Smith v Alone

Smith v Alone - [2017] NSWCA 287 - NSWCA 2017 case summary — Zoe

[3]

HEADNOTE [This headnote is not to be read as part of the judgment] In 2011 the appellant was injured when he was struck by a motor vehicle driven by the respondent. In District Court proceedings commenced by the appellant, the respondent admitted liability and the parties agreed that damages should be reduced by 60% to reflect the appellant's contributory negligence. By judgment of 25 October 2016 Gibson DCJ assessed the appellant's damages and a judgment of $320,981 was subsequently entered in the appellant's favour. On appeal to the Court of Appeal, the appellant challenged the primary judge's finding that, after allowing a two year period for the appellant to undertake pain management and substance abuse withdrawal treatment, he would have a residual earning capacity. Secondly, the appellant challenged the discount of 35% made to his damages for vicissitudes. The primary judge made this discount principally on the basis that the appellant had "a significant alcohol problem" which "has led to increasingly serious problems in relation to alcohol related criminal offending". Thirdly, the appellant challenged the primary judge's decision not to award him any damages for future domestic care and assistance. Held, allowing the appeal, (per Macfarlan JA, Meagher JA agreeing, White JA agreeing with additional observations):

It was necessary for the primary judge, guided by the evidence, to make a practical assessment of the likelihood that the appellant would be able to obtain and retain the jobs postulated to be suitable for him. The respondent bore the evidentiary burden in this regard: [46]. Nominal Defendant v Livaja [2011] NSWCA 121; Mead v Kerney [2012] NSWCA 215; Kallouf v Middis [2008] NSWCA 61; South Western Sydney Local Health District v Sorbello [2017] NSWCA 201 considered. In assessing the appellant's future economic loss, the primary judge accepted the conclusions of a Job Match report. This report proceeded upon an assumption as to the appellant's disabilities that conformed with the views of a specialist in rehabilitation medicine, rather than the views of the appellant's treating orthopaedic surgeon. The nature and extent of the appellant's disabilities was however within the orthopaedic surgeon's area of expertise (and not that of the rehabilitation specialist): [45], [47], [84]. Further, on the limited evidence available it could not be confidently assumed that (as the primary judge found) if the appellant undertook pain management and substance abuse withdrawal treatment, such treatment would be effective within a period of two years. In these circumstances, her Honour erred in holding that the appellant had a residual earning capacity and in reducing his damages for future economic loss accordingly: [52]-[57], [83].
Based on the evidence, had the accident not occurred the appellant would undoubtedly have faced increasing risks that were higher than those an average person would have faced. Nevertheless, these risks were not so high as to warrant a discount of 35% for vicissitudes. Further, the figure that the primary judge adopted involved an element of double counting. This is because her Honour adopted a reduced figured for the appellant's pre-accident earnings on the basis of factors related to his alcohol addiction and its resultant criminality: [61]-[62], [85]-[92]. The discount adopted by the primary judge was unreasonable in the sense referred to in House v The King (1936) 55 CLR 499. A discount of 25% would adequately account for the above average vicissitudes the appellant was likely to have encountered: [63]-[65], [93]. State of New South Wales v Maxwell [2007] NSWCA 53; Taupau v HVAC Constructions (Queensland) Pty Limited [2012] NSWCA 293; Kwong v Abdulwahab [2016] Aust Torts Reports 82-268; NSWCA 107 distinguished.
Consideration must be given to a plaintiff's family circumstances when determining whether there is a need for future commercial care. The appellant's primary carers are his two sisters, each of whom has full-time jobs and their own families, and both live at a distance from the appellant. Based on these circumstances and on the appellant's evidence, he established a need for future commercial care and assistance for 4.5 hours per week. Accordingly, the primary judge erred in declining to award damages amounting to the cost of such assistance: [75]-[78], [94]. White v Benjamin (2015) 70 MVR 188; [2015] NSWCA 75 applied. ECS Group (Australia) Pty Ltd v Hobby [2014] NSWCA 193; Miller v Galderisi [2009] NSWCA 353; Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302 considered.

[4]

Judgment

MACFARLAN JA: On 17 November 2011 the appellant was injured when he was struck by a motor vehicle driven by the respondent. The appellant commenced proceedings in the District Court claiming damages from the respondent. The respondent admitted breach of duty and the parties agreed that the appellant's damages should be reduced by 60% to reflect his contributory negligence.
By judgment of 25 October 2016 Gibson DCJ assessed the appellant's damages [2016] NSWDC 265 and a judgment of $320,981 was subsequently entered in the appellant's favour.
On appeal to this Court the appellant challenges three aspects of the primary judge's findings.
The first challenged finding is that, after allowing a two year period for the appellant to undertake pain management and substance abuse withdrawal treatment, the appellant will be able to earn $250 per week for "some form of part time sedentary or unskilled work" (as distinct from his pre-accident work as an air conditioner installer), notwithstanding the injuries he suffered in the accident (Judgment at [192]).
The appellant contends that, contrary to this finding, the evidence indicated that he has no residual earning capacity. Therefore the primary judge should not have reduced his claim for future economic loss to reflect any such capacity.
Secondly, the appellant challenges the discount of 35% that the primary judge made to the appellant's damages on the basis of vicissitudes. Her Honour justified an increase from the conventional 15% allowance principally on the basis that the appellant has "a significant alcohol problem" which "has led to increasingly serious problems in relation to alcohol related criminal offending" (Judgment at [207]). The appellant contends that 15% was the appropriate percentage deduction.
Thirdly, the appellant challenges her Honour's decision not to award him any damages for future domestic care and assistance. Her Honour held that the appellant's needs did not meet the threshold for the award of the cost of gratuitous care, being at least six hours per week for at least six months (s 141B of the Motor Accidents Compensation Act 1999 (NSW)). Her Honour also held that the appellant was not likely to need commercial care or assistance in the future.

