Personal injuries suffered by the respondent while riding motor cycle owned by appellant during the course of employment-contributory negligence- future Griffiths v Kerkeymeyer- assessment of vicissitudes- future economic loss-whether adequate reasons.

CATCHWORDS : Personal injuries suffered by the respondent while riding motor cycle owned by appellant during the course of employment-contributory negligence- future Griffiths v Kerkeymeyer- assessment of vicissitudes- future economic loss-whether adequate reasons. LEGISLATION CITED : Motor Accidents Act 1988 Astley v Austrust Ltd (1999) 197 CLR 1; CASES CITED : Werner v Krahe [2002] NSWCA 168; Griffiths v Kerkemeyer(1977) 139 CLR 161 PARTIES : Richard Ronald McConachie T/As Willancorah Pastoral Company: Appellant Graham John Pack: Respondent FILE NUMBER(S) : CA 40242/03 COUNSEL : S.G Campbell SC/ R Anthony for the Appellant W.P Kearns SC for the Responent SOLICITORS : Turks Legal for the Appeallant Kingston Swift Solicitors for the Respondent

LOWER COURT District Court JURISDICTION : LOWER COURT DC 135/00 FILE NUMBER(S) : LOWER COURT Taylor DCJ JUDICIAL OFFICER :

• 7 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40242/03 DC 135/00

HODGSON JA BRYSON JA STEIN AJA

13 May 2004 RICHARD RONALD MCCONACHIE T/As WILLANCORAH PASTORAL COMPANY -V-GRAHAM JOHN PACK Judgment 1 HODGSON JA: I agree with Stein AJA. 2 BRYSON JA: I agree with Stein AJA.

This is an appeal from a judgment in the District Court delivered ex tempore by his Honour Judge Taylor at Dubbo on 20 March 2003. His Honour found a verdict for the respondent/plaintiff, Graham John Pack, against his employer, the appellant/defendant, Richard Ronald McConachie, in the sum of $954,084 for damages for personal injury.

Issues on Appeal 4 Four issues are presented on appeal: (a) The finding of no contributory negligence (b) Future Griffiths v Kerkemeyer damages (c) The assessment of vicissitudes, and (d) The inadequacy of reasons for future care and economic loss

Contributory Negligence 5 The appellant employed the respondent as a stockman and station hand on his grazing property. On 22 December 1998 the respondent was badly injured when he was thrown from a motorbike owned by the appellant and used by the respondent in the course of his employment. Apparently the front drive cog came off and the bike bolt snapped causing the back wheel to lock. Earlier in the month, after the bolt and washer had come off the cog and the chain locked, the appellant told the respondent to fix it and to ensure that the bolts were tight. 6 The respondent tightened the wheel cogs with a tension wrench and used a form of glue Loctight as instructed by the appellant, who had obtained the information from a motorcycle supplier. 7 His Honour found that the appellant was in breach of his duty of care to the respondent "in not ensuring that the work was done properly after two failures." 8 His Honour said:

The expert evidence is not in issue. That evidence shows with respect to the first two accidents the chain was too loose. The third accident resulted from the engine sprocket bolt having been too tight. If the tension was correct the consulting engineer, Mr Simpson, is of the opinion that it would have been most unlikely that the accident in which the plaintiff suffered his injuries would have occurred. 9 As his Honour said, the appellant was aware that the respondent's earlier accident was the result of the bolt being loose and he should have realised that the respondent was not competent to adjust the cycle. It should have been even more obvious when the appellant himself suffered an accident in similar circumstances. 10 The finding of negligence by the appellant is not challenged. However, his Honour found an absence of contributory negligence by the respondent and this is contested. 11 On this issue his Honour said:

The duty of care owed by an employer to an employee will at all times require the employer to take reasonable care in relation to a risk of injury that arises through inadvertence or thoughtlessness on the part of the employee to whom it is owed. If such a duty is breached the employer obviously cannot rely on the inadvertence or thoughtlessness to establish contributory negligence, for this is the very risk which the duty was placed on the employer… In this case it was plain for the defendant to see that his employee was not doing the maintenance correctly and the employer was in a position to supervise and control the plaintiff and the bike so that the problem could be rectified. 12 This statement is said to involve an error of principle by his Honour contrary to Astley v Austrust Ltd (1999) 197 CLR 1 at [29-31]. A plaintiff may be guilty of contributory negligence even though he or she is injured as a result of breach of duty whose very purpose is to prevent that type of injury. 13 The respondent's counsel, Mr Kearns SC, denies any error in principle when the whole of the facts and judgment on the issue of liability and the conduct of the respondent are considered. 14 Whether there was an error in principle by his Honour is not easy to discern. It depends upon how one reads what his Honour said. When examined in its full context I am inclined to think that his Honour was not committing any such error. However, what is plain is that there was no contributory negligence on the part of the respondent. He was quite specifically following his employer's instructions. The respondent was told to make sure the bolt was tight and to use Loctight. 15 On behalf of the appellant Mr Campbell SC submitted that his client relied on the respondent's expertise in mechanical matters. But the respondent's lack of competence with repairing motorbikes must have been obvious to the appellant given that the respondent had been unable to perform similar repair work correctly, resulting in two similar prior accidents (one causing him significant head injury). It was neither reasonable nor appropriate for the appellant to rely on the respondent's expertise in mechanical matters. There was no contributory negligence on the part of the respondent.

