Rabay & Anor v Bristow

Civil Liability Act 2002 (NSW) LEGISLATION CITED: Motor Accidents Act 1988 (NSW)

Dell v Dalton (1991) 23 NSWLR 528 Donald v McKeown [2004] NSWCA 285 Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317 Francis v Lewis [2003] NSWCA 152 Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 House v R [1936] HCA 40; (1936) 55 CLR 499 Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 Kurrie v Azouri (1998) 28 MVR 406 Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 CASES CITED: Nagle v Rottnest Island Authority [1992] HCA 43; (1993) 177 CLR 423 Owners - Strata Plan 156 v Gray [2004] NSWCA 304 Phillis v Daly (1988) 15 NSWLR 65 Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1998) 192 CLR 431 Southgate v Waterford (1990) 21 NSWLR 427 Sungravure Pty Ltd v Meani [1964] HCA 16; (1964) 110 CLR 24 Thompson v Woolworths (Queensland) Pty Ltd [2005] HCA 19; (2005) 214 ALR 452 Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 Vial v Housing Commission of New South Wales [1976] 1 NSWLR 388 Williams v Commissioner of Road Transport & Tramways (NSW) [1933] HCA 30; (1933) 50 CLR 258 Woolworths Ltd v Lawlor [2004] NSWCA 209 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

Riad & Therese Rabay (Appellants) PARTIES: George Bristow (Respondent)

I J Harrison SC/G J Parker (Appellants) COUNSEL: M A Elkaim SC/A B Parker (Respondent)

McCulloch & Buggy (Appellants) SOLICITORS: Markham Geikie Garrugia (Respondent)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40414/04 DC 718/03

HANDLEY JA McCOLL JA BRYSON JA

Wednesday, 15 June 2005 Riad RABAY & Anor v George BRISTOW Judgment

1 HANDLEY JA: I agree with McColl JA. 2 McCOLL JA On 7 May 2004 Cooper ADCJ awarded the respondent $430,837.03 damages in respect of injuries he suffered on 17 February 2000 while making a delivery to the appellants' premises. The appellants challenge his Honour's conclusions on liability, contributory negligence and damages.