[6]

Dr Walker's evidence

The appellant was referred to Dr Walker on 15 February 2013. In his report of 30 April 2015, Dr Walker described the four surgical operations that the appellant had undergone since Dr Walker first saw him. Dr Walker expressed confidence that the appellant would not require further surgery and continued: "With regards to his ongoing symptoms. He has ongoing significant back pain. He also has pain in his left leg with stiffness in his ankle and subtalar joint. He is able to weight bear but is using a stick. He uses the walking stick 60% of the time. … At this point in time I am happy for him to continue with activities as he feels comfortable. No doubt most of his restrictions will be related to pain in his back and legs. He will have difficulty walking, standing and lifting for any significant period. Day to day activities will also be restricted by pain to some degree. I think it is unlikely he will ever return to his pre-injury duties [as an air conditioning installer]. These are fairly labour intensive and as such I think he will struggle. He would be best suited to office type work or a supervisory role. With regards to further intervention I would be hopeful that this is unlikely. I will need to see him in August with new x-rays or earlier if there is any deterioration of his symptoms. I suspect that in the longer term he will improve from a pain point of view and a mobility point of view to some degree but clearly will not return to normal function. He will have permanent disability. This cannot be assessed until I am sure the fracture has united. Permanent impairment could be assessed somewhere between twelve to eighteen months following his last operation."
Dr Walker's report of 23 August 2016 included the following: "It has been 12 months since I last reviewed him. I do not see any dramatic improvement in his symptoms. He has not returned to work. He has significant ongoing back, left knee, left tibial pain and left ankle pain. He uses a crutch for most activities outside the house. He has not returned to work. He continues on high dose narcotics to manage his pain. … He walks with a significant antalgic gait with external rotation of the left leg with walking. He uses a Canadian crutch most of the time in his right arm. … He has not improved in the last twelve months and is unlikely to ever improve significantly. This is with regards to pain and function, including his gait. … His only real work prospects are likely to be desk type jobs for which he has limited education and training. Given significant ongoing pain issues, I suspect even these duties would be difficult on any long term basis. I do not see any real prospects of him returning to the work force."
In cross-examination, Dr Walker described Oxycontin, the drug to which the appellant was and continues to be addicted, as "hospital grade heroin". He suggested that the number of patients who were able to come off the drug were few, although he accepted that pain management was outside his field of expertise (T 151-2).
Dr Walker said that he was referring to a period of "more than a few minutes" when he stated in his 23 August 2016 report that the appellant would have difficulty walking, standing and lifting for any significant period (T 154). Dr Walker said that the appellant could stand for hours without doing damage to his leg, but that the question of pain was another matter (ibid).

[7]

Dr Zeman

In his 24 March 2016 report, Dr Zeman (a specialist in rehabilitation medicine) said that the appellant no longer needed to use a crutch or continue his Oxycontin pain medication. He said that the Oxycontin use "should be ceased over a three month period". He concluded that the appellant was fit for "light to moderate physical work and sedentary work" and that the appellant's "most suitable vocational options are likely to be found in the Sales Workers and Labourers Category and with training the Technicians and Trades Workers Category of the Australian and New Zealand Standard Classification of Occupations (ANZSCO) First Edition". Dr Zeman indicated that the Vocational Capacity Centre, with which he was associated, had produced a "Job Match" report. This report was undertaken by Professor Pryor, a vocational psychologist with the Centre. Dr Zeman said that the jobs identified by Professor Pryor were within the appellant's "physical capacity".
Professor Pryor's report listed various jobs for which he considered the appellant to be suitable. The first was "SALES ASSISTANT (Hardware)". The activities involved in this job category were stated to include "stacking and displaying goods for sale, and wrapping and packing goods sold".
The next category was "HORTICULTURAL NURSERY ASSISTANT - Light". The report said that this category may include tasks such as "loading, unloading and moving garden supplies and equipment" and "cleaning gardens and removing rubbish".
The third and fourth categories were "RENTAL SALESPERSON - Equipment" and "PRODUCT EXAMINER - Light Products". It was said that the fifth category ("TICKET SELLER") may include "assisting passengers to board and alight from vehicles and assisting passengers with baggage" and that the sixth category ("MATERIALS RECYCLER - Light") may include moving "reusable materials to holding, recycling or processing areas". The seventh and eighth categories of "LOCKSMITH" and "MOTOR VEHICLE PARTS INTERPRETER" were said to require the appellant to undertake formal retraining in order to be suitable for these jobs.
Only in respect of the "SALES ASSISTANT (Hardware)" category did the Centre's search for job vacancies in Campbelltown and the western suburbs of Sydney reveal the availability of any jobs (3 jobs). The report countered this negative information by stating: "Although a limited number of advertised positions were found at the time of review, this may not be surprising since placement is often sourced through unadvertised means".
When it was suggested to Dr Zeman in cross-examination that the appellant's "only real work prospects are likely to be desk type jobs", he replied: "A. He is suitable - well that would be one area. The only difficulty might .. (not transcribable).. work and I consider that he would be able to walk around. Dr Walker hasn't put any limitations on his mobility, apart from ..(not transcribable).. surfaces and even then I would not feel - I would not agree on that, but, I mean, I agree he can't do any manual work and could go back to the sort of physical work that he was doing to call artificial work, but I don't think he's got - physical prospects of him being able to do light work and certainly sedentary work, it doesn't necessarily have to be one that requires having to ..(not transcribable)" (T 261-2).
Dr Zeman's cross-examination concluded as follows: "Q. Mr O'Keefe asked you some question about OxyContin and you expressed some views. Doctor as much as we'd all like the world to be different, you'd accept this wouldn't you, that people who are on Oxycontin for a very long period of time have a lot of trouble getting off it? A. That's correct. Q. This man's prognosis with respect to his use of OxyContin after this period of time is pretty bleak isn't it? A. Well that's the sort of question you should be asking somebody who's involved in the nature of substance abuse but I would very likely back what you say is true" (T 265).

