which her negligence contributed to the damage which she suffered at twenty-five percent.

14 The nub of the appellant's complaint is that the judge failed to advert to a critical issue in cases such as the present where contributory negligence is raised by an employer that has itself failed to discharge the obligation to provide a reasonably safe system of work. 15 It is well established that in discharging its duty to take reasonable care to avoid injury to its employee, an employer is bound to have regard to any risk of injury that may occur by reason of an employee's inadvertence, inattention or misjudgment in performing allotted tasks (McLean v Tedman (1984) 155 CLR 306). This is the proper point of departure when considering issues of contributory negligence in cases such as the present. In McLean, Mason, Wilson, Brennan and Dawson JJ said (at 315): The issue of contributory negligence has now to be approached on the footing that Brambles failed to discharge its obligation to provide a safe system, that is, to take appropriate precautions against the risk of injury arising from the motorist's negligence and the employee's failure to observe an oncoming vehicle as he carried out his allotted task. The question is whether that failure should be characterized as mere inattention or inadvertence or whether it amounts to negligence, there being a well recognized distinction between the two. It is accepted that in considering whether there was contributory negligence by an employee in a case in which the employer has failed to provide a safe system of work, the circumstances and conditions in which he had to do his work must be taken into account. And the issue of contributory negligence is essentially a question of fact. As Windeyer J observed in Sungravure [ Pty Ltd v Meani (1964) 110 CLR 24 at 37] , when an employee in a factory sustains injury, the jury in considering contributory negligence may have regard to "inattention bred of familiarity and repetition, the urgency of the task, the man's preoccupation with the matter in hand, and other prevailing conditions". It is then for the tribunal of fact to determine whether any of these things caused some temporary inadvertence, some inattention or some taking of a risk, "excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man". His Honour went on to reject the suggestion that the approach applicable in the case of injury sustained in a factory was inapplicable to activities elsewhere, specifically referring to activities upon the highway.

16 In Sungravure, Windeyer J emphasised that the issue of the plaintiff's contributory negligence was a question of fact. He characterised the relevant distinction in the following terms (at 37): In the press of affairs anywhere a need to act promptly may sometimes lead to something being done, which has unfortunate results, but which is attributable to an error of judgment rather than a blameworthy want of due care.

17 These principles were applied recently in Fuller v New South Wales Department of School Education and Training [2004] NSWCA 242. See also Boyded Industries Pty Ltd v Canuto [2004] NSWCA 256. 18 The respondent employer cites well-known passages in Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529 and Liftronic Pty Ltd v Unver (2001) 179 ALR 321 that urge caution in appellate review of a contributory negligence apportionment. In my view, the appellant is correct in pointing out that her challenge to the finding of contributory negligence raises a question logically anterior to that involved in apportionment. It is one of fact, albeit that the line may be difficult to draw in particular cases, as evidenced by the split High Court decision in McLean's Case. 19 The reasons of the primary judge leave one in doubt as to whether the presently critical issue was addressed. But what is clearer is that the conclusion adverse to the appellant on this issue rests most uneasily with a particular finding of her Honour as to the employer's negligence, namely: The plaintiff had a heavy workload on Saturdays and it is not improbable that she decided that the quickest method to tidy the bed was to move it away from the wall and that she overlooked the warnings she had received by reason of the education in lifting in her haste to complete her tasks.

20 In light of this finding, when it is recognised that the "warnings" and the "education in lifting" here referred to had earlier been held to have been inadequate, one is in my view driven to the conclusion that the employer failed to establish contributory negligence according to the standards in Sungravure and McLean. 21 I would uphold this part of the appeal and set aside the deduction based on contributory negligence.

