Sampco Pty Ltd v Wurth

HEADNOTE [This headnote is not to be read as part of the judgment] In February 2011, Ms Helen Wurth (the plaintiff) caught her right foot in an unguarded drainway in the carpark of the Knickerbocker Hotel at Bathurst, owned or occupied by Sampco Pty Ltd (the appellant). The plaintiff fell twisting, breaking a bone in and bruising her right foot. Some months after the injury the plaintiff also complained about pain in her left knee. She commenced proceedings in the District Court against the owners of the Hotel claiming damages for the injuries to her foot and her knee. The trial judge, Levy SC DCJ, found for the plaintiff and awarded a little over $456,500 in damages. The appellant appealed the judgment challenging the finding that the meniscal tear of the left knee resulted from the accident claiming that it was more likely than not that the knee injury occurred during a gym session at or about the time the pain was reported. The issues for determination on appeal were: (i) whether the meniscal tear in the left knee was caused by the accident; (ii) whether the award of damages for non-economic loss at the level of 28% of a most extreme case was excessive; (iii) whether the award for future economic loss was appropriate; (iv) whether the statutory thresholds for past and future gratuitous domestic assistance were reached; (v) whether an award for future domestic assistance at commercial rates was erroneous. The Court (Basten JA, Meagher JA and Adamson J agreeing) held, allowing the appeal: In relation to (i):

1. The plaintiff did not complain about any changes in her left knee from the time of the accident until at least late September 2011 when she reported shooting pains during a gym session: [26], [33], [44], [45]. There was no medical evidence as to a possible mechanism by which the knee injury had occurred in the course of the accident: [35]. The trial judge erred in finding that the knee injury resulted from the accident: [45]. Civil Liability Act 2002 (NSW), s 5D(1)(a) applied. In relation to (ii):
2. Assuming that the injury to the knee had relatively minor consequences with respect to the plaintiff's general enjoyment of life, the assessment of the non-economic loss should be reduced to 25% of a most extreme case. In relation to (iii):
3. The trial judge's finding that medical practitioners had identified "work restrictions" for any part of the plaintiff's work duties was not consistent with medical evidence; nor was there evidence that the plaintiff should not persist in her duties: [70]. None of the medical practitioners suggested deterioration of the condition in the foot, except for the possibility of arthritis developing in the future: [71]. The finding of diminution in plaintiff's earning capacity resulting in future financial loss was unsustainable. Any diminution of earning capacity which may give rise to financial loss was unpredictable and allowance should be subject to a significant discount: [72]. In relation to (iv):
4. The trial judge erred in calculating the hours of domestic assistance required by the plaintiff for the purpose of establishing the minimum thresholds as required by Civil Liability Act, s 15. The trial judge averaged the hours of care received by the plaintiff from the day of the accident to the day of assessment: [91]. The assessment should be made on a weekly basis and not an average over many weeks: [91].
5. The trial judge did not differentiate between the services for the plaintiff and those benefiting the household, nor find that the latter were reasonably required by the plaintiff.
6. The plaintiff failed to establish the requisite 6 hours of assistance over a period of 6 months in relation to the past and future domestic assistance: [91], [92], [93], [94]. Civil Liability Act 2002 (NSW), s 15 applied In relation to (v):
7. The trial judge's finding that Mr Wurth was "unlikely" to continue to provide domestic assistance to the plaintiff was not supported by the evidence: [97]. Contrary to trial judge's finding, Mr Wurth did not have a "busy working week"; there was no evidence as to hours the plaintiff spent helping Mr Wurth maintain the property prior to the accident, nor that Mr Wurth's additional duties placed "strain" on the marriage": [97], [98].
8. The evidence supported a finding that the plaintiff required no more than 3 or 4 hours assistance per week from her husband: [103]. However, as it did not establish that Mr Wurth would not continue to provide such assistance in the future, no award for assistance at commercial rate should be made. Gordon v Truong [2014] NSWCA 97; Miller v Galderisi [2009] NSWCA 353 discussed.

Judgment

1. BASTEN JA: On 19 February 2011 the respondent, Ms Helen Wurth (the plaintiff), caught her right foot into an unguarded drainway in the carpark of the Knickerbocker Hotel at Bathurst, owned or occupied by the appellant. She twisted her foot, breaking a bone and bruising her foot, and has suffered some residual disability flowing from that injury.
2. The District Court judge (Levy SC DCJ) found liability on the part of the appellant, without any element of contributory negligence. He gave judgment for the respondent for a little over $456,500. [1]
3. The appellant does not challenge the finding of negligence against it: the appeal is limited to the assessment of the plaintiff's loss. Although there are subsidiary challenges to the assessment of certain aspects of the award, the primary challenge is to the finding of the trial judge that a meniscal tear in the plaintiff's left knee was a consequence of the accident. If that finding cannot be sustained, the award of damages must be set aside and damages reassessed.
4. For the reasons which follow, there was no proper basis in the evidence for a finding that the disability resulting from the meniscal tear in the left knee was caused by the accident at the appellant's hotel.