[8]

The appellant's work history

The primary judge summarised the appellant's work history as follows: "(a) From the time the plaintiff left school until approximately 2005, he was working in the country in rural occupations. He received income of $62,400 for farm work in 2001 and a similar salary for similar work in 2002. He could not recall if he filed any tax returns for 2003, 2004, 2007 or 2008. His tax returns from 2001 onwards have been prepared by an accountant in 2013 (T 88) after he suffered the accident the subject of these proceedings (T 119). (b) He was unemployed during the 2005 financial year and received 'Government allowances' of $12,806 for this period. (c) In about 2005 to 2006 he came to Sydney but no tax returns are available for 2006 or 2007. He agreed in cross-examination that he could have been unemployed for parts of the time during these years. (d) In 2008, he earned $47,879 as an air conditioning installation technician. He earned slightly more in 2009, and again in 2010 ($50,612). He was an independent contractor at this time, and made a tax deduction claim for car expenses, although for most of his working life (including this period of time) he had been disqualified from driving by reason of drink-driving convictions. (e) His earning capacity was disrupted in the last six months of 2010 due to his imprisonment for six months. His taxable income of $33,339 for the financial year before the accident included payments from Newstart for the period 20 December 2010 (the date of his release from gaol) to 25 February 2011. (f) He returned to work, for Sea-air, in mid-February 2011, but ceased employment there on 27 June 2011, when they could not offer full time work, according to evidence of Mr Kohlenberg. He was then unemployed until 12 October 2011. It was about five weeks after he was employed by Complete Air Conditioning that he was injured. I also note that he was paid a lump sum by Complete Air Conditioning after the accident which appears unrelated to his weekly earnings" (at [38]).

[12]

Future economic loss

Her Honour said the following concerning Professor Pryor's evidence: "Professor Pryor concluded that the plaintiff had a variety of knowledge, skills and abilities and that, while he would not be able to resume his pre-injury employment, he could consider sales and lighter work. A job match report for sales assistant positions and other similar jobs including 'a ticket seller, a locksmith and a motor vehicle parts interpreter' is provided, as is a labour market analysis report prepared by a Ms Liz Atteya. … … A psychologist such as Professor Pryor has the training to assess intellectual capacity and is also familiar with the job market and job requirements, by reason of the specialist training undertaken by psychologists working in this area of their profession. As to the plaintiff's physical limitations, Professor Pryor has the advantage of being guided by medical reports on this subject, in the same way that an occupational therapist is guided by medical reports. I am satisfied that Professor Pryor has the expertise to make assessments as to the plaintiff's employability" (at [131], [133]-[134]).
Her Honour said the following in relation to Dr Zeman (at [136]-[138]): "Dr Zeman carried out a physical examination of the plaintiff and obtained a detailed history of the accident, resulting medical symptoms, vocational history and current ongoing disabilities. The vocational assessment involved consideration of the plaintiff's personal, educational and employment background and the psychometric evaluation of his intellectual skills and personal preferences. He considered the plaintiff's most suitable vocational options were likely to be found in the sales worker and labourer categories, and provided a job match on the basis of each of the assessments he carried out. He concluded: 'The medical assessment concluded that Mr Smith is fit for light to moderate physical work and sedentary work. His leg fractures have united and any infection has resolved. Some intermittent left neck pain may occur but his pains at this stage depend predominantly on factors unrelated to the degree of underlying organic pathology.' … Dr Zeman did not accept that the plaintiff had back pain and altered gait from using crutches (T 251), noting that CT scans had not demonstrated any support for this. He considered that the plaintiff should stop taking Endone and using a crutch. There was "no significant radiological sign of severe osteoarthritis in his knee" (T 256) and his orthopaedic problems have resolved (T 258). In his opinion, as a rehabilitation specialist, the plaintiff is able to perform jobs of the kind outlined by Professor Pryor (T 260 - 264). He considered that Dr Walker's observations about the plaintiff's ongoing pain needed to be seen in that context: 'I will not agree with Dr Walker's ‑ I can understand why Dr Walker has said that, but I will not agree that there is an ongoing course for significant pain and functional limitations. Where orthopaedic people have difficulty accepting the pain is a symptom, you know, where this is a physical reason, sure, when there is ‑ when things have built up, there is some problems, but certainly not the problems that he is complaining of or the limitations that he has got at the moment. I have seen people, right like Mr Smith and they should not be disabled as he claims to be.' (T 259)
The primary judge found that whilst the appellant's literacy skills were poor, they were sufficient for him to be able to obtain employment of the kind proposed by Professor Pryor and Dr Zeman (Judgment at [161]).
Her Honour found: " … The defendant has discharged the onus of finding vocations open to the plaintiff which relate to his age, education and personal circumstances. Dr Walker's observations as a surgeon that patients with long recoveries such as the plaintiff has had are of some empirical value, but the evidence of the experts in this field, Professor Pryor and Dr Zeman, is compelling, and their opinions (unlike those of Dr Walker) are within their level of expertise. Taking all of the above into account, I do not accept that the plaintiff is incapable of working and that his future economic loss should be assessed on that basis. He still has a residual capacity for work, and I consider that the future economic loss estimates made by the defendant reflect both his future work capacity and a reasonable estimate of his residual work capacity" (at [186]-[187]).
The future economic loss estimates to which her Honour referred in the above passage were the respondent's submissions that $1,000 net per week be allowed for two years "while plaintiff undertakes pain management/substance abuse withdrawal" treatment and then "assume $250 p/w residual earning capacity for part-time sedentary unskilled work" (Judgment at [142]). The effect of these submissions was that after two years, the appellant's future economic loss would be assessed at $750 per week ($1,000 per week less $250 per week residual earning capacity).
Her Honour found that these submissions were supported by the reports of Professor Pryor and Dr Zeman and continued: " … It was not only Dr Zeman's view, but also that of Dr Walker, that the plaintiff needed to stop taking addictive pain medication and using a crutch. Dr Zeman said that the plaintiff's complaints of pain and altered gait from crutches should no longer be a medical issue as his orthopaedic problems had resolved and there was no evidence on CT scans of significant problems. I am satisfied that the evidence of Professor Pryor and Dr Zeman as to the plaintiff's future earning capacity should be accepted" (at [191]).