Damages for non-economic loss 22 Judge Sidis assessed non-economic loss at 25% of a most extreme case. This translated into an award of $61,062.50 for this head of damage. 23 The appellant submits that a proper award should have been in the range of 35%-40%. While she suggests that "perhaps the trial judge was unduly influenced by her adverse view of the appellant as a witness" (Orange 17), her ultimate submission is that the award for non-economic loss was simply outside a proper range having regard to the primary facts. 24 My mind has fluctuated on this ground of appeal, but at the end of the day I am unpersuaded that the award is so low as to betoken error. 25 The appellant suffered no symptoms of back injury before the accident. Before her injury she had enjoyed babysitting her grandchildren, sewing, gardening and dancing. She undertook all of her own housework. She was aged 47 at the date of trial (February 2003). 26 The injury caused excruciating pain in the low back and left leg. Her employer's registered nurse gave her pain killing medication, but she was unable to continue working that day. She attended hospital and, after visiting her general practitioner the following Monday, she took two weeks sick leave. She returned to selected duties in mid-October, but found that she could not continue her work. In October she was referred for an MRI scan and then to Dr Spittaler. 27 In January 2001 Dr Spittaler undertook a discectomy. There was some improvement in the back condition and the appellant returned to work on light duties of 10 hours a week in March 2001. She was still taking medication and doing little housework. She was also having hydrotherapy and supervised physiotherapy at a gym. She could do some very light housework, but continued to receive assistance from her husband. By the end of March 2001 she was very depressed and irritable. In consequence she separated from her husband for about four months. At this stage she was driving five or six kilometres a day to work and back, but was finding that by the end of the day the condition of her back was much worse, with pain in her left leg. 28 Dr Spittaler referred her to Dr Russo for pain management. Three nerve blocks were undertaken and they provided some relief for about one month each. The symptoms continued without abatement until March 2002 when a spinal cord stimulator was inserted. The particular procedure was very painful, but the outcome provided some relief with the stimulator relieving both back and leg pain. 29 The appellant returned to work for a period, but found it too stressful and painful even though she was using the stimulator. At Dr Russo's suggestion she ceased work in October 2002. Judge Sidis found it reasonable that the appellant should not return to cleaning work (Red 35). 30 The appellant said in evidence that the stimulator had been working quite well (Black 25). She accepted in cross-examination that there were signs of some improvement (Black 31, 34) although there were still "good days and bad days" (Black 32). At the time of trial she was continuing with a gym program three to four times a week. There was also hydrotherapy and continuing medication. She said that her pain varied from day to day. 31 The appellant said that she was now fit for part-time light work. She could drive occasionally, but not for more than about 20 minutes before discomfort. Her husband did the heavy housework. She no longer went to clubs. She was receiving counselling for depression. 32 This evidence and the medical reports, particularly that of Dr Millons, arguably attest to a higher level of continuing disability, pain and discomfort than is reflected in the judge's assessment of 25% of a most extreme case. But the issue is complicated by several factors. 33 One factor is the unchallenged finding of her Honour, based in part upon seeing the appellant testify, in part upon videotape evidence inconsistent with the appellant's testimony, that the appellant deliberately exaggerated her condition when she presented to various doctors and as a witness in court. The doctors' conclusions in the various medical reports were significantly based upon the accuracy of histories provided by the appellant. 34 Another factor that possibly explains her Honour's conclusion is the finding (Red 35) that the injury aggravated a pre-existing condition of the appellant's spine, so that an asymptomatic condition became symptomatic. This suggests the possibility that not all of the post-injury pain should be laid at the tortfeasor's feet. In response, the appellant submits that this factor should be disregarded because it is an issue on which the respondent bore the evidentiary onus and because the reasons of the trial judge do not mention this factor in the present context. 35 The appellant did not challenge the adverse finding as to credibility referable to the centrally-important issue of her description of the nature and intensity of her ongoing back symptoms. But she invited this Court to look at the primary facts as found by the trial judge and to conclude therefrom that the damages for non-economic loss were appealably inadequate. She points to her Honour's conclusions that: The plaintiff is moderately disabled by her back condition and … she may in future suffer from time to time depending upon her physical condition and her level of activity from aggravations by reason of the condition of her spine. She will need to exercise caution as far as her back is concerned for the balance of her life. 36 The appellant further pointed to the chronology of significant medical treatment required, particularly in the year or so after the accident. 37 Reliance was also placed upon the findings of disability and loss of amenity implicit in the awards of $113,000 for treatment expenses ($10,000 being for future treatment) and $31,800 for domestic assistance. The latter was based upon a finding that her back is such that she will not be able to do heavy housework and that she required ongoing care of two hours per week for such assistance. 38 At one point in her reasons, Judge Sidis said that Dr Millons' conclusions as to the appellant's condition in January 2002 most closely coincided with her own (Red 34). The appellant embraced this finding, pointing to various conclusions stated by Dr Millons in two reports each dated 9 January 2002. In the shorter report (Blue 105) he recorded: Ongoing complaint of disabilities include pain, discomfort, restriction of movement, loss of strength in the back. That is all quite reasonable. There is reported to be an inability to work as a carer in any capacity. That is also reasonable. There is reported to be general pain, discomfort, restriction of movement to her normal social, domestic, sporting, recreational and other activities. Mrs Pelley was never sporty but the rest of that statement is reasonable. … She does not need ongoing physiotherapy at this stage. That has never helped and is unlikely to do so on a maintenance level. She clearly needs ongoing medication. I cannot really comment on the cost claimed.