Fact finding: injury to the left knee

1. There were three elements of the evidence which supported a causal connection between the accident and the disability in the left knee. First, the plaintiff said that when she caught her foot in the drain she fell forward, causing grazes and bruising to both knees. That evidence was properly accepted. A photograph taken of her legs shortly after the accident supported the description she gave.
2. Secondly, an MRI scan taken on 9 November 2011 revealed a horizontal tear of the lateral meniscus. The MRI was ordered by Dr Peter Johnson, consultant physician and rheumatologist, who saw the plaintiff on 31 October 2011. On 16 November 2011 he saw the plaintiff again, noted that she might ultimately need to see an orthopaedic surgeon and gave her a cortisone injection in the knee.
3. Thirdly, Dr Peter Conrad, who had prepared medico-legal reports for the plaintiff, was called and cross-examined. Although he had prepared a number of reports, it was only in the third and final report of 12 August 2013 that he referred to the injury to the left knee. He did not make an explicit finding that that injury had been caused by the fall in the hotel carpark some 2.5 years earlier. However, counsel for the plaintiff sought to supplement the evidence (which he was allowed to do over objection), obtaining the following opinion: [2] "Q. I want you to assume that in the fall, the plaintiff hurt both knees, both were painful, both were bruised. Within a few months afterwards she noticed increased pain in the left knee and a clicking sensation in that knee when she moved it. Assuming that material to be right, how, if it would, would that affect your opinion that she suffered a meniscal tear in this fall? A. In the absence of objective evidence that she had an problems with the left knee prior to the fall, and I mean objective evidence in the way of doctor's report or attendances at doctors' surgeries for knee pain or a well documented history of a previous injury to the left knee, one would have to assume with certitude that the pain that she was having would have resulted from the fall. Q. Assume that yesterday she gave evidence of her foot going down into the drain the subject of these proceedings and then a twisting of that foot as she fell and landing on both knees. Consistent or non-consistent with a meniscal tear? A. This would be consistent with the injury to her left lateral meniscus."
4. As will be seen shortly, the findings of the trial judge rested solely on the evidence of the plaintiff as to when she felt pain in her left knee and the evidence of Dr Conrad as to the causal connection with the accident at the hotel carpark. Before examining that reasoning, it is necessary to put that evidence into a broader context. As the appellant contended, there were weaknesses of the evidence of those witnesses which were not addressed and there were contraindications in other evidence, not discussed by the trial judge in considering the question of causal connection.
5. First, there was the evidence given by the plaintiff in chief as to the mechanism of the accident: [3] "Q. Describe for me please how you fell, the mechanism of your fall. A. Okay, so we were walking and my foot - I felt my foot go down and then it turned and it, it's - got stuck and didn't move and then I fell straight down onto the ground. Q. Did you fall forwards or backwards? A. I felt forward. Fell forward, sorry. Q. You just demonstrated your hands just above the witness bench at which you're sitting. Did you manage to get your hands out in front of you to break your fall? A. Yes, my hands went down and my knees landed on the ground when my foot was still stuck in the drain. … Q. After you had the fall, what if anything did you notice so far as pain was concerned in your right foot? A. Extreme pain. I felt nauseous and sick. It was very, very painful. Q. How were your knees? A. Very sore. Q. How were your hands? A. Grazed. Q. You, after the accident had happened, attended the local hospital, didn't you? A. Yes. Q. There, did you receive any X-rays or other treatment? A. Yes, they X-rayed my foot."
6. During the period between the date of the accident and the filing of the statement of claim in the District Court, on 6 December 2011, the plaintiff had - attended Bathurst Hospital (19 February 2011); Nepean Hospital for an X-ray of the right foot and ankle (22 February 2011); her general practitioner, Dr Shahla Jamshidi (23 February 2011); Nepean Hospital for an X-ray of her right foot (3 March 2011); obtained treatment on her right foot and ankle by a physiotherapist (18 March 2011); Nepean Hospital again for a further X-ray of the right foot (6 April 2011); Nepean Hospital for an ultrasound scan of her right foot (19 May 2011); Nepean Hospital for an MRI of her right foot (2 June 2011); been examined by Dr George Kalnins, orthopaedic surgeon (30 June 2011), by Dr Sherif Rizkallah, orthopaedic surgeon (4 July 2011) and by Dr Neil Berry, consultant surgeon (16 September 2011). On none of these occasions was any complaint made of injury to the left knee. Failure to raise the question of the knee injury with one doctor, to whom she was referred for a medico-legal report, might be understandable; failure to raise it with any of the doctors, or to seek any investigation of the state of her knee, raised a strong inference that she herself did not see any problem she had with her left knee as related to the accident.
7. Her statement of claim filed on 6 December 2011 identified, under the particulars of injuries, injury to right foot, knees and shoulders, as well as shock. Under particulars of disabilities, multiple fractures of the right foot were alleged, together with pain and restriction in movement in right foot. She claimed damages "in excess of the jurisdictional limit." At that stage, the reference to "knees" (not just the left knee) cannot have been intended to refer to the meniscal tear (although it had been identified at that time) as there was no expert evidence connecting it with the accident. The first attempt to obtain such evidence appears to have been a letter from the plaintiff's lawyers of 26 July 2013 to Dr R M Sorial, an orthopaedic surgeon to whom Dr Johnson referred the plaintiff for advice as to possible operative treatment for the meniscal tear. Dr Sorial was asked to "comment specifically as to the connection between our client's knee problems and the ankle injury" and, if they were related, whether "the knee problems have been caused by or contributed to by the ankle injury". Dr Sorial responded with an estimate of the costs for knee arthroscopy, but no report from him responding to the questions noted above was tendered. (This material was only sought one month before the commencement of the trial.)
8. Returning to the evidence of the plaintiff, she was asked about the present state of her ankles, knees and hands. She gave the following evidence: [4] "Q. Your ankles? … How are they going? You said that they were painful immediately afterwards. How are they going nowadays? A. My, my ankle's [sic] OK. Q. You said that you fell on your knees and hands. Your knees these days - how are they going? A. My left knee is, is very painful. Q. You have been seeing Dr Sorial about that recently, have you not? A. Yes, I have. Q. Have you had any treatment to the knee thus far? A. Yes, I had a steroid injection in the knee in 2011 and now he's recommending surgery."
9. Her counsel then elicited that the steroid injection had given her relief for some five months and the examination continued: [5] "Q. At the end of that time, what happened? A. Then my knee started hurting if I did squatting especially. I started noticing it a lot at first at home if I'm trying to bend down to do things. … Q. Once again, with that knee over the last six months or so, is it getting better or worse or staying much the same? A. Worse. Q. The other knee. How is that going? A. It's fine."
10. In cross-examination by Ms Horvath for the appellant, the plaintiff was taken through the visits to some of the medical practitioners. The plaintiff was then asked questions about her visits to Dr Conrad and whether she had complained about pain in her left knee when she saw him in March 2013. She replied, "No I didn't complain." [6]
11. At that point the trial judge intervened to ask the following question: [7] "Q. In his report of that date, on page 2, he's summarised your history this way. He says, 'She says that recently the left knee has become much more painful.' The way he has written that implies that it was painful before but has become more painful recently. Can you give me an outline of how this left knee pain evolved?"
12. The judge's question was based on a misapprehension. Dr Conrad saw the plaintiff on 6 March 2013 and prepared two reports on that date which made no reference to the left knee. He was asked to examine the plaintiff again five months later on 12 August 2013. His report of that date noted at the top of page 2: "Ms Wurth said that in the accident, she also injured her left knee. Ms Wurth had omitted to tell me about this when I examined her on 6 March 2013."
13. Dr Conrad then noted that she had seen Dr Johnson with respect to her left knee in 2011, had had a cortisone injection and an MRI scan and had been referred to Dr Sorial. Dr Conrad's report continued: "Ms Wurth advised that at the time she had seen Dr Sorial, her left knee had improved due to the Cortisone injection and no arthroscopy was recommended. She says that she had not had any specific treatment for her left knee and she says that recently the left knee has become much more painful. She finds it difficult to do a lot of standing, walking and going up and down stairs. She says that she has an appointment with Dr Sorial this afternoon."