[13]

Allowance for vicissitudes

After referring to 15% as the conventional allowance in future economic loss damages awards for vicissitudes, her Honour referred to the allowance made in three cases in which the respective plaintiffs had prior criminal records or histories of drug or alcohol abuse.
First, in State of New South Wales v Maxwell [2007] NSWCA 53, a 50% vicissitudes allowance was made. As her Honour observed, this was because of the plaintiff's "poor work record, criminal background, drug-taking, anger management and a pre-existing back condition" (Judgment at [201]).
In Taupau v HVAC Constructions (Queensland) Pty Limited [2012] NSWCA 293, the usual allowance for vicissitudes of 15% was increased to 25% to take account of the plaintiff's pre-existing heart condition and periods of imprisonment which had interrupted his employment history (Taupau at [214]).
Thirdly, in Kwong v Abdulwahab [2016] Aust Torts Reports 82-268; NSWCA 107, a District Court judge's allowance of 25% for vicissitudes (by reason of the plaintiff's prior depressive illness, drug use and back condition) was not interfered with on appeal (although the allowance does not appear to have been the subject of specific challenge).
The primary judge said in relation to the present case: "I am satisfied that the plaintiff has a lengthy history of alcohol abuse which, prior to the accident, began to impact upon his earning capacity and which would have increasingly curtailed his capacity for employment as he grew older, as well as exposing him to risks … " (at [177]).
Her Honour concluded on this issue: "All of the defendant's medical evidence points to the plaintiff having a significant alcohol problem and the material in Exhibit 1 demonstrates that this has led to increasingly serious problems in relation to alcohol related criminal offending. The percentage for vicissitudes was increased to 25% in both Taupau v HVAC Constructions (Qld) Pty Ltd (due to the plaintiff's criminal activities) and in Kwong v Abdulwahab (due to substance abuse). In these proceedings, both these factors are present. Taking all of the above into account, I propose to increase the percentage for vicissitudes to a figure above 25%. I do not consider, however, that this is a case comparable to State of New South Wales v Maxwell where vicissitudes were increased to 50%, where the plaintiff not only had a criminal background and drug taking problems but also anger management (sic) and a pre-existing back condition. Accordingly, I propose to increase the percentage for vicissitudes from 25% to 35%. The amounts awarded for future economic loss set out above should accordingly be reduced by 35%" (at [207]).

[14]

Future domestic care and assistance

The appellant's claim for an award of damages in respect of domestic care and assistance was based primarily on his own evidence, that of his sisters Rebecca and Tammy (who were his primary carers) and that of Ms Kate Jackson, an occupational therapist who gave evidence in the appellant's case.
The primary judge found that the appellant had a substantial need for domestic care in the period prior to the date of the hearing in the District Court. However, her Honour found that at some point prior to the hearing the appellant came to need less than six hours care per week (this being the threshold for recovery of the costs of gratuitous care referred to in s 141B of the Motor Accidents Compensation Act). As her Honour was unable to determine precisely when this occurred however, she allowed for eight hours of care and assistance per week until the date of the hearing.
Her Honour reached the following conclusions in relation to future care and assistance: "(a) Ms Patterson's evidence was that if commercial assistance was required, the plaintiff's three-bedroom home could be commercially cleaned in its entirety in 1.5 to 2 hours per week. I am satisfied, from the material set out in Ms Patterson's report, that the plaintiff is in fact capable of doing a number of tasks himself and any need for commercial help would be for only a small portion of this time. (b) One of the reasons given by the plaintiff's sisters for the amount of assistance required by the plaintiff (and the plaintiff himself gave this evidence) was that the plaintiff's memory had been affected by the accident, and that for this reason, as well as by reason of his ongoing psychiatric problems, he required a degree of motivation and reminding to perform tasks as he might otherwise forget, for example, to complete a cooking task, and was often depressed and in bed. There is no medical evidence that the plaintiff suffers from any loss of memory problems referrable to the accident and, as I have already noted, I am satisfied that the plaintiff's depression was a pre-existing condition. (c) This is not a case where the plaintiff is unable to drive his motor vehicle or unable to get around his home without a crutch. His shopping is done by his sisters, who can obtain a store discount, and this is likely to continue for this reason. His problems with cooking can be remedied by equipment such as a kitchen stool to sit on and a longhandled device to pick up items he drops. I am satisfied that he needs no assistance in these areas. I am satisfied that the plaintiff requires, at best, assistance with the cleaning of his home in the form of performance of the more difficult tasks, and that this assistance would amount to around one to two hours per week. Given the evidence of the plaintiff's sisters who presently provide care and they intend to continue to do so in the future, I am satisfied that this allowance for gratuitous care could not meet the ongoing threshold for such care to be compensable (Australia and New Zealand Banking Group Ltd v Haq [2016] NSWCA 93 at [47]-[53]), and there is unlikely to be a need for commercial assistance in the future" (at [266]-[267]).

[15]