39 In the longer report of that date (Blue 107) Dr Millons gave the following opinion: Mrs Pelley appears to have some genuine mechanical low back pain which could be explained on the basis of some degenerate changes in the lower lumbar region. It appears that in the incident on 23.9.00 there may have been some internal disruption of a degenerate L5-S1 disc giving rise to low back pain and left sciatica. Conservative treatment failed to alleviate her symptoms and investigations confirmed problems at the lumbosacral level. Dr Spittaler's decompressive surgery that was performed some four months down the track did bring with it a downturn in her symptoms no doubt due to the fact that pressure was taken off of the emerging S1 nerve root. Mrs Pelley returned to work a couple of months later on light duties and was coping with those light duties. The Rehabilitation program that appears to have been set in place was rather vigorous and it was perhaps a little unwise for her to be doing resisted weight work. That seems to have brought with it a return of her left lower limb symptoms and they have continued since that time. Mrs Pelley has had further investigations. The MRI confirms the presence of an osteophytic ridge/disc bulge at L5-S1. There is some minimal scarring in the region. Her current presentation is a mixture of the organic and the non-organic. The organic is the genuine pathology that has been demonstrated at the lumbosacral level. The non-organic is the global reduction in sensation through the left lower limb and the anomalous straight leg raising tests. There is no convincing evidence of any frank sciatic nerve root irritation. Treatment to date has failed to alleviate her symptoms and in the light of her ongoing pain, which is impacting moderately on the normal activities of daily living, there is an indication for her to proceed to the next stage of pain management. She will have a trial of a dorsal column stimulator and if that brings about a downturn in her symptoms then it would be reasonable that she proceed with a formal insertion of the dorsal column stimulator. If her pain levels could be reduced to a degree then she could perhaps be advised to undertake a regular active exercise program to try and improve abdominal and spinal muscle tone and strength and lessen irritability in her back. Weight reduction is also important and she is aware of that. I would accept for the moment that she is unfit to return to work as a residential care worker and I can foresee considerable difficulty in returning to such a position. If her pain could be modified and her activities increased then perhaps that will be an appropriate time for her to undergo a formal vocational and functional assessment to see if there might be some suitable avenue of employment along which she might be directed. For the moment I would accept that work in any capacity is not an option. The prognosis is looking poor and continuing problems would appear likely.