14. The answer that the plaintiff gave to the trial judge's question was as follows: [8] "How the left knee evolved, it just started hurting back in the end of September slowly. I started noticing it hurting more than what - 2011 sorry. More than, than was I thought was normal and that's when I - and it started impeding me walking, doing things, driving. I started getting a clicking in the knee and I was trying to go back to the gym then and if I exercised too much it was starting to get more painful and anything prolonged was starting to hurt."
15. Counsel then asked if it were the case that the plaintiff "first started having problems with [her] left knee in September 2011" and when she indicated it would have been "a bit earlier" she was asked expressly, "[w]hen did you start having pain in your left knee, if you can recall?"
16. The trial judge again thought it appropriate to intervene at that stage to paraphrase the answer that she had given to him, following which the plaintiff volunteered a further statement: [9] "Because what I was going to say is that it had been hurting virtually since the accident but not enough for me to say anything about it or think that it was going to progress to anything worse, and it was September that I noticed that's when it started clicking and, and hurting me."
17. There followed an exchange with Ms Horvath: "Q. It was hurting well before the accident, though wasn't it? A. Yes, but not enough for me to, to want to do anything about it."
18. Counsel then inquired whether as early as May 2010 the plaintiff had "stirred up the arthritis in [her] knees" and saw Dr Johnson. She agreed she had sore knees from dancing but didn't think it was arthritis. She said that she was consulting Dr Johnson because she had arthritis in her hands and found she could not drive one day.
19. The trial judge intervened again: [10] "Q. While we're on the subject of knees and Dr Johnson, in his report of 31 October 2011 he records a history with regard to your left knee that when you're at the gym doing squats and other activities you experienced sharp shooting pains into that knee. Was that a problem that was present before the accident? A. No. Q. So when did that first start? A. That's - I started noticing that around that time, after the accident." HORVATH Q. In October 2011 did you continue working out at the gym? A. I still was going to the gym but doing very limited activities at the gym. Q. Are the sharp shooting pains that you experienced in October 2011 when you were working out at the gym, is that the first time you recall experiencing sharp shooting pains to your left knee? A. Yes."
20. On this evidence, the plaintiff had pain in her left knee prior to the accident at the hotel carpark and thereafter. With respect to both periods she said that it was not enough for her to want to do anything about it. The last passage indicated that she experienced sharp shooting pains in her left knee in October 2011.
21. Dr Conrad was cross-examined by Ms Horvath in the following terms: [11] "Q. … Dr Conrad, when a person suffers a meniscal tear, what are the symptoms that they usually experience at the time they suffer it? What do they experience? A. Well they do get pain. There's no doubt about that but I would point out that this lady would've been in substantial pain from her right foot. She fractured several bones and I would think that her right foot pain would have overshadowed her left knee pain. Q. Thank you doctor, but if you could focus on the left knee pain because that's what I'm asking about. A. Okay. Q. What precisely - when you say pain, is it throbbing pain, is it stabbing pain, is it - is there a way to describe the pain? A. It's a constant pain that is worse when you stand on that knee, walk, go up and down stairs and try and squat or kneel. Q. Would you expect that a person who has torn a meniscus to experience that pain within some weeks at least of them tearing the meniscus or not necessarily? A. I, I would expect - I mean you see this in football players. The pain appears and they hobble off the field. Usually if you tear a meniscus you know about it. Q. Does someone - when you say they normally hobble off the field, does that mean that there's some feeling almost of weakness in the knee when one tears a meniscus? A. No. No so much weakness, just pain when you put weight on it, or bend it. Q. Is it more likely that if someone suffers a torn meniscus that they'll know about it because of the pain they experience within - I withdraw that. Let me try again. How common is it, in your experience, for someone to tear a meniscus but not to experience significant pain for six or seven months? A. Not common. … Q. In your experience, is it common for someone not to complain to doctors of experience [sic] pain in their knee within six months of tearing their meniscus? A. It's not common but as I said, that this lady had very substantial fractures as shown on MRI scan of several bones in the right foot which would have been far more intense than the pain in the left knee. Q. But once she was back up and walking and no longer in the CAM boot, would you agree that if she had torn her meniscus, more likely than not she would have felt it and felt pain at that time? A. Yes."
22. On the basis of the combined evidence of the plaintiff and Dr Conrad, one might conclude that, although it was possible that she injured her left knee in the accident, the injury to the left knee probably occurred well after the accident and without any demonstrable causal connection with it. The absence of complaint about any change in her left knee from the time of the accident (and even before it) until at least late September 2011, some seven months later, combined with evidence of shooting pains at the gym, entirely consistent with tearing the meniscus at that time, support that conclusion.
23. It is convenient next to consider the evidence of the other doctors, none of whom was called as a witness. On that evidence, the only medical practitioner with whom the plaintiff discussed her left knee for a period of at least two years after the accident was Dr Peter Johnson. He had treated her, apparently from about May 2010, for possible arthritis in her hands. When he saw her on 31 October 2011 he reported to Dr Jamshidi that she may have carpal tunnel compression in her right hand and wrist. He continued: "Her other issue is her left knee. She finds that when she's at the gym doing squats or other activities she experiences sharp shooting pains into the knee. The joint has not been swollen nor is it particularly stiff in the mornings. This problem sounds mechanical."
24. It was as a result of the MRI scan ordered by Dr Johnson that a "small lateral menisceal [sic] tear" was identified and a steroid injection given.
25. On 30 June 2011 the plaintiff saw Dr George Kalnins. He took her history of getting her right foot stuck in a drain, falling forward, grazing her elbows and knees and experiencing severe pain in the right foot. Although, in cross-examination the plaintiff said that she had told Dr Kalnins that she was "having pain in my left knee and that it was troubling me", [12] he identified no problem with the left knee (or indeed either knee) in his report to her solicitors, other than her history of grazes when she fell.
26. On 16 September 2011, again at the request of her solicitors, the plaintiff saw Dr Neil Berry, specialist general surgeon. His report provided the following description of the "current situation": "The patient told me today she is now comfortable. She reports that she is no longer walking with a limp. She has found however that the foot can be aggravated by walking distances, standing for long periods and particularly by wearing high heel shoes. She suffers no sleep disturbance. She is now able to cope with all of her domestic activities and she is not receiving any specific treatment."
27. With respect to the clinical examination, Dr Berry reported: "She is a woman of [50] years who moved with normal posture and gait. Examination was confined to the lower limbs. The left lower limb was normal in all respects. The right lower limb there was normal hip and knee function. Examination of the ankle and foot revealed well healed almost invisible scar on the dorsum of the foot. There was no swelling. … There was a normal range of ankle and hind foot movement. The patient was tender on palpating the dorsum of the foot, but not over the fifth metatarsal. There was no neurovascular deficit and no other examination was conducted."
28. The report of Dr Berry, completed in mid-September, was significant, given the plaintiff's evidence of the increase in pain in her left knee occurring in "late September" 2011. Further, accepting that she did tell Dr Kalnins about falling on her knees, it would be extraordinary if, having been referred by her own lawyers to see these surgeons, she did not give a full account of possible injuries. In any event, whatever she told them, Dr Berry examined her left leg as well as her right leg below the hip, and opined that the "left lower limb was normal".
29. This evidence provides strong support for the inference that the meniscal tear occurred at the gym, consistently with the plaintiff's own evidence.