Statement of the case 3 The facts are uncontroversial although liability was, as the primary judge noted, very much in issue. 4 The respondent was a delivery driver whose job required him to drive a semi-trailer around the suburbs of Sydney, delivering pallets on which were stacked cartons of groceries and similar items. 5 The appellants operated the Welcome Mart store at Brownsville. At the rear of the store there was a doorway approximately 5 feet wide to which was affixed a roller shutter door. Attached to the concrete floor in the centre of the doorway was a metal bracket 8 millimetres thick and 85 millimetres wide which protruded above the floor level by 25 millimetres. 6 On 17 February 2000 the respondent parked his semi-trailer in the lane behind the store and went to the front of the store where he informed a person (who the primary judge concluded was most probably the appellants' son) of his presence and that he had a delivery. He then returned to his semi-trailer and waited until the roller door was opened. The appellants' son came out through the doorway. The goods were stacked inside the respondent's semi-trailer on pallets which were approximately 4 feet square. The respondent positioned the tailgate on the semi-trailer so that it was level with the floor of the interior of the trailer, placed a pallet jack underneath a pallet, lifted it off the floor and then pulled the laden pallet by means of the pallet jack to the tailgate. He lowered the tailgate until it was level with the footpath, turned 90 degrees and pulled the pallet onto the footpath lining it up, as he did so with the doorway. 7 He then had to manoeuvre the pallet on the pallet jack up the rise of the footpath and through the doorway. The clearance between the goods on the pallet and the doorjambs was approximately 6 inches on either side. 8 The primary judge found that in order to move the pallet inside the store it was necessary for the respondent to pull the laden pallet jack while walking backwards through the doorway with sufficient speed and momentum to get up the rise and, at the same time, check that the goods on the pallet did not collide with the doorjambs. The appellants' son assisted him in this procedure by pushing the goods on the pallet jack while the respondent pulled. 9 While carrying out this task the rear of the respondent's right boot came into contact with the metal bracket protruding from the floor. One of the wheels of the pallet jack then ran up on top of the steel cap of his boot causing the respondent to fall backwards, hitting the ground hard with his buttocks causing the injuries the subject of the proceedings. 10 The respondent had delivered goods to the appellants' premises twice before. On one of those occasions, the primary judge found, his foot had come into contact with the metal bracket while he was walking backwards into the store. The respondent said that on that occasion he had spoken to the male appellant, told him he had tripped, advised him that there was a safety issue and asked him to remove the piece of metal. He said that the male appellant had not answered but had "just smiled and signed the paperwork". 11 It appeared that another delivery driver had also complained about the protruding metal bracket. That driver, Mr George, gave evidence that he delivered to the appellants' premises every Thursday. He followed the same procedure as the respondent to get his pallet jack through the doorway while the appellants' son pushed. Mr George said that he had spoken on more than one occasion to the appellants' son and asked him when he was going to grind off the bracket and put catches on the side but the son had just shrugged his shoulders. He agreed with a question put to him in cross-examination that "it was a hazardous, difficult place to deliver [a] load". 12 One of the appellants' sons gave evidence that the metal bracket was part of the locking mechanism for the door and had been installed following a theft at the premises. At the time the theft had occurred the roller door had been locked by mechanisms on either side of the door with none in the middle. He said that when the metal bracket was fixed in the floor he had wanted it to be recessed, because the appellants were aware it could cause a danger to people who delivered goods through the door onto the premises. He said he had been told that a recessed bracket would not hold. He agreed that on 17 February 2000 the respondent had complained of tripping over the bracket but said that before this complaint he had not been aware of anybody tripping over the bracket nor had he received any complaints to that effect. 13 The appellants' son also agreed that persons delivering goods to the premises had to walk backwards pulling the pallet jack inside by one swift movement up the slope while, at the same time, ensuring that it went through the door. He accepted that the metal bracket was dangerous, particularly to persons walking backwards looking at the sides of a load. 14 The primary judge concluded that both the respondent and Mr George had informed the male appellant and one of his sons that the metal bracket "represented a real and present risk to people pulling a pallet jack loaded with a pallet through the doorway". His Honour concluded that the "totally unexplained failure" to call the male appellant and his other son gave rise to the inference that their evidence would not have assisted the appellants' case. 15 The primary judge rejected the appellants' evidence that the roller door could not be secured without the metal bracket. He accepted the expert evidence led by the respondent from a Dr Emerson to the effect that there was an alternative locking mechanism which would have obviated the necessity to have the metal bracket protruding above the floor level.

Breach of duty 16 The primary judge concluded that the metal bracket presented a reasonably foreseeable cause of injury to persons walking through the doorway. He rejected the appellants' submission that they had discharged their duty of care because the respondent was aware of the metal bracket. He also rejected the submission that the metal bracket was likely to cause injury only if the person using the premises did not take reasonable care to avoid it: cf Phillis v Daley (1988) 15 NSWLR 65. This was because, in his Honour's view, of the special circumstances in which the respondent was injured. These were, as the appellants knew, that the pallet jack on which the pallet was stacked was heavy, had to be pulled by a person moving backwards and had to be manoeuvred quickly up the upward incline from the footpath through the doorway which offered only a small clearance on either side. Accordingly, the primary judge concluded, the appellants knew that the attention of the person pulling the pallet jack would be "fully occupied in exerting strain to move the laden pallet jack and clearing the load through the doorway [so that] he was not afforded the opportunity to look out for the upwardly protruding bracket". 17 In light of these factors the primary judge concluded that in order to discharge their duty of care the appellants were required to remove the metal bracket. 18 The appellants submitted that the respondent was guilty of contributory negligence on the basis that it was incumbent on him to avoid the hazard created by the bracket, for example by delivering goods on an upright trolley which the deliverer could push. The primary judge rejected that submission concluding that, having regard to the appellants' knowledge of the manner in which the respondent and Mr George had delivered goods to their premises, including knowledge of the respondent walking backwards, at speed, up an incline while negotiating a relatively narrow doorway by pulling a pallet jack backwards, they had not established that the respondent had failed to take reasonable care for his own safety. Rather, his Honour concluded, the respondent was "doing what was required to be done in the circumstances created by the [appellants]".