FUTURE ECONOMIC LOSS

In the assessment of the appellant's future economic loss, findings about the physical disabilities, if any, which the appellant was likely to experience in the future were of critical importance.
As noted earlier, on 30 April 2015 Dr Walker reported that the appellant had "ongoing significant back pain", pain in his left leg and, in the future, would have "difficulty walking, standing and lifting for any significant period" ([10] above). On 23 August 2016 Dr Walker reported that, upon further review of the appellant, he did not observe any "dramatic improvement" in the appellant's symptoms compared to those that he had observed 12 months earlier. Dr Walker opined that the appellant's pain and functional issues were "unlikely to ever improve significantly" ([11] above).
These views contrasted with those of Dr Zeman, who considered that the appellant was fit for "light to moderate physical work and sedentary work" ([14] above). In cross-examination, Dr Zeman said that he did not agree with Dr Walker's view that the appellant's "ongoing back, knee, tibia, and ankle pain are directly related to his initial tibial fracture and the lengthy time required to get the tibia to unite" (T 258). Dr Zeman's view was that "[t]he orthopaedic problems have now been resolved" and that the appellant should not have any continuing pain (T 258-9). However as Dr Zeman acknowledged, he was not an expert on orthopaedic questions, unlike Dr Walker.
The point at issue was an orthopaedic one and therefore Dr Walker was the only witness with the expertise to express a view on it. Indeed the primary judge described Dr Walker as "the most reliable source for accurate information as to the plaintiff's disabilities" (see Judgment at [112]). As a result, her Honour should have accepted Dr Walker's opinion about the appellant's ongoing orthopaedic problems. Instead, her Honour proceeded upon the assumption that the appellant did not have the continuing physical disabilities identified by Dr Walker and was therefore, as Dr Zeman said, fit for light physical work, in particular work that involved standing or moving about for significant periods. Her Honour accepted the views of Professor Pryor and Dr Zeman regarding the jobs that the appellant would be able to perform because "their opinions (unlike those of Dr Walker) are within their level of expertise" (Judgment at [186]). However a proper identification of the jobs that would be suitable for the appellant required, at the outset, accurate determination of the orthopaedic question of the extent of the appellant's likely future disabilities. As I have said above, Dr Walker was an expert in relation to this question. Dr Zeman was not, and neither was Professor Pryor.
It was necessary for the primary judge, guided by the evidence, to make a practical assessment of the likelihood of the appellant being able to obtain and retain the jobs that the respondent postulated would be suitable for him (Nominal Defendant v Livaja [2011] NSWCA 121 at [65]; Mead v Kerney [2012] NSWCA 215 at [24]-[25]; South Western Sydney Local Health District v Sorbello [2017] NSWCA 201 at [74]). In this regard the respondent bore "the evidentiary burden of adducing evidence of what work the plaintiff is capable of performing and what jobs are open to a person with such capacity" (emphasis added) (Kallouf v Middis [2008] NSWCA 61 at [52]; Mead v Kerney at [26]; South Western Sydney Local Health District v Sorbello [2017] NSWCA 201 at [74]).
In assessing the appellant's future economic loss, her Honour accepted the conclusions of the Job Match report signed by Professor Pryor as to jobs for which the appellant was suitable. The report proceeded upon an assumption as to the appellant's capabilities that conformed with Dr Zeman's views, rather than those of Dr Walker.
Most, if not all, of the jobs identified in the Job Match report would inevitably involve substantial periods of standing - for example the sales assistant (hardware), horticultural nursery assistant (light) and rental sales person (equipment) jobs. Indeed, some of the jobs were expressly stated to be likely to involve activities inconsistent with Dr Walker's views. For example, the sales assistant (hardware) job was said to involve "stacking and displaying goods for sale, and wrapping and packing goods sold", and the ticket seller job description included "assisting passengers with baggage" (see above at [15] to [17]). No specific comparison between the job requirements and the appellant's disabilities was undertaken, either in relation to the jobs it was said he could do without training, or those which would require formal training. In short, the identified jobs appeared to be inconsistent with Dr Walker's views regarding the appellant's capabilities, an inconsistency which her Honour did not reconcile. Instead her Honour appeared to assume, in my view erroneously, that Dr Zeman's views regarding the appellant's capabilities should be accepted.
Moreover, the appellant gave evidence in chief as to why he would not be able to do the postulated jobs (T 38-44). He referred, for example, to his inability to stand for extended periods and his lack of computer skills. The primary judge rejected this evidence as "an opinion unsupported by evidence" (Judgment at [160]). However, important aspects of the appellant's evidence were supported by Dr Walker's evidence, at least in respect of the appellant's inability to walk or stand for lengthy periods without pain.
With one limited exception, the appellant's evidence on this topic was not the subject of cross-examination. The exception was that it was suggested to him that he could operate a cash register if he was able to shift his weight from a stool to standing up. His response was unclear but the issue was not pressed further.
A further difficulty with the primary judge's finding that the appellant has a residual earning capacity which he will be able to utilise is as follows.
As I noted above (at [31]), her Honour found that, after the expiration of a two year period during which the appellant would undertake pain management/substance abuse withdrawal treatment, he would be able to earn an estimated $250 per week which would reduce his estimated future economic loss from $1,000 net per week to $750 net per week.
Implicit in this finding is an assumption that the pain management and substance abuse withdrawal treatment would be effective to overcome the appellant's present pain and his addiction to the drug Oxycontin. However, the validity of that assumption was not supported by the evidence. In particular, no-one who had the expertise to make good that assumption, for example a pain management expert or drug addiction treatment expert, was called to give evidence.
Moreover, such evidence as there was (albeit from doctors speaking from their experience rather than on the basis of specific relevant qualifications) suggested that the assumption could not confidently be made.
In this regard, Dr Zeman agreed that "people who are on Oxycontin for a very long period of time have a lot of trouble getting off it" and said that it was very likely that the appellant's prognosis for being able to cease his use of Oxycontin was "pretty bleak" (T 265). The comments of Dr Walker, who described Oxycontin as "hospital grade heroin", were to similar effect (see [12] above).
In these circumstances, it was erroneous for the primary judge to assume that, after the expiration of the two year treatment period, the appellant would be able to earn $250 per week from employment. The allowance of a two year period for pain management and substance abuse withdrawal treatment, during which time no income would be earned, was a recognition that without effective treatment the appellant was unable to earn significant income.
For these reasons, the appellant succeeds on the first issue on appeal. The primary judge erred in making a deduction from the damages the appellant would have otherwise been awarded for future economic loss on the basis that he could exercise a residual earning capacity. Her Honour should have instead found that on the evidence before her the appellant did not have any residual earning capacity.