30. Before leaving this issue, it is necessary to address the manner in which it was dealt with by the trial judge. He identified the issue as "causation of plaintiff's left knee problems", which he addressed in 10 paragraphs. [13] The judge noted the dispute as to whether the knee was a separate injury that occurred when the plaintiff "resumed gymnasium exercises in about October [2011]." [14] The judge dealt with the plaintiff's evidence in the following terms: [15] "In disputing that suggestion, the plaintiff pointed to the fact that both of her knees had been injured and bruised in the fall, as was shown in Exhibit 'E'. In that regard, the plaintiff stated her left knee had begun hurting virtually from the time of her injury, which was well before she had resumed gymnasium exercise. She said that by September 2011 she noticed her left knee was hurting more than was expected. She also stated that her left knee problems were getting progressively worse after the accident, and that it was not until she had attempted to resume her full exercise regime at the gymnasium that she had first noticed her left knee to have been problematic for her: T 26; T27.37. At that time, at the gymnasium, she was only walking on the treadmill, not jogging as she was doing before the accident: T33.5 to T33.21."
31. This passage is misleading in a number of respects. To say that both knees had been "injured and bruised in the fall" was not correct, if by "injured" he meant more than grazed and bruised. It might have been noted that there was no medical evidence as to a possible mechanism by which she could have torn a meniscus in her left knee by the forward fall onto her hands and knees, which she described.
32. The statement that her left knee had "begun hurting virtually from the time of her injury" ignored her evidence that she had had problems with it before the accident. Further, her statement that she had noticed it was hurting more than was expected "by September 2011" reflected the judge's own suggestion, misstating her previous answer that it had "just started hurting back in the end of September" and that she had started noticing it around the time she saw Dr Johnson in October 2011. The statement that the problem was getting "progressively worse" after the accident was not consistent with the plaintiff's evidence. There was no reference to her explicit evidence about experiencing "sharp shooting pains to [her] left knee" at the gym. Nor did she say that she experienced those pains when "walking on the treadmill". At the very least, if she had been imprecise in her evidence, reference had to be made to the description recorded by Dr Johnson.
33. The trial judge then referred to an explanation of the mechanism by which a meniscus could be torn or displaced "in a twisting injury". That was not a fair account of what Dr Conrad had said. First, he was asked a very general question as to "what is a meniscus in a knee and what purpose it serves". [16] He described the menisci as "cushioning pads" between the femur and tibia and said that they "tend to protect the bone surfaces from injury and wear and tear and in any sort of twisting injury they can be torn." Very properly, senior counsel for the plaintiff, in putting the question noted above [17] made no reference to a "twisting injury", no doubt because the plaintiff had not given evidence of any such event. In his second question he referred merely to a "twisting of that [the right] foot". The apparent elision between twisting the right foot and the possible injury to the left knee was left unexplored and unexplained. Rather, it was the trial judge who put the following question to Dr Conrad: [18] "Q. … Would you have a look at exhibit B please which is said to be a photograph of the grate in which the plaintiff fell, showing the open space where she placed her foot when she twisted and fell. On seeing that photograph and recognising there are limits to what you can see in a photograph, does that photograph in any cause you to change your opinion on the mechanism of injury? A. It's compatible with what I've heard."
34. In other words, not only was there no description of "twisting" the left leg, it was not put to Dr Conrad that the mechanism involved a "twisting injury", nor when reference was made to a twisting injury, by the trial judge, did Dr Conrad's answer pick up that language. If the trial judge found that the accident involved an injury resulting from a twisted left knee, there was no evidence to support that finding. On the other hand, that finding was not expressly made.
35. The trial judge then referred to Dr Conrad's assertion about what could be "safely assumed" in the absence of "objective evidence of prior problems involving the knee". [19] That part of the doctor's opinion is based on a false premise (he was not told that she had had pain in her knee prior to the accident) and was illogical. If there were any evidence of new specific pain (including a subjective description of pain) between the time of the accident and the time at which the MRI scan revealed a meniscal tear, there would be reason not to treat the accident as the cause of the meniscal tear. Dr Conrad focused on a "previous injury to the left knee": he said nothing about the possibility of a subsequent injury. The period between the accident and the first occasion of shooting pains (in late September or early October 2011) was at least seven months. Accordingly, the explanation was not plausible, was not supported by the plaintiff's evidence of the history of her left knee problems, nor with Dr Johnson's history.
36. The trial judge then referred to what he described as "the delayed complaint by the plaintiff of the left knee problems". [20] The appellant's case was not, however, that complaint had been "delayed", but that the timing of the complaint revealed the timing of the injury to the left knee. The judge rejected the submission stating: "I find the plaintiff's explanations and Dr Conrad's explanation of gradual increase in left knee problems, in the face of a focus on right foot problems, to be a satisfactory explanation for the delayed complaint. I also accept the explanation the plaintiff gave to Dr Conrad, as set out in his second report, to the effect that she had simply omitted to raise the left knee problems with him at his first consultation."
37. These findings bear little relationship to the evidence. With respect to the last sentence, if the plaintiff gave Dr Conrad an explanation it was not set out in his "second report". If the reference were to the statement that she had "simply omitted to raise the left knee problems", it was hardly an explanation. The question was why she had not done so. So far as the reference to a "gradual increase in left knee problems" is said to be an explanation, it was counterfactual: the evidence did not indicate a "gradual increase". It may be said that the evidence revealed a "focus on right foot problems", but that was because it was the injury to the right foot which was clearly caused by the accident. Dr Conrad did not give an explanation for why the plaintiff did not refer to the left knee problems earlier, nor could he have done so. The plaintiff's evidence has already been discussed.
38. The trial judge then noted Dr Conrad's evidence that "whilst it would be usual for a torn meniscus to be accompanied by pain, and that it would be uncommon for such an injury not to cause significant pain for 6-7 months, … he thought the plaintiff's pain from her right foot fractures would have overshadowed her left knee pain from her meniscal tear". [21] Whether the doctor thought it possible that the pain in the right foot had "overshadowed" the pain in the left knee is a matter of speculation: the plaintiff complained of no significant pain in the left knee at or close to the time of the accident. To the extent she did have pain in that knee, until late September it was similar to the situation before the accident. Further, Dr Conrad's evidence as to what was common was not to be dismissed as beside the point.
39. The trial judge continued, noting Dr Conrad's agreement that "once the plaintiff was up and walking without her CAM boot, about 6 weeks post accident, it would have been more likely than not that the plaintiff would have felt left knee pain at that time". [22] That she did not was compelling evidence that the knee injury had not been caused in the accident. The judge dismissed that evidence on the basis that it was "not inconsistent with the plaintiff's evidence that she had experienced left knee problems since the time of the accident." Her evidence with respect to the pain before and after the accident has already been referred to: it did not justify the dismissal of this aspect of Dr Conrad's evidence.
40. Finally, noting Dr Conrad's agreement that "squatting in the course of gymnasium exercises could be a cause of meniscal tear", [23] the judge said there was "no evidence that suggests this is how the plaintiff's knee injury occurred."
41. Both the plaintiff's own evidence set out at [17] and [22] above and the explanation recorded by Dr Johnson, set out at [26] above, suggest quite strongly that that was how the injury occurred. However, it is sufficient to say that the plaintiff failed to prove on the balance of probabilities that the injury occurred when she caught her right foot in the drain at the hotel carpark. Accepting the plaintiff's own evidence and that of Dr Conrad, together with the reports of the other medical practitioners who were not called, the plaintiff failed to make her case as to a causal connection between the left knee injury and the accident. Consequently, the plaintiff failed to establish factual causation under s 5D(1)(a) of the Civil Liability Act 2002 (NSW). The trial judge's conclusion to the contrary was unsustainable.