Damages 19 About three to four days after his fall the respondent noticed pain in the area of his neck which then progressed into his left arm and right shoulder. 20 Expert evidence described the fall as causing a compacting injury to the respondent's neck. The respondent submitted that this injury resulted in decompensation and symptomatic compression of the cervical roots into both arms which then led to a 15 per cent permanent impairment of his neck, 10 per cent loss of efficiency in his left arm and 5 per cent loss of efficiency in his right arm. 21 The primary judge concluded that the respondent's work history demonstrated that he was a person who was "used to working very hard" and that he had remained in virtually constant employment. 22 The primary judge reviewed the extensive medical evidence and concluded:

(1) that immediately before his fall on 17 February 2000, the respondent had degenerative changes in his cervical spine which gave rise to no symptoms, notwithstanding the heavy nature of his work.

(2) on 17 February 2000, he fell backwards on to his buttocks which jarred his cervical spine causing the previous asymptomatic condition to give rise to symptoms.

(3) those symptoms include pain and restriction of movements in the neck with impingement upon nerves, emanating to both arms and causing pain and restriction of movements in those limbs.

(4) the accident-caused condition in the respondent's neck and shoulders and arms had severely restricted his ability to enjoy life and obtain and maintain employment. 23 The primary judge concluded that the respondent's ability to lead a "normal pain free life" had been "considerably diminished". He assessed his non-economic loss at 31% of "a most extreme case". Applying the table in s 16 of the Civil Liability Act 2002 (NSW) he calculated that at 26% of the maximum which, in accordance with the Act, he rounded up to allow $100,000 for non-economic loss.

24 It was common ground that the respondent had not worked since September 2001. The primary judge found that he would be unable to return to his pre-injury work, observing that the medical reports "seem at one on this". The respondent accepted that he was able to do work that did not involve strain on his arm or neck. He gave evidence, which the primary judge accepted, that he had applied for sixty jobs unsuccessfully and that once he told a prospective employer the true reason for his unemployment he heard nothing further. 25 The primary judge held that if the respondent had not been injured, he would have continued earning at the rate of his average weekly net earnings of $794.00 per week as at the time he ceased working in September 2001 up until the time of trial. He allowed him that rate for past loss of earning over 137 weeks which came to $108,778.00. 26 At the time of trial the respondent was approaching his 51st birthday and had expected to continue working for another ten or twenty years. The primary judge concluded that it was probable that he would have difficulty selling his work capacity on the general labour market. Accordingly, he assessed his accident-caused reduction in work capacity at about 50%. 27 Accepting that the assessment of future diminished earning capacity was not a matter of precise arithmetical calculation but, rather, a matter of judgment, the primary judge allowed the respondent $156,800.00 for that loss. That sum was approximately equivalent to the present capital value of $394.00 per week for fourteen years discounted by 25%. His Honour allowed a larger discount than normal for vicissitudes to take into account the possible effect of the respondent's pre-existing degenerative cervical spine.

There are seven grounds of appeal which, in substance, complain that the primary judge:

(1) failed to take proper account of the fact that the danger was obvious and easily avoidable by a person taking reasonable care for his own safety (grounds 1 - 3); (2) erred in finding that reasonable care on the part of the appellants required the plaintiff to remove the bracket (ground 4); (3) erred in failing to find that the respondent was guilty of contributory negligence (ground 5); (4) erred in awarding the respondent non-economic loss under the Civil Liability Act 2002 (ground 6); (5) erred in concluding that the accident continued to limit the respondent's working capacity, and awarding an excessive amount for past and future economic loss (ground 7).