[16]

ALLOWANCE FOR VICISSITUDES

Both parties accepted that the usual discount to damages for future economic loss that is made for contingencies or "vicissitudes" is 15%. As the plurality said in Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 at 497; [1995] HCA 53, this discount is to "take account of matters which might otherwise adversely affect earning capacity" and "death apart, 'sickness, accident, unemployment and industrial disputes are the four major contingencies which expose employees to the risk of the loss of income'" (ibid, citing Harold Luntz, Assessment of Damages for Personal Injury and Death, (3rd ed 1990, Butterworths) at 285).
The question that arises in the present case is whether the primary judge was justified in taking the view that the vicissitudes of life which the appellant would have faced had he not had his accident were greater than those faced by the ordinary person in the community, in fact so much greater that a discount of 35%, rather than 15%, was justified.
The primary judge's view was principally based upon her finding that the appellant had "a significant alcohol problem" that "has led to increasingly serious problems in relation to alcohol related criminal offending" (see [38] above). Her Honour also had regard to the possibility of the appellant's alcohol consumption giving rise to the risk of a significantly disabling injury (Judgment at [90]). In fact, the accident that was the subject of these proceedings provided an example of the risks the appellant would have faced. On that occasion the appellant, whilst intoxicated, stepped off a traffic island into the path of the respondent's vehicle. His fault was reflected in the parties' agreement that his damages award should be reduced by 60% to account for his contributory negligence.
The primary judge was at pains to avoid double counting against the appellant and thus stated that the appellant's "problems with alcohol (and their interaction with criminal behaviour) are matters relevant to vicissitudes", rather than future earning capacity (at [173]). However her Honour adopted a reduced figure for the appellant's pre-accident earnings ($1,000 rather than $1,200) on the basis that, on average, he worked less than 12 months per year (Judgment at [190]-[193]). To the extent that these periods of unemployment occurred when the appellant was incarcerated, the reduced figure took into account his alcohol addiction and its resultant criminality. It therefore involved an element of double counting.
To the extent that her Honour anticipated that, but for the accident, there would have been an increase in the appellant's offending and other concomitants of alcohol addiction in the future, she was justified in increasing the allowance for vicissitudes. The appellant gave the following evidence that was relevant to this issue: that he was affected by alcohol on each of the occasions that he committed crimes; that he had problems in the past because he became violent when he was drunk; that in 2005 he was willing to drive a motor vehicle while disqualified; that after being released from prison in November 2010 his drinking habits continued and he got into trouble as a result; that in the months before the accident he was having perhaps six or eight beers after work; that in March 2012, three months after the accident, he assaulted a taxi driver whilst he was intoxicated; that up to the time of the accident he had no intention of changing his drinking habits; that he became reckless when he got drunk; and that when he was drunk he engaged in behaviour he would not engage in if he were sober.
The decision to allow a particular discount is an evaluative decision to which the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40 are applicable. Thus, in the absence of specific error (of which none is identified here), such a decision will not be reversed on appeal unless it is found to be "unreasonable or plainly unjust". To my mind, the primary judge's allowance of 35% was however unreasonable in this sense. The point is very much one of impression, but it seems to me that an increase from 15% to 25% (which represents an increase of two-thirds of the normal percentage) would adequately account for the above average vicissitudes that the appellant would have been likely to face but for the accident. I take into account in this respect that the appellant had been drinking alcohol heavily for some years prior to the accident, yet had been able to earn substantial income in most years. The risks he faced in the future were undoubtedly higher than those an average person would have faced, but I do not consider that they should be regarded as more than double those facing the average person. After all, the average person can hardly be regarded as a paragon of virtue when it comes to heavy drinking.
Percentage deductions adopted in other cases are of little assistance on questions such as the present because the factual circumstances of each case are different. In particular, I note that in each of the decisions in Maxwell, Taupo and Kwong to which the primary judge referred (see [34]-[38] above), the respective plaintiffs had a pre-existing medical condition in addition to their other problems, unlike the appellant in the present case.
For these reasons, the discount for vicissitudes should be 25% rather than the percentage deduction of 35% applied by the primary judge.

[18]

The hours of care and assistance that the appellant will need in the future

In a schedule contained in her report, Ms Patterson, an occupational therapist, identified six different types of care and assistance required by the appellant. These, and Ms Patterson's estimates of the weekly hours referable to them, were as follows: shopping (1.5 hours), car maintenance (0.5 hours), transportation and errands (3 hours), cleaning, cooking and laundry (9 hours), garden maintenance (0.5 hours) and indoor and outdoor maintenance (0.5 hours). These periods total 15 hours.
On appeal, the respondent conceded that the last two items (totalling 1 hour per week) should be allowed and that her Honour erroneously overlooked them. He also conceded that the second item (car maintenance: 0.5 hours) was appropriate. The respondent also submitted that the primary judge's assessment of the appellant's need for assistance with cleaning his home as being 1-2 hours per week was reasonable. Thus the respondent accepted that a total of 3.5 hours care and assistance per week was needed, in contrast to the total of 15 hours estimated by Ms Patterson.
The appellant did not provide any good reason for this Court to depart from the primary judge's rejection of the need for assistance in relation to shopping (1.5 hours) and transportation and errands (3 hours). Her Honour was satisfied "that the plaintiff is able to drive to the shopping centre and to carry out small grocery shopping tasks; he does not need assistance in unpacking items of this kind. Nor does he need transportation and community access" (Judgment at [264]). These findings had a good foundation in the evidence before her Honour.
The remaining item in dispute relates to cleaning and other domestic services. The primary judge found that the estimates given on behalf of the appellant for performance of these activities were excessive, that the appellant's three bedroom home could be "commercially cleaned in its entirety in 1.5 to 2 hours per week" and that the appellant is capable of doing many tasks around the home himself. Again, the appellant has not demonstrated that there was any error in her Honour's approach. Her Honour had the advantage of hearing the whole of the very detailed evidence concerning the appellant's domestic needs. This included evidence from the appellant, his two sisters and Ms Patterson. Her Honour concluded that the claimed needs were exaggerated. In these circumstances, 2 hours per week should be accepted as the appropriate figure for cleaning, with another hour allowed for the other domestic tasks that the appellant is unable to perform.
As a result, the appellant's need for future care and assistance should be accepted as 4.5 hours per week. This figure reflects an allowance of 3 hours per week for cleaning and other domestic tasks, half an hour for car maintenance and 1 hour for gardening and other indoor and outdoor maintenance.