(a) non-economic loss

1. An award for non-economic loss was calculated in accordance with s 16 of the Civil Liability Act. Based on the findings with respect to the plaintiff's injuries and disabilities, which included the meniscal tear to the knee, the trial judge assessed the case at 28% of "an extreme case" (the statutory formula is a proportion of "a most extreme case") being $75,000. [24]
2. Although the notice of appeal challenged the assessment by the primary judge of non-economic loss, the written submissions filed by the appellant were limited to a statement that the finding as to the relationship between the meniscal tear and the accident "impacts on the overall assessment of damages", noting further that the assessments were in any event excessive. [25] Despite that submission, a schedule of damages filed by the appellant included the full amount of non-economic loss awarded by the trial judge. On the other hand, the schedule omitted an amount awarded for future treatment expenses, on the basis that these related to the meniscal tear in the left knee. The schedule thus exhibited some inconsistency in approach. In the course of oral submissions, senior counsel for the appellant noted that at trial, on the basis of an injury to the foot alone, a range of 18%-20% had been accepted as appropriate as a proportion of a most extreme case. [26]
3. In oral submissions in this Court, senior counsel for the plaintiff accepted that if the knee were to be excluded from the assessment, there was no basis for an award for future medical treatment. [27] He made no submissions as to the possible effect on non-economic loss.
4. Erring on the side of generosity to the plaintiff, and based on the assumption that the injury to the knee had relatively minor consequences with respect to her general enjoyment of life, together with the likelihood that at some stage the problem would be largely resolved by an operation, the assessment of the proportion of a most extreme case should be reduced to 25%. That would provide an amount, in round terms, of $36,000 for non-economic loss.

(b) past economic loss

1. There was no challenge to the award of past economic loss which, with an allowance for superannuation, totalled $7,550.