Appellants' submissions 28 The appellants submit that the duty of care owed to the respondent was that of reasonable care on the assumption that he, as an entrant to the premises, would take care to avoid and deal with obvious hazards which were known to him and which the exercise of reasonable care on his part enabled him to avoid: Francis v Lewis [2003] NSWCA 152 at [40] per Mason P (with whom Hodgson JA substantially agreed and Tobias JA agreed). 29 The essence of the appellants' argument was that it was a matter for the respondent to choose the manner in which he affected delivery to their premises. The mode of delivery was a matter beyond their control. Accordingly, they argued, the respondent's injuries were not caused by the condition of the premises but by the respondent's failure to exercise reasonable care in entering the premises in circumstances where he was "entirely in control of the events".

30 The appellants also argued that the primary judge's conclusion that they were required to remove the bracket on which the respondent stumbled was erroneous. They contended his Honour failed correctly to assess that the magnitude of the risk was insignificant, the potential for harm slight and also that the conclusion attached insufficient importance to the "proven utility of the bracket as a means of securing the premises". They argued that they were validly concerned with the security of the premises and that it was erroneous for the primary judge to insist that they secure the roller door against unlawful intrusion by means other than the metal bracket. 31 Accordingly, they argued that the primary judge had failed to consider that they were entitled to assume that the respondent would, by keeping a proper lookout, avoid what was "a modest risk of known content". They argued that application of the Shirt calculus (Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40) led to the conclusion that they were not required to take action in relation to the metal bracket or the door.

Respondent's submissions 32 The respondent submitted that the appellants' premises were unsafe to the appellants' knowledge. While it was accepted that the respondent could on occasions perform deliveries without injury, he contended that the circumstances in which he was required to make deliveries were such that he was always at risk because the margin for error was so small. Accordingly the respondent argued that his behaviour was a "miscalculation which did not, in the circumstances, amount to such imprudence as to constitute carelessness or negligence at all": Williams v Commissioner for Road Transport & Tramways (NSW) [1933] HCA 30; (1933) 50 CLR 258 at 266, 267.