40 These reports were given before March 2002, when the appellant had a spinal cord stimulator implanted. There was evidence that this provided a degree of relief, such evidence again being complicated by issues as to the appellant's credibility. 41 On 7 August 2002 Dr Millons reported on the appellant's condition in light of these and other developments (Blue 114). He observed that there had been some reduction in her medication. The history that she gave him when interviewed on 6 August 2002 included the following: She feels that the dorsum column stimulator is helping her pain. She cannot sleep with the stimulator on because she does not like the tingling effect it gives her. She copes with that during the day time. Pain seems to increase at night as a result of her not using the machine. She has fallen over on three occasions when her left leg seems to have given out on her, particularly when the stimulator is on "high". She has bruised herself when she has done that but done no major damage. She is due to be reviewed by Dr Russo in a couple of days about that problem. Mrs Pelley is troubled by continual pain in the lower back which radiates through the left leg to the great toe associated with numbness and pins and needles. Symptoms in the leg are generally less than they were. Pain wakes her at night and she has to get up and walk around several times at night. Her back is stiff first thing in the morning. Sitting for half an hour increases her symptoms. She finds standing aggravating. Bending increases her symptoms. She has problems leaning at a sink to wash or wash-up. She takes care with lifting. She tries to go for a walk every day around the yard. Jarring increases her back pain. She rests up in the day time. She does not drive much. She has a manual car which she finds aggravating. She gets cramps in both legs at night.

42 Dr Millons examined the appellant, reviewed her x-rays and expressed the following opinion: Mrs Pelley continues to have some symptoms from her lower back. She has only had a modest outcome from the results of surgery to clear the L5-S1 disc. She has had a modest result from the insertion of the dorsum column stimulator which has cut down her analgesic intake which can only be good for her. She should continue to use the stimulator. She is about to start some physiotherapy supervised hydrotherapy which might start to improve her general fitness levels. She would benefit from weight reduction and some exercises to improve abdominal and spinal muscle tone and strength and perhaps lessen irritability in her back further. Weight reduction may not be easy to achieve. Her presentation remains a mixture of the organic and the non-organic. The organic is the pathology that has been demonstrated at the lumbosacral level which has not been greatly relieved as a result of surgery. The non-organic is evidenced by the non-specific sensory findings through the left lower limb and the anomalous straight leg raising tests. I think it reasonable that she go along with the Fit for Work program that has been initiated for her. Perhaps if her symptoms lessen further there may be a case for her to again contemplate an attempted return to work on part-time, light work. I would accept that she is only suited to work of a light, part-time semi-sedentary nature perhaps two hours a day, five days a week. As her confidence and fitness levels improve so too might that work capacity. I would see no indication for any further investigation or surgical intervention. Mrs Pelley's ongoing partial capacity would appear to be as a result of the incident on 23.9.00 which appears to have caused a substantial aggravation of some pre-existing degenerative changes at the lumbosacral level. The prognosis is guarded and continuing problems would appear inevitable.

43 Judge Sidis observed that Dr Millons was not asked to comment on the appellant's condition following the video taping of the appellant on 16 and 17 September 2002 (Red 34). I read this as a significant qualification, in light of her Honour's conclusions (at Red 26-8, 33-4) based upon the video adverse to the appellant's credibility and her case generally. 44 There are further indications that her Honour was not prepared to accept in full the history upon which Dr Millons expressed the conclusions in his latest report. First, the global references to Dr Millons' reports (at Red 34) were followed by specific findings that the appellant had consciously and deliberately exaggerated her condition with a view to misleading and deceiving medical advisors and the Court into accepting that she was suffering from a very significant level of disability approaching invalidism (Red 35). Secondly, when her Honour turned to address the issue of future medical expenses (claimed by the appellant at about $200,000) she made the following remarks (Red 36): These are the sort of expenses that one might expect to award to a person of considerably greater disability than that which I have assessed to be the disability of the plaintiff. My suspicion is that the use of the stimulator will decrease once this litigation is concluded, I see no reason therefore to make provision for any replacement of the stimulator or for supplies of batteries and other materials. There will be a need for physiotherapy and continued hydrotherapy to allow the plaintiff's physical condition to be improved in the short term. After that the evidence is that her medical needs will continue to reduce. There will be a need for medication. I am not satisfied of the need for special equipment in the nature of a new bed or a recliner chair. I have therefore provided the plaintiff with a moderate allowance for her ongoing future out-of-pocket expenses in the sum of $10,000.

45 Taking these matters into consideration, I am unpersuaded that this component of the award of damages was appealably inadequate.