Future Griffiths v Kerkemeyer 16 The appellant makes two complaints in the alternative about his Honour's assessment of compensation for voluntary home care services under s72 of the Motor Accidents Act 1988. First, the evidence fell short of establishing the threshold of six hours per week. Alternatively, there was no warrant for an allowance of more than say seven hours per week. His Honour had allowed 17 hours per week. 17 His Honour's approach was to note the starting point of the medical evidence. Dr Worsley said that Mr Pack needed ongoing supervision and assistance at home of at least four hours per day. Dr McEwin believed that the respondent required four hours per day domestic assistance because of the extent of his disabilities. 18 His Honour continued

The evidence of the plaintiff and his wife was a little vague. This is not surprising because prior to the accident they shared domestic activities but not on a rigid basis. Since the accident the plaintiff has been able to do very little. The claim for past domestic assistance at 28 hours per week is allowed for three and a half years after the accident. This was not a controversial aspect of the case. The evidence the plaintiff and his wife gave falls well short of the medical practitioners estimates of four hours a day on an ongoing basis. The level of support varies depending on the frequency for example of attendance at medical appointments, and is on a day to day basis about two hours a day. Given the activities that the plaintiff and his wife described I think that is a fair assessment, but the level of support appears to be between 15 and 20 hours per week taking into account medical visits that I referred to. That is the best that can be done on the evidence so I have allowed a sum of 17 hours on a continuing basis. 19 The appellant particularly challenges his Honour's reference to the level of support on a day to day basis being "about two hours a day." This is said to be contrary to Mrs Pack's evidence of "probably an hour or so" per day. 20 The written submissions of the appellant take on an air of unreality. They express a mechanical and arithmetic approach to the calculation of gratuitous domestic care services which the subject matter will not easily bear. As Foster AJA said in Werner v Krahe [2002] NSWCA 168 at [27] precision is impossible in this area and the question is largely one of impression. 21 When one examines the whole of the relevant evidence of the respondent, his wife and the medical evidence, it is plain that the 6 hour threshold is exceeded. 22 The estimates made by Mrs Pack were directed to different times and places and this makes for difficulties in assessment. However, what is clear is that her estimation of "an hour or so" was for extra internal housework only. It did not include lawns and garden, medical visits (which were regular and time-consuming), shopping and motor vehicle maintenance. It should not be forgotten that this man has severe disabilities and requires a morphine pump. 23 It is easy to see how one could get up to 14 hours per week, i.e. two hours per day. Given the degree of impression inherent in the issue, I am unable to conclude that his Honour's assessment of 17 hours per week was unreasonable. It is less than two and a half hours per day on average, which is available on the evidence. It may be also noted that his Honour did not select a commercial rate for the care but the lower statutory one. 24 The other aspect relates to contingencies. It is argued that a 20% deduction should have been made for vicissitudes of life for this plaintiff. However, bearing in mind that his Honour reduced the respondent's life expectancy by 15 years to 28 years, this produced a substantial reduction in gratuitous care services. I do not see that any further deduction is warranted or necessary.

Future Economic Loss 25 In relation to future economic loss the primary judge increased the usual allowance for the vicissitudes of life from 15% to 20% because of the respondent's previous incapacity. The appellant contends that this was too low an increase and, because of the pre-existing degenerative and congenital pathology, a reduction of up to 40% is justified. 26 The submission seems to be based in part on medical evidence that there was some possibility of retraining the respondent for sedentary work but the trial judge had found him permanently unfit for work. It is said that the possibility of some future work should have called for a further increase in vicissitudes. 27 His Honour found that the respondent was unfit for work and likely to remain so. This was a finding well open on the evidence. Increasing the "usual" deduction of 15% to 20% constitutes a significant reduction in future economic loss. Bearing in mind the discretionary nature of the decision, it is very difficult to see how it can be said that his Honour fell into error. I would not see any basis to interfere with his Honour's finding of 20%.

Reasons 28 Given the ex tempore judgment and the issues raised by the parties for deliberation, his Honour's reasons concerning future economic loss and gratuitous care are adequate. 29 Orders The appeal should be dismissed with costs. * * *

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