(c) future economic loss

1. The appellant submitted that there should be no allowance for future economic loss, once the effect of the left knee injury was excluded.
2. At the time of the trial, the plaintiff continued in fulltime employment as an administration clerk at Nepean Hospital. The question now raised by her claim for future economic loss is whether the injury to her foot is likely to restrict her earning capacity in a way which would cause her financial loss in the future. The judge stated at [122]: "In view of the fact that the plaintiff continues to work, albeit with the stated difficulties, and because in the short to medium term it is uncertain as to when she would be reasonably likely to cease working on account of her symptoms, I do not consider the approach of simply projecting a sum representing an assumed weekly loss, is the appropriate method of assessment in this case."
3. The judge was however "persuaded" that the plaintiff "has suffered a diminution in her earning capacity and that this will more probably than not result in her sustaining financial loss during her remaining years of potential earning capacity". [28]
4. The trial judge then referred to s 13 of the Civil Liability Act, which governs the calculation of future economic loss, but only to say that its precise application was "not practicable", and the amount of loss was "difficult to calculate". [29] He therefore awarded a "buffer", in an amount of $130,000. [30] He noted as a "rough cross check" of the reasonableness of that amount that it equated to the present value of a loss of approximately $290 per week for the rest of her working life, less 20% for vicissitudes. The slightly higher than usual allowance for vicissitudes took account of the plaintiff's history of rheumatoid arthritis affecting her hands.
5. The appellant was critical of the trial judge, not for adopting a "buffer", but for undertaking the calculation without articulating "the assumptions about future earning capacity or other events on which the award is to be based", which must accord with "the claimant's most likely future circumstances but for the injury." [31] That such an approach is mandatory, despite the possibility that precise calculation is not required, follows from the language of the statute. No departure from that principle was identified in Allianz Australia Insurance Ltd v Kerr, [32] in allowing for the possibility of an award by way of a lump sum or "buffer" under the equivalent provision of the Motor Accidents Compensation Act 1999 (NSW). [33] Although the trial judge did not use the statutory language, it is clear that he carried out his assessment on the assumption that the plaintiff's most likely future circumstances but for the injury would have been to continue until normal retirement age in her work as an administration clerk at the hospital. The criticism in this respect is not warranted.
6. More significantly, the appellant challenged the size of the allowance by way of the buffer: it was said to be manifestly excessive. That complaint may, however, be put to one side, at least in part. To the extent that the identification of the workplace disability depended on problems with the left knee, the judge proceeded on a false basis. It is necessary to reconsider the assessment of loss of earning capacity by reference to the injury to the right foot alone.
7. The appellant submitted that the medical evidence did not support any award for future economic loss. On 30 June 2011, some four months after the accident, Dr George Kalnins, orthopaedic surgeon, provided a diagnosis and opinion with respect to the plaintiff's foot. He accepted that she had sustained a "significant injury to her right foot" and had "ongoing symptoms which have resulted from this injury." [34] The continuing problems involved "swelling and slight deformity of the fourth toe, which could possibly have sustained a soft tissue injury." He also noted an injury to the midtarsal joint, revealed on an MRI scan. The fracture to the base of her fifth metatarsal bone was said to have been completely healed and "is causing no problems at the moment". Dr Kalnins continued: "I believe treatment for this should be entirely conservative and she has gone along the right path for eventual recovery. She is able to continue her work as an administrator, as the distance from home to work fits in with her driving capacity. … I believe the prognosis for recovery is good, however, from past experience; midtarsal joint injuries whether they are associated with a dislocation or not can take some considerable time to settle in terms of pain and swelling. I note that it is now approximately four months since the injury and I would anticipate that continued recovery will take another three months."
8. A little less than three months later, the plaintiff was seen by Dr Neil Berry. Referring to a consultation on 16 September 2011, Dr Berry reported, as noted above: "The patient told me today she is now comfortable. She reports that she is no longer walking with a limp. She has found however that the foot can be aggravated by walking distances, standing for long periods and particularly by wearing high heel shoes." Dr Berry expressed his opinion with respect to her employment in the following passage: "On the basis of today's examination, the patient is fit for her current clerical work. She would have some difficulty over the next 18 months to two years carrying out work requiring prolonged standing, wearing high heel shoes and walking up and down stairs and slopes. Her prognosis is a little guarded as she is symptomatic. There is no indication for any surgical intervention and apart from simple analgesics and resting the limb when it is painful, no other treatment is required. The long term prognosis is for complete resolution of her situation."
9. The plaintiff saw Dr Peter Conrad, surgeon, on 6 March 2013. He noted she was back to fulltime work, but continued to have pain and stiffness in her right foot. He expressed his opinion in the following terms: "Ms Wurth is well motivated and continues working as an administrative clerk at Nepean Hospital and she able to do this, providing she is able to stand or sit at will and not do a lot of standing, walking, going up and down stairs. This should be part of a structured rehabilitation program. … There is a possibility that she might develop some arthritis in the right foot in region of her fractures. Her prognosis is guarded."
10. When Dr Conrad saw the plaintiff again on 12 August 2013, the injury to the left knee was considered. With respect to both conditions, he repeated the opinion set out above from his earlier report as to employment, and with respect to the future stated: "As previously stated, there is a possibility that she will develop arthritis in the right foot and left knee, however it is too early to give a timeframe on this or quantify it." It is thus apparent that the earlier reference to a "guarded" prognosis related to the possibility of arthritis.
11. The appellant submitted that this medical evidence gave no basis for an expectation that the injury to the right foot would cause financial loss.
12. In her own evidence, the plaintiff gave an account of her disabilities which was largely consistent with that reported to the specialists. However, although she agreed that her foot could be "painful" at the end of work day, the effect of walking and particularly walking upstairs was that the knee was "very painful". [35] She expressed the view that she would not be able to keep up work for more than another couple of years, but the trial judge rejected that opinion as "too pessimistic". [36]
13. In cross-examination, the plaintiff agreed that she could run across the road but did not accept that she went jogging. [37] She continued to go to the gym, "twice a week if I can." [38] From October 2011 she had started back at the gym walking on the treadmill.
14. There was a video recording of her playing cricket at what appeared to be a picnic ground or park, being the occasion of her grandson's birthday. She agreed that she had been standing for 15 minutes, half an hour at a time. [39] She agreed that she could stand "for 15 to 20 minutes, it doesn't bother me." She also agreed that she could lift and carry things and when asked what she was lifting and carrying she said "my grandchildren, mainly." She also agreed she carried fold up chairs from a car. [40]
15. She further agreed that she could "walk up one set of stairs" [41] and that she had been "standing and moving around for several hours" as shown in video taken the previous Sunday. [42] Having noted that she had been back at fulltime work for some time, the cross-examination continued: [43] "Q. Now, you've given evidence that you think you may only be able to keep going in your current job for a couple of years. Do you recall giving that evidence this morning? A. Yes, I do. Q. No doctor's said that to you, have they? A. I haven't, no. Q. Have you asked the hospital to give any consideration to changing around your duties? A. No. Q. Have you spoken to your GP about your concern you may only be able to keep working in your current job for two years? A. No, not at the moment, no. Q. In circumstances where you've given evidence that you can walk two to two and a half kilometres before you start to experience discomfort with your foot and knee, how certain are you with your answer that you think you will only be able to keep going in your current job for a couple of years? A. Sorry, you mentioned my walking, is that to do with the job? Q. Well, let me try that again. You agree that you can walk for about two to two and a half kilometres before you experience discomfort in your foot and your knee? A. Mm-hmm. Yes. Q. You agree that whilst you have some days which are better than others, you are able to stand without discomfort for 20 minutes at a time? A. Yes. Q. That at the moment, about 50% of your job involves you walking around? A. On some days, yes, yes, it does. Q. On average, 50%? A, Yes, yeah. Q. When you're walking around for your job, do you ever have to walk between two and two and a half kilometres at a stretch at once? A. In one stretch, no."
16. The trial judge did not deal specifically with much of the cross-examination of the plaintiff. Apart from concluding that her estimation that she might lose her job in a couple of years was too pessimistic, he did not reject the thrust of her evidence. However he concluded: [44] "It is clear that before the accident the plaintiff's earning capacity was unaffected by disability. It is also clear on her own evidence and the medical evidence I have accepted, that a considerable part of her work duties will be difficult for her to perform and that she is ill-advised to persist in such duties such that a change of employment will be required in the not too distant future."
17. In a further passage the judge referred to "the significant practical range of plaintiff's work restrictions as has been identified in her evidence and in the evidence of Dr Conrad and Dr Martin". [45]
18. The plaintiff saw Dr Brian Martin, an orthopaedic surgeon, on 10 April and 24 July 2013. He noted that she continued to suffer "mid-foot pain which is aggravated by walking, driving and wearing heels." In relation to her work capacity he stated: "I understand that Mrs Wurth works as an administration clerk. I would assume that she would be able to return to sedentary duties that do not involve repetitive or prolonged periods of standing, walking, carrying or squatting."
19. The plaintiff, in her evidence, gave as her own reason for not expecting to be able to work for much longer advice she had been given by Dr Martin that she might get arthritis in her foot. [46] In his report, Dr Martin acknowledged that he "may have mentioned [the possibility of a tarso - metatarsal fusion] at her first visit when I suspected that midfoot arthritis may have been present." However, he noted that no arthritis was to be seen on the MRI scan.
20. The statement of the trial judge that the medical practitioners had identified "work restrictions" for any part of her work duties, let alone a "considerable part" is not consistent with the evidence noted above. Nor was there any evidence to suggest that she would be "ill-advised to persist in such duties" or that a "change of employment will be required in the not too distant future." No specific reference was made to the opinion of Dr Kalnins in this context.
21. The simple fact was that, at the time of trial, and for some two years following the accident, she had been in fulltime employment in the same job she had held prior to the accident. That continued despite an apparently significant disability in her left knee, which was not shown on the probabilities to be caused by the accident. None of the doctors suggested a deterioration of the condition in her right foot, except for the "possibility" of arthritis developing in the future. No doctor was prepared to indicate that that was more than a possibility, nor to place a timeframe upon its materialisation. No medical practitioner opined that if arthritis did develop, she would then become unfit for her employment. Dr Martin at least appeared to consider that a surgical procedure might alleviate the condition, if it arose.
22. The trial judge concluded on the probabilities that she had suffered a diminution in her earning capacity which will result in financial loss. [47] That finding cannot be sustained. What may be accepted is that there has been some diminution of earning capacity, not presently resulting in financial loss which may, in the unpredictable future, give rise to such loss. Any allowance on that account must be based on a calculation of possibilities in accordance with Malec v JC Hutton Pty Ltd, [48] and subject to a significant discount, because of the possibility that the plaintiff may also suffer a worsening of the presently extant arthritis in her hands. The fact that the situation is likely to develop, if at all, some years hence, would require a significant discount in order to give a present value to the future loss.
23. Given the purely speculative nature of the exercise, an amount of $30,000 should be awarded. There should be no calculation for superannuation in addition to that amount.