Thompson v Woolworths (Queensland) Pty Limited 33 After the oral argument was concluded the High Court delivered judgment in Thompson v Woolworths (Queensland) Pty Limited [2005] HCA 19; (2005) 214 ALR 452. The Court invited the parties to make such written submissions, if any, as they thought appropriate in the light of that decision. Both parties took advantage of that opportunity. 34 In Thompson v Woolworths the plaintiff was an independent contractor who injured her back while delivering goods to the respondent's store. She had made many deliveries in the past and had, on many occasions, encountered a problem with moving her delivery vehicle into Woolworths' loading dock because waste bins were left in the access lane by council workers. The blockage of access to the loading dock by the industrial waste bins was "a long standing source of friction between the appellant and employees of the respondent": Thompson (at [8]). While some delivery drivers were able to move the bins without suffering harm, the appellant could not. On one occasion when she sought to move a waste bin in order to gain access to the loading dock she injured her back and leg. Her case against Woolworths was based upon an allegation that there was a "systematic failure to exercise reasonable care for [her] safety": Thompson (at [14]). She successfully sued the respondents for damages for negligence. An allegation of contributory negligence was rejected. 35 In considering the formulation of the duty of care Woolworths owed the appellant the High Court identified as important aspects of the relationship between them Woolworths' status as occupier of the land on which the appellant was injured (at [24]). This, the Court observed, "gave the respondent a measure of control that is regarded by the law as important in identifying the existence and nature of a duty of care". The High Court (at [26]) also regarded "the purpose for which, and the circumstances in which, the appellant was on [Woolworths'] land" as a significant aspect of the relationship. 36 Although the Court accepted that the appellant was pursuing her own business in delivering goods to the respondents' premises, it also pointed out that Woolworths had established the delivery system to which she was required to conform. Accordingly, the Court concluded (at [26]) that as Woolworths had "established the system to which the appellant was required to conform, [Woolworths'] duty covered not only the static condition of the premises but the system of delivery". The Court held (at [27]) that Woolworths' "obligation to exercise reasonable care for the safety of people who came onto its premises extended to exercising reasonable care that its system did not expose people who made deliveries to unreasonable risk of physical injury". 37 Turning to the issue of breach the Court observed that: "35. When a person is required to take reasonable care to avoid a risk of harm to another, the weight to be given to an expectation that the other will exercise reasonable care for his or her own safety is a matter of factual judgment. It may depend upon the circumstances of the case…. 36. The obviousness of a risk, and the remoteness of the likelihood of other people will fail to observe and avoid it, are often factors relevant to a judgment about what reasonableness requires as a response. In the case of some risks, reasonableness may require no response … 37. The factual judgment involved in a decision about what is reasonably to be expected of a person who owes a duty of care to another involves an interplay of considerations. The weight to be given to any one of them is likely to vary according to circumstances. If the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety, were conclusive against liability in every case, there would be little room for a doctrine of contributory negligence. On the other hand, if those considerations were irrelevant, community standards of reasonable behaviour would require radical alteration." 38 The Court concluded that the appellant had established that Woolworths had breached its duty of care to her in failing to have a proper delivery system in place. In reaching that conclusion it observed (at [38]) that the delivery drivers had no responsibility to design and no power to implement, the delivery system operating on Woolworths' premises. That power and responsibility belonged to it alone. 39 The Court was, however, persuaded that the appellant had been guilty of contributory negligence observing (at [40]) that different considerations arose in the case of contributory negligence on the part of an independent contractor from those which arose in cases involving employees. In the Court of Appeal, McMurdo J had concluded that the appellant's judgment should be reduced by 1/3rd on account of her contributory negligence. The High Court held (at [42]) that that was an appropriate amount. 40 The appellants relied upon Thompson v Woolworths as supporting their argument that, having regard to the obviousness of the danger posed by the metal bracket and the respondent's knowledge of it, they were entitled to take no steps to avoid or eliminate that risk. They also relied upon the High Court's acceptance that the appellant's judgment should be reduced by 1/3rd for contributory negligence as supporting their argument that the primary judge erred in not finding the respondent guilty of contributory negligence. The appellants argued that the factual matters which supported the finding of contributory negligence in Thompson v Woolworths, the appellant's knowledge of the risk of moving the bins and her prior complaints, were also found in the present case. They pointed out that the respondent was aware of and had complained about the risk posed by the metal bracket. 41 The respondent submitted that the decision in Thompson v Woolworths supported the primary judge's finding that the appellants were guilty of breach of duty. In particular the respondent argued that the risk in Thompson was more obvious than that which he encountered at the appellants' premises. In comparison with the situation in Thompson where the waste bins were large and needed to be moved before delivery could take place, the respondent pointed out that the metal bracket over which he stumbled was in a position where it interfered with the delivery process. He argued it was a danger which was integrated into the appellants' delivery system. 42 Insofar as contributory negligence was concerned, the respondent sought to distinguish Thompson on the basis that he had only visited the appellants' premises on two previous occasions, had made only one complaint, that the appellants had ignored his complaint and those made by Mr George over a period of time, that he was unable to dictate any part of the system of delivery and was, in fact, being assisted by a son of the appellants who knew of the metal bracket and of the danger it posed and, finally, that he had no pre-existing injury which might have caused him to exercise greater caution in carrying out his delivery.