Future economic loss 46 Judge Sidis allowed the claim for past economic loss in full. The appellant had been out of work for most of the time since the date of the injury (23 September 2000) and the trial (December 2003). Past loss of income was allowed on the basis of the agreed past average weekly earnings for 122 weeks in the sum of $43,310 (ie at the rate of $355 net per week). 47 Her Honour dealt with future economic loss in extremely terse terms. She said: I have no doubt that the plaintiff has greater capacity for employment than she is prepared to concede, although she is indeed disadvantaged by her inability to take heavy work, by her age and her geographical situation. In those circumstances I have allowed one quarter of the amount claimed without further discount in the sum of $56,000.

48 At trial it was agreed that pre-injury earnings were in the vicinity of $350-$355 per week, based on an average of 20 hours work per week. 49 In this Court, the parties are agreed that the mathematics of this award are explicable on one or two alternative bases. Regrettably, the researches and recollections of trial counsel have failed to indicate which of the two was put to her Honour at trial and her Honour's reasoning offers no assistance on this matter. 50 The first alternative, advanced by the appellant, is that the judge awarded one-quarter of $224,000 representing a loss of $420 per week for the rest of the appellant's working life and discounted in the usual way, including for vicissitudes. In my view, the difficulty with this approach is that there seems no evidentiary basis for concluding or inferring that comparable wages at the date of trial for the type and level of work that the plaintiff would have performed had she not been injured would have been in the vicinity of $420 per week. It is a significant increase over the $355 per week sum that was used to calculate past wage loss. 51 The second alternative, advanced by the respondent, is the more likely situation. If one applies "reverse engineering" (to use Mr Fordham's expression), $56,000 represents one quarter of a sum derived from applying the appropriate multiplier (628) to a base figure of $356 per week without the normal 15% vicissitudes discount. $356 is only a dollar more than the agreed sum for calculation of past loss. It is quite unsatisfactory to have to proceed in this manner, but I think that the respondent's approach fits more closely with her Honour's expressed reasons. 52 The critical point for the appeal is that the judge concluded that the appellant would realise three-quarters of her pre-injury working capacity. In my view, this conclusion cannot stand in light of the primary findings, notwithstanding her Honour's global reference to the appellant's "inability to take heavy work, … age and … geographical situation". 53 Mr Groves, a rehabilitation consultant, provided a detailed vocational assessment (Blue 145). The assessment is based on acceptance of Dr Millon's opinion that the appellant was "only suited for work with a part-time semi-sedentary nature, perhaps 2 hours per day, 5 days per week". The report considered the appellant's "transferable skills", being the areas of work in which she was experienced and which would be physically appropriate for her to perform in light of her present condition. Employment using the appellant's food preparation experience, kitchen, laundry, cleaning and patient care experience were considered "physically inappropriate" because the appellant would be required to maintain standing and lifting postures and (in the case of patient care) also manual handling. Mr Groves thought the appellant currently able to work as a cashier, general office assistant or a telephonist. However his researches about the availability of these positions in the Maitland, Newcastle area were pessimistic in their outcome (Blue 151-2). Within the period searched, no cashier positions were found advertised and telephone enquiries had indicated that such jobs were likely to be advertised in conjunction with associated jobs like retail sales assistant or customer service assistant, "both of which are highly competitive fields". Mr Groves' researches found only one full-time general office assistant job advertised. Once again, further enquiries indicated that experience was important, such jobs were highly competitive and there were a high number of unskilled applicants applying for such positions. The position of telephonist required minimum experience, but no such positions were advertised. Once again, further enquiries indicated that such jobs were usually incorporated into "multi-positions, ie Administration Assistant, Receptionist and these positions are highly competitive". 54 Mr Groves' conclusion was that: Ms Pelley's earning potential and likelihood of obtaining on ongoing position in Mailtand will increase with further training in computer applications. It is considered appropriate from information given from Ms Pelley, that Ms Pelley would be required to undertake extensive training to be upskilled to a point where employment in using computers is realistic, as Ms Pelley has advised she currently holds low level computer skills. This information is combined with employment agency information which advises Clerical Administration Assistant/Office Assistant positions are highly competitive and that some MYOB and on the job experience is highly regarded.