(d) past domestic assistance

1. The trial judge noted that plaintiff claimed a sum of $40,070 for past domestic assistance. [49] He found that the plaintiff had received gratuitous domestic assistance "at an average of 8 hours per week" between "20 February 2009 and 27 August 2013". [50] The calculations, broken down by reference to the periods specified as the maximum amount payable pursuant to s 15 of the Civil Liability Act, gave a precise total of $47,219.56. The exercise of calculating damages by reference to the nearest cent of the rate which must not be exceeded is unnecessary. There was no justification for the trial judge awarding an amount some 15% higher than that claimed. However, the real question is whether any amount should have been allowed at all.
2. The injury occurred on 19 February 2011. The plaintiff was off work for eight weeks, then returning to work three days a week. After some four months, she had returned to her normal fulltime working week. By late October she had suffered the meniscal tear to her left knee.
3. When she was seen by Dr Kalnins, on 30 June 2011, prior to her return to fulltime employment, he noted: "She is being helped by her daughter in terms of domestic activity and my impression is that she will not require future domestic assistance."
4. Dr Berry, who saw the plaintiff on 16 September 2011, stated: "In terms of domestic assistance, the patient would have been unable to carry out any domestic activities for at least three months. Thereafter she would have needed limited help for another two months and there is no indication at this stage that she will require any future domestic assistance."
5. The next doctor to see the plaintiff was Dr Stephenson, on behalf of the appellant, who examined her on 2 November 2012. Dr Stephenson accepted that there had been a restriction in range of motion with respect to her right foot and ankle and consequent reduced agility. He did not think that that disability had any effect on her capacity to continue with normal office-based duties. Dr Stephenson accepted that it was reasonable that she have fulltime care for eight weeks post-injury and 28 hours per week for the following four weeks. He was then asked to comment on a claim for 14 hours per week since the date of accident and stated: "The current findings are not compatible with the need for any significant domestic assistance from now into the future. There may have been some need for assistance with the heavier work about the home or household to that degree since injury, but there were no indications that that degree of assistance is now required. I would suggest about two hours per week domestic assistance would be required in view of the restriction in range of motion of the right foot and ankle, that is, assistance with the heavier work about the home."
6. Subject to a typographical error in his first report, later corrected so that it was consistent with the passage set out above, Dr Stephenson agreed that there should be two hours per week allowed indefinitely.
7. Finally, there was the opinion of Dr Conrad who expressed the view in his first report of 6 March 2013 that: "Should her husband not be able to assist with the heavier part of her housework, cooking and cleaning and home and garden maintenance, she might need about six hours per week of Home Care assistance."
8. The trial judge said that the medical evidence "provides some useful insight into the plaintiff's claim for domestic assistance." [51] He then noted that neither Dr Stephenson nor Dr Berry had accepted that the required assistance extended for a period of six months. He rejected that evidence implicitly, without explanation.
9. The trial judge then noted Dr Conrad's evidence that the plaintiff "might need about six hours per week" of assistance, but rejected it, not on the basis that it was a tentative view, but on the basis that the evidence of the plaintiff and her husband supported a higher level of assistance, although he did not accept their evidence without qualification either.
10. The judge was entitled to put little, if any, weight upon hourly calculations provided by medical practitioners. No medical practitioner was qualified as expert in assessing the number of hours required for gardening, home maintenance or any other activity which might go into the purported assessment. It is difficult to imagine that the practitioners called in the present case could have been so qualified. No objection was taken to the evidence which was, on its face, inadmissible: however, the mere fact that it was admitted without objection did not require the trial judge to give it any weight at all. The real value of medical evidence in this area is in an assessment of the true extent of any physical or mental disability suffered by the plaintiff. That is because the key question is not what assistance the plaintiff has been provided by others, but the "reasonable need for the services to be provided". [52]
11. By way of example, the judge accepted Mr Wurth's evidence that, since his wife's accident, he has been "cleaning muddy floors, washing, hanging washing, doing some cooking, carrying out recurring cleaning due to dust accumulation, some ironing, gardening, all the lawn mowing, cleaning verandas, maintain the horse paddock and a variety of domestic duties." [53] Two problems arise with respect to that evidence. First, it is non-specific as to time and did not distinguish between the period immediately following the accident and subsequent months. Secondly, the implication supported by the evidence, was that the plaintiff continued to do cooking and ironing: that immediately raised a question as to why she was able to do some, but not all, of such activities. Thirdly, there was a real question as to the specific disability which led to Mr Wurth doing more domestic tasks than in the past. It is now necessary to assess those tasks with respect to the injury to the plaintiff's right foot, without regard to her knee. No explanation was provided as to why the injury to her right foot would prevent her placing clothes in a washing machine, removing them and hanging them on a line, dusting and carrying out various other domestic duties. Fourthly, there was no attempt to identify which of these services were provided "to" the plaintiff, within the terms of s 15 of the Civil Liability Act. [54] The fact that she had previously helped maintain the horse paddock, an activity wholly undertaken by her husband after the accident, does not mean that maintaining the horse paddock involved a service provided to the plaintiff.
12. In order to carry out the recalculation now necessary, the plaintiff's evidence must be evaluated afresh. She gave evidence as to the size of the property (10 hectares with a single storey home with three bedrooms, a kitchen, separate sitting and dining areas and a laundry) and referred to "farming pursuits" carried out on the land which involved fencing, mowing and caring for horses. She said that before the accident she did the interior housework and "participated" in activities relating to the outdoor pursuits. [55] She gave evidence of the specific activities she could not undertake in the first two months after the accident, which were extensive. By the time she returned to work, she said that "I would do the washing but I didn't, I couldn't hang it out. I could sweep the floor but I couldn't wash the floor." [56] She also said she "couldn't iron". With respect to the period after she returned to work fulltime, the question was reversed so as to seek evidence as to the household tasks "that you've not gone back to". [57] She identified, in response, "the heavy scrubbing of the bathroom and the floors". She was then led through a number of other activities: she agreed she could mop, but it didn't get the floor clean, that she could sweep and do "lighter cleaning tasks" but not "the heavier types of cleaning, the bathroom and heavy kitchen cleaning." [58]
13. In cross-examination, she agreed she could do the washing and put the laundry out on the line "as long as it's not a … big washing day". [59] She also agreed that, being coeliac, she and her husband cooked separate meals and she could stand in order to cook dinner. She agreed she could change the sheets, do dusting and wiping down benches. When asked to clarify what "the heavier work in the kitchen" included, she said "[c]leaning the oven and blinds in the kitchen and things like that." She also nominated "cleaning the cupboard doors because you've got to bend down to clean the cupboard doors, and the floor." [60] She was asked: "Q. What is it that you find uncomfortable about cleaning the oven? A. Because we have - I have to bend down to do it so it gets uncomfortable to stay bent down in a long time. Q. Is that because of your knee? A. And my ankle as well. Q. Do you mean your foot? A. Sorry, I, I do mean my foot."
14. No evidence was led as to how often various tasks were done. In cross-examination she was pressed on how often she would clean the windows on the outside, prior to the accident, and she said "once a month." [61] Nevertheless, she gave a global answer with respect to the period from when she went back to fulltime work until the trial to the effect that she obtained two hours assistance per day with the described activities.
15. Given that some activities, such as cleaning the oven and blinds, cleaning windows and cupboard doors were unlikely to be undertaken on a weekly basis, those activities needed to be distinguished from activities which were likely to be needed on a weekly basis, including cleaning floors, bathrooms and vacuuming.
16. The evidence given by Mr Wurth was not entirely satisfactory. When asked a general question as to what things he had been doing around the house in the last couple of years that he did not do before the accident, he nominated "probably washing up." When asked specifically "floors?" he replied "floor." [62] Broadly speaking, his evidence as to what he in fact did was supportive of his wife, but again it did not demonstrate any particular need. For example, he was somewhat ambivalent about whether the plaintiff had brought the firewood in at all before the accident or whether he had always done so; and as to whether she now brought firewood in, conceding "she might get kindling". [63]
17. An assessment of the plaintiff's evidence as to what she could and could not do about the house needed to be qualified in several respects. She agreed that since going back to work, she had also been using the treadmill at the gym regularly, perhaps twice a week. She agreed that she could walk for two - two and a half kilometres. There was surveillance video footage of her activities walking upstairs, carrying chairs and babies and playing cricket (though sometimes seated) over a period of some four hours on the afternoon of 25 August 2013. The judge referred to the video footage somewhat dismissively in the beginning of his judgment where he dealt with the question of credit of the witnesses, saying, "In my view, nothing within that DVD footage, or within the photographic stills extracted from that footage …, embarrassed the evidence that the plaintiff had given in this case." [64] In a sense that was true: when confronted with the evidence in cross-examination, the plaintiff painted a somewhat different picture of her abilities and disabilities than she had in her evidence-in-chief. In another sense, that evidence gave a very different picture of her disabilities from that which arose from her evidence in chief.
18. The onus lay on the plaintiff of establishing that the injury to her foot required that she be provided with six hours or more domestic assistance per week, in order to qualify for an award of damages for such assistance prior to trial. [65] The trial judge dealt with the issue by averaging the assistance required from the day following the accident through to the date of the trial. That exercise is not permissible. The assessment is to be made on a weekly basis and not an average over many weeks. Thus, the judge accepted that the plaintiff received 21 hours per week by way of assistance until she went back to work and thereafter 14 hours per week for a further period, presumably up to the time when she recommenced fulltime work. [66] That covered a period of no more than five months. During that period, it may be accepted that the plaintiff required assistance to be provided to her for well in excess of six hours per week, especially in the early weeks, before she returned part time to her employment.
19. For the period after five months, the plaintiff did not establish the requisite six hours of assistance per week, for the following reasons. (a) Her evidence of need, as supported by the medical evidence, was limited to the "heavier" domestic duties. The lack of clear evidence as to what these were, how often they were undertaken and how long each took did not allow an affirmative conclusion on the probabilities that they required six hours per week. (b) To the extent that Dr Conrad thought six hours of assistance might be needed, the indication was somewhat tentative, Dr Conrad did not have expertise to make such an assessment and, in any event, did not identify the activities which were included within that assessment. (c) The assessment undertaken by the trial judge did not distinguish between the disability resulting from injury to the foot and the injury to the left knee. (d) The assessment undertaken by the trial judge did not distinguish between "services provided to" the plaintiff and general activities undertaken on the property.
20. The plaintiff has failed to make good her claim for past domestic assistance.