Consideration 43 The appellants' obligation to take reasonable care for the safety of the respondent required them to take into account the fact that the response of a reasonable person includes the possibility of inadvertent and negligent conduct on the respondent's part: Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1998) 192 CLR 431; Nagle v Rottnest Island Authority [1992] HCA 43; (1993) 177 CLR 423 at 43 applying McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 at 311-12; Francis v Lewis at [40]. 44 There is no doubt that the risk of tripping over the metal bracket was obvious. The appellants were aware of the risk as, too, was the respondent. However, in my view, the circumstances in which the respondent was required to undertake deliveries to the appellants' premises required a response on the appellants' part. 45 The appellants occupied the premises from which they carried on their business day in, day out. They had done so for at least seven years prior to the respondent's accident. They were aware of the risk the metal bracket posed to entrants to their premises - particularly delivery drivers such as the respondent who were required to deliver goods walking backwards, manipulating a large load through a narrow door. 46 The appellants' submission that the mode of delivery was a matter for the respondent cannot be accepted. The mode of delivery was dictated by the layout of the premises and the appellants' requirement that deliveries be effected through the narrow doorway in the middle of which protruded the metal bracket. 47 Nor can the appellants' submission that they need do nothing, relying upon the respondent to exercise reasonable care for his own safety, be accepted. As the High Court said in Thompson (at [35]) the weight to be given to that expectation is "a matter for factual judgement". The appellants had to take into account the possibility that the respondent's preoccupation with the task at hand would lead him to forget about the protruding metal bracket. It is plain that that is what happened on 17 February 2000. 48 The appellants complain that, nevertheless, applying the Shirt calculus, the primary judge erred in concluding that they should have removed the metal bracket. They relied on the passage in McHugh J's judgment in Dovuro Pty Limited v Wilkins [2003] HCA 51; (2003) 215 CLR 317 at [38] where his Honour observed that: "A defendant is not negligent merely because it fails to take an alternative course of conduct that would have eliminated the risk of damage. The plaintiff must show that the defendant was not acting reasonably in failing to take that course. If inaction is a course reasonably open to the defendant, the plaintiff fails to prove negligence even if there were alternatives open to the defendant that would have eliminated the risk." (emphasis in original) 49 I cannot discern error in his Honour's approach. The appellants knew that anything protruding up from the floor was an obvious danger (Black 84M) and an even greater danger when people had to do work requiring them to concentrate on going backwards while pulling a heavy load. The risk of serious injury to a person who stumbled backwards over the metal bracket onto the concrete floor was manifest. 50 There was expert evidence that there was an alternative method of securing the roller door. The appellants did not challenge this evidence by cross-examination or by competing expert testimony. Indeed Mr Harrison accepted, as I understand his submission, that adopting the alternative locking mechanism would not be burdensome. His submission was that, having regard to the obviousness of the risk that precaution was not called for, or, to adapt McHugh J's proposition, inaction was a course reasonably open to the appellants. 51 In my view, the primary judge was entitled to conclude, applying the Shirt calculus, that the appellants had breached their duty of care to the respondent. 52 Grounds 1 - 4 must be rejected.

Contributory negligence 53 The appellants submitted that the respondent was guilty of contributory negligence because he exposed himself to a risk of injury which was reasonably foreseen and could have been avoided by the exercise of reasonable care on his part. 54 The appellants submitted that the respondent was guilty of contributory negligence because in not stepping over the metal bracket he exposed himself to a risk of injury which might reasonably have been foreseen and avoided: Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 at [16] per McHugh J. 55 The appellants relied in essence on their submissions on breach of duty as also demonstrating that the primary judge had erred in failing to conclude that the respondent had been guilty of contributory negligence. 56 It is trite that in considering the issue of contributory negligence, the common law distinguishes between an error of judgment and a blameworthy want of due care: Sungravure Pty Ltd v Meani [1964] HCA 16; (1964) 110 CLR 24 at 37 per Windeyer J; Vial v Housing Commission of New South Wales [1976] 1 NSWLR 388 at 392 per Glass JA (with whom Moffitt P agreed); see also Mahoney JA at 397. 57 As the primary judge found, the respondent had no alternative route through which to deliver his employer's goods. Unlike the appellant in Thompson, who was aware of the risk inherent in moving the large bins, the respondent was focussing on manoeuvring the pallet jack through the door and, through what in my view can be characterised as an error of judgment, did not advert to the presence of the metal bracket. His inadvertence did not amount to blameworthy negligence on his part. 58 In my opinion the primary judge did not err in concluding that the respondent was not guilty of contributory negligence. 59 Ground 5 must be rejected.