[19]

Commercial care and assistance

As I have found that the appellant's need for future care and assistance does not amount to at least 6 hours per week (being only 4.5 hours per week), s 141B precludes him from recovering damages for the value of care and assistance to be provided to him gratuitously (see above at [7]).
In Miller v Galderisi [2009] NSWCA 353, this Court set aside an award of damages for commercial domestic assistance in circumstances where there was no evidence that the gratuitous assistance being provided at the date of the hearing would cease at some time in the future, and thus render commercial care necessary. The Court said in that case: "The primary carer was the [plaintiff's] wife. At the date of trial, she was 51 years of age. She was sufficiently fit and healthy to be providing the assistance [the plaintiff] required at that time and, indeed, was in receipt of a carer's pension for that purpose. Undoubtedly age will weary her, but, apart from the usual contingencies there was no reason to suppose that she would not continue to be able and willing to assist him for many years to come" (at [21]).
Likewise in ECS Group (Australia) Pty Ltd v Hobby [2014] NSWCA 193 an award for the cost of commercial care was refused on the basis that there was no evidence that the gratuitous care currently being provided would not continue to be available. In that case, the plaintiff lived with her parents, and her mother did the household work. The evidence indicated that that gratuitous care would continue to be available to the plaintiff for the five years that she would be likely to need it.
As Basten JA (with the concurrence of Meagher JA) stated in White v Benjamin (2015) 70 MVR 188; [2015] NSWCA 75 at [88], consideration must be given to a plaintiff's family circumstances for the purpose of determining whether commercial care will be needed in the future. In that case, these circumstances included that the plaintiff's husband was self-employed and apparently busy (at [88]). The Court made an award for the cost of commercial assistance, deducting 15% for vicissitudes. Basten JA said (at [92]) that "although there is a significant chance that commercial assistance will not be obtained, a greater reduction would be self-fulfilling": that is, if the plaintiff's damages were reduced further, she might be unable to afford commercial assistance and therefore not be able to obtain it, however much she wanted or needed it.
Similarly in Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13, no assumption of the continuity of gratuitous care was made where the main carer was a long-term friend, rather than a family member (see [46]).
In the present case, I consider that the appellant has established a need for commercial care and assistance for the hours that I have identified above. As I noted earlier, his primary carers are his two sisters. They have their own full-time jobs and families (each having two children) and live at a distance from the appellant. It is reasonable to assume that if the appellant has funds available to pay for commercial assistance he will use them to obtain that assistance. Clearly, he is embarrassed by having to rely on his sisters. He said in evidence that he did not like his family and friends having to take time out of their lives to help him and that he would replace their services with those from commercial providers if he had the money to do so (T 53). He also commented that it was "hard on Rebecca [the sister who is his main carer], she works 40 hours a week as well" (T 54).
For these reasons, damages should be awarded to the appellant for the cost of future care and assistance amounting to 4.5 hours per week.

[20]