55 Mr Groves had been the respondent's witness. 56 The appellant's occupation therapy expert, Ms Bell, included the following recommendation in a lengthy report (Blue 67): If Mrs Pelley were medically cleared to return to some form of paid employment, she should be referred to an occupational rehabilitation provider for assessment in order to determine a vocational goal and retraining needs. Based on my thirteen years experience as a vocational rehabilitation provider, I would anticipate that the cost of a program would be in the region of $3,000.00 to $5,000.00. However a clearer indications of costs would be provided following assessment by a service provider.

57 The assumptions as to capacity to work upon which these opinions were based appear to be in line with her Honour's general conclusions about the long term impact of the injury. 58 In light of this evidence, the appellant's capacity to exercise her residual earning capacity would require a period of retraining, at some cost. But the market indications show that the appellant would still be significantly impaired by her disabilities. Her present and likely future capacity to obtain employment were markedly restricted. 59 The appellant's education and formal training were limited. She left school at the age of 16 without the School Certificate. Thereafter she was employed as a batch maker for two years, a hospital assistant, a roadhouse cook from 1985-1991, a hotel cook and a service station employee. She had been involved full-time in raising her family between 1974 and 1984. She commenced employment as a cleaner-domestic at the respondent's retirement village in 1993. She was aged 45 when injured in September 2000. 60 Dr Russo had suggested to the appellant that she would probably be fit to do some part-time light work. When asked whether she had any idea what she might do, the appellant said (Black 26): Well he suggested telemarketing or something to that effect that I maybe work from home and I can lay or sit to my leisure. 61 Asked if she would be interested in pursuing that type of work, the appellant said: Well I suggested it to my rehab and she said that it would be very hard for me to get into that.

This evidence was explored further in cross-examination (Black 56). The appellant had recently been connected to the internet, but she had not enrolled in any courses. She had not applied for work, expressing the view that she had "Buckley's chance" (Black 57). The vocational evidence gave real substance to these perceptions. 62 For these reasons, I would set aside the award in relation to future economic loss. Doing the best I can, I would substitute a sum representing three-quarters of the figure derived from projecting the agreed rate of $355 per week from the date of judgment in the District Court to the date at which the appellant turns 65, less the conventional discount for contingencies.

Lost superannuation 63 This claim was apparently overlooked by the trial judge. The parties are agreed that the appellant is entitled to additional awards of $4,272.00 for past loss of superannuation contributions and $5,360.00 for the future. However the future sum requires recalculation if (as is the case) the award for future economic loss is itself increased.

Discounted award for future care 64 The mathematics of the appellant's claim for future care came out at $35,392. The judge awarded $25,000, stating: For the future I accept that the conditions that the plaintiff's back is such that she will not be able to do heavy housework and I have thus allowed her an ongoing provision of two hours per week again at twenty dollars per hour on the basis of the life tables. Without discount this amounts to $35,392, however, I have discounted it to allow for the plaintiff's needs in any event as she ages and for other contingencies and I have allowed her the sum of $25,000.

65 The appellant was somewhat coy about raising a ground of appeal about the deduction, but ultimately pressed it. Submissions were exchanged and the respondent effectively conceded that the discount was unexplained and not readily inexplicable when it is realised that the calculations were based on the life tables (cf Wells v Wells [1999] 1 AC 345). I would therefore award the full sum of $35,000. The absence of reasons on a matter in which the respondent bore an evidentiary onus justifies this approach in a small component of the award.

Disposition 66 1. The appeal should be upheld with costs.

2. The respondent to receive a certificate under the Suitors Fund Act if qualified.

3. The parties should calculate the varied first instance judgment in accordance with the reasons of the Court of Appeal and file appropriate orders within 14 days. Liberty to apply to the Registrar within 21 days if agreement cannot be reached. 67 BEAZLEY JA: I agree with Mason P. 68 SANTOW JA: I agree with Mason P.

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