Non-economic loss 60 The appellants complain that the primary judge did not refer to and appeared not to have considered the concept of a "most extreme case" in s 16 of the Civil Liability Act 2002 (NSW). Accordingly, the appellants argued that his Honour had not determined in relation to the s 16 "yardstick" where the respondent fitted: cf Kurrie v Azouri (1998) 20 MVR 406 at 413, 414; Owners - Strata Plan 156 v Gray [2004] NSWCA 304. The appellants argued that had his Honour adopted this approach in considering non-economic loss he would have concluded that the respondent had not achieved a 15% assessment. In other words the appellant contended no award should have been made in respect of non-economic loss. 61 I cannot accept the appellants' submission that the primary judge did not appear to have considered the concept of "a most extreme case". His Honour referred to the statutory test. It was not necessary for him to undertake a formulaic process of iterating where, having regard to "serious cases of paraplegia, cases of serious brain damage and, perhaps, some cases of extremely serious scarring and disfigurement caused, especially to young children, by scalding or burning" (see Kurrie at 413 - 414), the respondent's case sat. 62 The exercise a primary judge is required to undertake in determining the severity of a plaintiff's non-economic loss for the purposes of s 16 is neither scientific nor normative. While it is not wholly at large, it does, nevertheless, involve an exercise of discretion with which the Court will rarely intervene: see Southgate v Waterford (1990) 20 NSWLR 427 at 440 - 441. The assessment of non-economic loss is an evaluative process in respect of which minds may reasonably differ: Woolworths Ltd v Lawlor [2004] NSWCA 209 at [14]). 63 It was unnecessary for his Honour to give precise reasons why he selected the figure of 31% as the proportion the respondent's non-economic loss bore to "a most extreme case". As this Court said in Southgate (at 442): "… in the familiar task of assigning money sums to the intangible claim for general damages a point is reached where further reasoning is impossible. It is necessary to make a determination which is insusceptible to entirely logical exposition … that determination rests upon the judge's finding and his or her reaction to those findings, drawing upon the judge's general experience." 64 The same proposition was expressed by Handley JA (with whom Kirby P and Priestley JA agreed) in Dell v Dalton (1991) 23 NSWLR 528 at 533 where his Honour observed in respect of a trial judge's conclusion for the purposes of assessing non-economic loss pursuant to s 79 of the Motor Accidents Act 1988 (NSW) (relevantly in like terms to s 16 of the Act) that: "… the ultimate finding that a particular case is or is not 'a most extreme case' will not readily be susceptible of appellate review. Like other issues in the assessment of damages for personal injuries its resolution will involve questions of fact and degree, and matters of opinion, impression, speculation and estimation, calling for the exercise of common sense and judgment." 65 In his oral submissions Mr Harrison argued that the primary judge's exercise of his discretion miscarried. He submitted that while the respondent suffered some neck stiffness, shoulder and arm pain these sequelae of his injuries did not suffice to attract an assessment that he was 31% of a most extreme case. He pointed, in particular, to the fact that the respondent had continued to work for eighteen months after his accident. 66 Mr Elkaim SC, who appeared on appeal but not at trial, with Mr A Parker, argued that the medical evidence demonstrated that the respondent had suffered an aggravation of asymptomatic degenerative cervical changes resulting in pain which was so invasive that he was unable to continue working. He noted that the respondent was, as the primary judge had accepted, in constant pain and that the figure of 31% of a "most extreme case" was within the range. 67 In my opinion it cannot be said that the primary judge's decision that the severity of the non-economic loss suffered by the respondent was 31% of a most extreme case was either unreasonable or plainly unjust: cf House v R [1936] HCA 40; (1936) 55 CLR 499 at 505. While I accept that the assessment of the 31% is high there is nothing, in my view, which indicates that it was outside the range of a sound exercise of the judge's discretion. 68 Ground 6 must be rejected.