ORDERS

For these reasons, the appeal should be allowed. The respondent must pay the appellant's costs as the appellant has been substantially successful on the three issues on the appeal. I propose the following orders: 1. Direct the parties to attempt to agree upon a form of orders to give effect to these reasons for judgment. 2. If the parties are unable to agree upon short minutes of order, and to lodge them with the Court within 14 days of this judgment, direct the appellant within a further 7 days to file and serve his proposed short minutes of order with supporting submissions. The respondent is directed to do likewise within a further 7 days and any reply by the appellant is to be filed within a further 7 days.
MEAGHER JA: I agree with Macfarlan JA's reasons and the orders he proposes.
WHITE JA: I have had the advantage of reading in draft the reasons for judgment of Macfarlan JA. I agree with his Honour's conclusions and proposed orders. Because we are differing from the learned primary judge, I will briefly state my reasons on the first two issues in my own words without recapitulating the facts more than is necessary.
As Macfarlan JA explains, there were essentially three grounds of challenge to the primary judge's assessment of damages. The first challenge was to the primary judge's finding that the appellant had a residual earning capacity of $250 after tax per week after a period of two years. The second challenge was to her Honour's decision to reduce damages for future economic loss by 35 per cent for vicissitudes. The third challenge was to her Honour's finding that at best the appellant's attendant care needs would be provided gratuitously by his sisters and would amount to only around one to two hours per week. This fell below the threshold for including in an award of damages compensation for the value of gratuitous attendant care services (Motor Accident Compensation Act 1999 (NSW) s 141B(3)(a)).
For the reasons Macfarlan JA gives, I agree with his Honour's conclusion that the primary judge erred in concluding that the appellant had a residual earning capacity of $250 net per week after two years and reducing the calculation of damages for future economic loss accordingly. The assumptions upon which the respondent's submission before the primary judge proceeded in this respect was that whilst the appellant remained addicted to opioid painkillers, he did not have an earning capacity of any value, but that it was reasonable to expect that he would be free of that addiction after two years. There was no evidence to justify the latter assumption. Both doctors who expressed opinions on that question from their own experience, albeit they were not pain management specialists, were gloomy about the appellant's prospects of so freeing himself from addiction.
In any event, the evidence did not justify a finding that there was anything more than a wholly negligible prospect of the appellant's finding future employment. The primary judge considered that Dr Walker's reports "should be regarded as the most reliable source for accurate information as to the plaintiff's disabilities". Dr Walker was of the opinion that the appellant's disabilities were such that the appellant would only be able to work at a desk job and, given significant ongoing pain issues, he suspected that even those duties would be difficult on any long-term basis. The respondent's evidence, which the primary judge accepted, as to the likely availability of employment for the appellant, was premised upon his having less severe disabilities than as assessed by Dr Walker. Even then, neither the respondent nor the primary judge identified with any particularity the kind of job that the plaintiff would be able to carry out, and his prospects of obtaining employment for such a job, at a place within a reasonable distance of where he lived.
As to the appellant's second ground, Macfarlan JA observes that the primary judge was at pains to avoid double counting against the appellant and stated that his problems with alcohol and their interaction with criminal behaviour were matters relevant to vicissitudes rather than future earning capacity. However, Macfarlan JA considers that the primary judge's approach involved an element of double counting because her adoption of the appellant's pre-accident earnings of $1,000 rather than $1,200 (per week) on the basis that on average he worked less than 12 months per year took into account his alcohol addiction and its resultant criminality. I agree.
At trial the appellant submitted that the component of his damages for past economic loss should be assessed as $1,250 x 238 weeks and the component of his damages for future economic loss should be assessed as $1,200 x 783 less 15 per cent. The appellant submitted that his pre-accident net weekly earnings averaged $1,261. This was based upon payslips recording "salary" paid to him for work done between 22 February 2011 and 28 June 2011, and 19 October 2011 to 23 November 2011. For the weeks the appellant worked his earnings did average $1,261. But over the 39 weeks between 22 February and 23 November, he worked only 21 weeks. His average net weekly earnings over the full nine-month period between 22 February and 23 November 2011 was about $680 per week. It appears from the appellant's tax returns for the financial years 30 June 2008 to 30 June 2010, that his average after tax employment income per week in those years was between $655 and $844.
In his written submissions before the primary judge the respondent cited the observations of Basten JA in Vosebe Pty Ltd v Bakavgas; Vosebe Pty Ltd v Vapore [2009] NSWCA 117 at [139] that the best evidence of a plaintiff's earning capacity prior to the accident is usually the actual earnings of the plaintiff in the year or years immediately preceding the injury. Nonetheless, the respondent submitted that the appellant's criminal activities, which were inextricably linked to his alcohol use, and the nature of his employment, meant that there were lengthy periods of unemployment between jobs. The respondent submitted that it was reasonable to find that the appellant was likely to work for approximately nine months of each year with periods of receipt of unemployment benefits for three months each year, and that a figure of $920 net per week should be adopted as the appropriate measure of his pre-accident earning capacity.
The primary judge accepted these submissions and adopted the figure of $920 net per week in assessing damages for past loss of earnings.
The appellant's case was that his being a heavy drinker did not affect his earning capacity. But the primary judge did not accept that. Her Honour adopted the respondent's submission that, in substance, having regard to the appellant's alcohol use, criminal activities, depressive illness, and the nature of his employment, it was reasonable to find that the appellant was likely to work for approximately nine months of each year, and that "consequently a figure of $920 net per week should be adopted as the appropriate measure of his pre-accident earning capacity". This approach of reducing the baseline earning capacity expressed as a net weekly wage by 25 per cent to reflect the three months the appellant was unlikely to work owing to uncertainties of employment and the effects of his abuse of alcohol, is equivalent to discounting the appellant's earning capacity by 25 per cent for vicissitudes. It implies an earning capacity not affected by vicissitudes of $1,227 net per week.
To justify a discount of 35 per cent for vicissitudes in the calculation of future economic loss as a result of the impairment of the appellant's earning capacity, it was incumbent on the primary judge, as Macfarlan JA says, to identify why there would have been an increase in the appellant's offending or the sequelae of excessive consumption of alcohol.
The respondent at trial proposed that in a calculation of damages for impairment of future earning incapacity the baseline earning capacity should be allowed at $1,000 net per week (the appellant proposed $1,200 net per week). The primary judge adopted the figure of $1,000 net per week which she said was based upon the appellant's actual earning capacity. The primary judge said that the appellant's lengthy history of alcohol abuse had begun to impact upon his earning capacity prior to the accident and would have increasingly curtailed his capacity for employment as he grew older, but she had only taken that factor into account in relation to the percentage of vicissitudes. However, that does not explain the adoption of the figure of $1,000 net per week as a statement of the plaintiff's actual earning capacity when in the calculation of damages for past economic loss, the primary judge implicitly adopted a higher figure, but discounted it for the periods in which the plaintiff was out of work owing, it was said, to his alcohol abuse and issues related to it. The figure of $1,000 net per week already contains an implicit discount for vicissitudes of 18.5 per cent (assuming earning capacity of $1,227 net per week). In my view, the primary judge's decision to increase the percentage for vicissitudes to 35 per cent from the implicit figure for vicissitudes of 25 per cent adopted in the calculation of damages for past economic loss could only be justified on the basis that the appellant's difficulties with alcohol abuse would worsen. Even then, to apply that finding to discount the stated earning capacity of $1,000 net per week by 35 per cent for vicissitudes does involve a double counting to the extent the $1,000 figure has already been reduced to take account of the same matters.
There would be justification for increasing the standard discount of 15 per cent for vicissitudes if the baseline figure of $1,000 for net weekly earnings is too generous, or if it is likely that had the accident not happened, the appellant's problems with alcohol abuse and its sequelae would have worsened, or both. The respondent did not submit the former. The primary judge found it was likely that the appellant's alcohol abuse would have increasingly curtailed his capacity for employment as he grew older, as well as exposing him to risks. Her Honour rejected the appellant's evidence that he did not drink in the same pattern as he had before he went to jail in 2010.
Accordingly, I agree with Macfarlan JA that a higher discount than the standard 15 per cent discount for vicissitudes is warranted. The appropriate figure is a matter of impression. I do not disagree with his Honour's figure of 25 per cent.
I agree with Macfarlan JA's reasons and conclusions for including a component in the award of damages for the value of commercially provided attendant care services. In this respect it should be noted that it was common ground that s 141B(3) and (4) of the Motor Accidents Compensation Act 1999 (NSW) did not apply to limit the award of compensation for commercial care and assistance. No argument was raised as to the operation of s 141B(1)(b).

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Judgment (21 paragraphs)

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