(e) future domestic assistance

1. To the extent that the claim for future assistance depended upon satisfaction of the requirements of intensity and longevity contained in s 15(3) of the Civil Liability Act, they depended upon precisely the same evidence as that regarding past assistance, following return to fulltime employment. The thresholds not having been established for that purpose, the claim for gratuitous domestic assistance should have been rejected.
2. There remains a question as to whether future domestic assistance was recoverable at a lower rate of hours per week, at commercial rates. The assessment undertaken by the trial judge (erroneously referring to the statutory rate under s 141B of the Motor Accidents Compensation Act [67] ) continued the calculation for eight hours per week at $40 per hour for a period of 36 years, being the remainder of the plaintiff's life expectancy. That figure was discounted by 40% on account of the underlying condition of rheumatoid arthritis in the plaintiff's hands and the likelihood that the plaintiff and her husband would "downsize their property and their equine interest" over time. To these elements one might add the high likelihood that a level of domestic assistance would be required in the ordinary nature of things for some years before the plaintiff turned 87.
3. In order to award domestic assistance calculated at a commercial rate, the judge made a finding that it was "unlikely" that Mr Wurth will continue to provide those services. [68]
4. There were a number of issues underlying this assessment. The first was that Mr Wurth has a "busy working week as a truck driver". That, however, was not Mr Wurth's evidence. Rather, he said that he was working "casually" and that he worked five days a week for six months of the year and the other six months for three or four days. [69] He gave no evidence as to how long the hours were, but agreed that he did most of the work on the 10 hectare property, with, prior to the accident, some assistance from his wife. [70] He gave evidence that they had eight horses on the property.
5. The judge also took account of the fact that Mr Wurth "does not always carry out all domestic tasks to the plaintiff's satisfaction, and the plaintiff would prefer to have the services provided commercially." [71] The judge took the view that the extra duties assumed by Mr Wurth had placed "strain" on their marriage. No particular evidence was cited in support of this factor, nor was this Court taken to any such evidence. Further, it must have depended upon the finding as to the number of hours for which the plaintiff required assistance from her husband as a result of the tortious injury.
6. There is a question as to whether the trial judge was correct to deal with the matter on the basis of likelihood, [72] if by that it was intended to refer to probability. The judge referred [73] to the decision of this Court in Miller v Galderisi [74] at [15]. That paragraph merely referred to the absence of evidence that the gratuitous assistance then being provided would cease at some time in the future. The Court also said: [75] "The evidence accepted by the primary judge [as] the additional domestic assistance required as a result of the accident, assessed at four hours per week, was, since the accident and at the time of trial, being provided by the respondent's wife with limited assistance from his son. Whether that assistance would continue to be provided by them on a gratuitous basis was a factor which the primary judge was entitled to take into account. If that circumstance were to change in the future, domestic assistance would, foreseeably, be required from a commercial provider. However, that expense was neither immediate nor inevitable. No doubt the likelihood of the contingency would increase with time, but other factors would have a contrary tendency."
7. The other variables included the plaintiff's life expectancy, his pre-accident medical conditions, the disabilities resulting from the pre-existing conditions, the need for assistance resulting from age alone and the circumstances of the primary carer, his wife. The Court then addressed the question as to how these factors might be assessed by reference to the principles derived from Malec, noting that "the exercise is better described as a form of speculation guided by knowledge of the plaintiff's past and expectations, derived from general experience, as to the future." [76]
8. In Gordon v Truong [77] I said that "[t]he future possibility, namely that the plaintiff will obtain domestic assistance on a commercial basis, does not involve a finding on the balance of probabilities, but an exercise in prediction, in accordance with the principles established in Malec …." [78] I referred to the approach adopted in Miller v Galderisi. [79] On the other hand, Simpson J [80] with the agreement of Macfarlan JA [81] appeared to adopt an approach based on the balance of probabilities. In this Court counsel for the appellant accepted that the approach based on Malec should be accepted: counsel for the respondent did not disagree.
9. The present case was not run on the basis that, due to some change in circumstances, gratuitous assistance might cease and commercial assistance might be required. Accordingly, the present case did not involve speculation as to future events in foreseeable but unpredictable circumstances. Rather, it depended upon an expressed preference of the plaintiff to have services provided commercially.
10. In the absence of any precise evidence as to the heavier domestic work which required assistance as a result of the injury to the foot, it is not established that the plaintiff required more than three or four hours domestic assistance from her husband. Given his willingness to provide that assistance in the past, it was not unreasonable to expect that it would continue in the future.
11. The sum total of the plaintiff's evidence in this regard appears to have been the following, led from her by her counsel: [82] "Q. You know that part of your case involves a claim for some money to get somebody in to do these heavier chores inside the house? A. Yes. Q. How would you feel about that, paying somebody to come in and do the heavier chores? A. That would be, make life much, our marriage life much better."
12. That evidence provided no sufficient basis for a finding that Mr Wurth would not continue to provide the limited assistance required as a result of the injury to the plaintiff's foot, nor that, if an award were made on this account, there was any likelihood that it would be employed for the purpose of obtaining commercial domestic assistance. No such award should be made.

Conclusion

1. On the basis of the amounts set out above, together with an agreed amount of past out of pocket expenses of $236.70, the plaintiff should obtain an amount of $73,787.70. This should appropriately be rounded out to $73,800.00. She should have judgment in that amount, in lieu of that awarded in the District Court, such judgment to take effect from the date of the judgment in the District Court.
2. So far as costs are concerned, the trial was fought on issues of liability, contributory negligence and damages. Although the plaintiff has had limited success with respect to her damages, subject to two qualifications there is no reason why she should not retain her judgment for the costs of the trial. On the other hand, the appellant has been successful on the appeal and should have its costs in this Court.
3. The two qualifications are as follows: first, the appellant seeks that costs be limited in accordance with s 338 of the Legal Profession Act 2004 (NSW) in circumstances where the plaintiff does not recover damages in excess of a prescribed amount. Secondly, the parties foreshadowed the possibility that offers may have been made which will affect the appropriate costs order.
4. In these circumstances, it is appropriate to give a judgment for the amount calculated but to make no order at this stage as to the costs of the trial or the appeal. If the parties are able to agree costs, within 14 days, appropriate consent orders can be made by the Registrar. If the parties are not able to reach agreement, the appellant should file written submissions (including an affidavit setting out any calculations or offers of compromise) within 14 days of the date of this judgment. The respondent should have seven days to reply.

Orders

1. At this stage, the Court makes the following orders: (1) Allow the appeal and set aside order (1) made in the District Court on 13 September 2013. (2) In lieu thereof, give judgment for the plaintiff in the amount of $73,800 to take effect on 13 September 2013.
2. MEAGHER JA: I agree for the reasons given by Basten JA that this appeal should be allowed and judgment given for the respondent (plaintiff) in the amount his Honour proposes.
3. ADAMSON J: I agree with Basten JA.

Endnotes

1. Wurth v Sampco Pty Ltd t/as The Knickerbocker Hotel [2013] NSWDC 173.
2. Tcpt, 28/08/13, pp 80-81.
3. Tcpt, 27/08/13, pp 11-13.
4. Tcpt, p 15(30-(48).
5. Tcpt, p 16(5).
6. Tcpt, p 25(45).
7. Tcpt, pp 25-26.
8. Tcpt, p 26(5).
9. Tcpt, p 26(35).
10. Tcpt, p 27(30).
11. Tcpt, pp 82- 83.
12. Tcpt, p 24-25.
13. Judgment at [44]-[53].
14. Judgment at [44]. The judgment said "2012" but that was clearly wrong.
15. Judgment at [45].
16. Tcpt, p 79(35).
17. At [7] above.
18. Tcpt, p 81(40).
19. Judgment at [46].
20. Judgment at [47].
21. Judgment at [48] (emphasis added).
22. Judgment at [49].
23. Judgment at [50].
24. Judgment at [105].
25. Amended written submissions, par 32.
26. Tcpt, CA, 19/03/15, p 2(40).
27. Tcpt, p 33(15).
28. Judgment at [123].
29. Judgment at [124].
30. Judgment at [126]-[127].
31. Civil Liability Act, s 13(1).
32. [2012] NSWCA 13; 83 NSWLR 302.
33. Kerr at [23].
34. Report, p 5.
35. Tcpt, 27/08/13, p 18(5)-(10).
36. Judgment at [120].
37. Tcpt, p 33.
38. Ibid.
39. Tcpt, p 35(35)-(40).
40. Tcpt, p 36(15)-(25).
41. Tcpt, p 39(8).
42. Tcpt, p 40(35)-(40).
43. Tcpt, p 51.
44. Judgment at [125].
45. Judgment at [127].
46. Tcpt, p 52(20).
47. Judgment at [123].
48. (1990) 169 CLR 638.
49. Judgment at [133].
50. Judgment at [145]-[146].
51. Judgment at [134]
52. Civil Liability Act, s 15(2)(a).
53. Judgment at [143].
54. See definition of gratuitous attendant care services, s 15(1)(a) and s 15(2)(c).
55. Tcpt, p 9(25).
56. Tcpt, p 20(30).
57. Tcpt, p 20(50).
58. Tcpt, p 21.
59. Tcpt, p 29(15).
60. Tcpt, p 29(40)-(45).
61. Tcpt, pp 30-31.
62. Tcpt, p 62(15)-(36).
63. Tcpt, p 65(45).
64. Judgment at [5].
65. Civil Liability Act, s 15(3).
66. Judgment at [141]; Tcpt, p 21(45)-(50).
67. Judgment at [148].
68. Judgment at [154].
69. Tcpt, p 59(25).
70. Tcpt, pp 60 and 69-70.
71. Judgment at [154].
72. See at [96*] above.
73. Judgment at [154].
74. [2009] NSWCA 353 (Allsop P, Basten and Macfarlan JJA).
75. Miller at [19].
76. Miller at [22].
77. [2014] NSWCA 97.
78. Gordon at [26].
79. At [30]-[31].
80. At [133]-[134].
81. At [51].
82. Tcpt, p 22(42)-(48). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 May 2015