Economic loss 69 The appellants submitted that the primary judge's assessment of the diminution in the respondent's earning capacity was excessive and beyond a sound discretionary award. The appellants argued that the respondent had demonstrated a capacity to earn equal to that which he had before the accident for a period of 18 months. They contended that the respondent's post injury work was identical with that he had carried out prior to his injury and was strenuous. They argued that the respondent's ability to undertake such strenuous work was inconsistent with the conclusion that the incident on 17 February 2000 had a serious disabling effect. 70 The appellants also argued that the primary judge failed to allow for the fact that the respondent had carpal tunnel problems affecting the fingers of his left hand which were not a consequence of his accident. 71 The appellants argued that even accepting the respondent had a diminished earning capacity the primary judge ought only to have allowed a modest buffer for both past and future economic loss of $100 a week until the respondent was 65 years of age. 72 In his oral submissions Mr Harrison submitted that there was no warrant for the primary judge awarding the respondent 100% of his lost income between the date he ceased his employ as a delivery driver and the date of trial. He argued that the respondent's condition had stabilised by the time he left his previous employ and that the appellants could not be liable for the respondent's inability to secure work. 73 Compensation for loss earning capacity is awarded because of the diminution in an injured plaintiff's earning capacity "is or may be productive of financial loss": Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 at 347. It is incumbent upon the plaintiff to prove the loss for which compensation is claimed (Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 at 412) but, conversely, it is not incumbent upon the injured plaintiff to prove what employment he or she "is not incapacitated from performing". It is for a defendant which contends that the plaintiff has a residual earning capacity to adduce evidence of what the plaintiff is capable of doing and what jobs are open to such a person: H Luntz, Assessment of Damages for Personal Injury and Death (4th Ed) at 118 [1.9.20]. 74 The primary judge was entitled to take into consideration the fact that the respondent had an employment history which demonstrated a consistent pattern of full time employment in work which might fairly be described as having been of a heavy manual nature: Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 at 143 per Gleeson CJ, Gummow, Kirby and Hayne JJ. 75 The only evidence before the primary judge on past economic loss was the respondent's evidence that he had ceased work as a delivery driver because of the debilitating effect of his injuries and that, although he had undertaken some retraining, he had been unable to procure alternative employment. In such circumstances, it was in my view, open to the primary judge to conclude that the diminution in the respondent's earning capacity caused by his injuries had been productive of 100% of his economic loss from the date he ceased his previous employment until the date of trial. 76 Accordingly, in my view, the primary judge did not err in awarding the respondent damages for his past economic loss at that rate. 77 As the respondent submitted even the appellants' medical experts accepted that the respondent was no longer able to drive a truck or, indeed, carry out any work of a heavy manual nature. One, Dr O'Neill, opined that the respondent should avoid work "of a heavy manual nature in the future" (i.e. the sort of work he had undertaken prior to the accident) but would be "fit for full time work of a truly light-duty nature". 78 In such circumstances Mr Elkaim submitted that the primary judge's assessment that he had a 50% residual earning capacity was almost favourable to the appellants. In addition, it should be borne in mind, that the primary judge increased the usual percentage for vicissitudes from 15% to 25%. 79 The assessment of damages for future economic loss involves reference to future or hypothetical events. It was described as "the process of estimation of possibility" in Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 643 per Deane, Gaudron and Gummow JJ. This is, as Santow JA has pointed out, "necessarily an imprecise matter of estimation, carried out within broad parameters …": Donald v McKeown [2004] NSWCA 285 at [38]. 80 In my view, having regard to these principles and the medical evidence, there is no error demonstrated in the primary judge's assessment of the respondent's residual earning capacity. 81 Ground 7 must be rejected.

Conclusion 82 The appeal should be dismissed with costs. 83 BRYSON JA: I agree with McColl JA.

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