Sutherland Shire Council v Major

Court of Appeal (NSW)|2015-07-16|Before: McColl JA, Emmett JA, Sackville JA, Coll JA

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

McCOLL JA: I agree with Emmett JA's reasons, save in respect to future economic loss. In that respect I agree with Sackville AJA.
EMMETT JA: This appeal concerns the assessment of damages for personal injury suffered by the respondent, Mr Bradley Major, when, on 18 January 2012, a railing on which he was sitting gave way, causing him to land heavily on his buttocks and then roll down an embankment. The appellant, Sutherland Shire Council (the Council), had the care and control of the railing.
Mr Major sued the Council in the District Court, claiming that the Council had breached its duty of care to him by negligently not maintaining the railing. The Council ultimately conceded liability and a judge of the District Court (the primary judge) assessed damages in the sum of $278,392. Verdict and judgment was entered for Mr Major against the Council in that sum on 15 July 2014, for reasons given on 9 July 2014.

Background Facts

Mr Major's evidence was that while sitting on the timber railing, the railing came out from under him, causing him to land on the bottom railing and to roll down a hill a distance of some five to ten metres. He noticed a lot of pain in his lower back, backside and left leg. He climbed back up the hill and went inside where he lay on the floor, which gave him minimal relief. There was evidence of significant bruising to his buttocks. Mr Major said in his evidence in chief that, on the day following his accident, he thought he worked a part day.
At the time of his injury, Mr Major was 39 years old. He obtained his plumbing licence at the end of 1994 or 1995. He commenced his own plumbing business in 1997. He described the business as being mainly real estate maintenance and strata work, doing blocked drains around the eastern suburbs. In addition to unblocking drains, Mr Major also replaces hot water heaters, tap washers and burst pipes and cleans gutters. In that work, he uses drills, grinders, a high-pressure water jet, an electric eel, a jack-hammer, a camera and a locator. The heaviest pieces of equipment would be the electric eel of about 30 kg and the jack-hammer of about 20-25 kg. He also dealt with water heaters of up to 250 litres which weigh approximately 50 kg on a trolley, which would have to be taken down steps if there was no elevator. Only about 10 per cent of the buildings in which Mr Major worked have elevators so that it is necessary sometimes for him to carry his equipment up a lot of steps.
Some ten years before the accident, Mr Major had an apprentice, but for the past eight years he had done everything on his own. Prior to the accident, he worked from 7 am to 3 pm on Mondays to Fridays and sometimes on Saturdays.
Mr Major's favourite sport was offshore fishing, which he used to engage in at least once per week; he also participated in competitions. Mr Major also used to "really enjoy" surfing on a short board. He also enjoyed skiing. It is necessary to consider the heads of damage against that background.
Mr Major claimed that his injuries interfered with his capacity to conduct his business as a plumber and interfered significantly with his enjoyment of life. The primary judge accepted Mr Major's evidence as both credible and reliable and considered him to be a witness who did not attempt to exaggerate his evidence. His Honour observed that counsel for the Council made it clear that he did not challenge Mr Major's evidence, on the basis of either credibility or reliability.

Non-Economic Loss

Under s 16 of the Civil Liability Act 2002 (NSW) (the Liability Act), no damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15 per cent of a most extreme case. The maximum amount of damages that may be awarded for non-economic loss in a most extreme case is $350,000. If the severity of the non-economic loss is equal to or greater than 15 per cent of a most extreme case, the damages for non-economic loss are to be determined in accordance with the table set out in s 16(3).
Section 17A of the Liability Act provides that, in determining damages for non-economic loss, a court may refer to earlier decisions of that or other courts for the purpose of establishing the appropriate award. For that purpose, the parties or their legal advisors may bring the court's attention to awards of damages for non-economic loss in those earlier decisions.
Under s 3, non-economic loss means any one or more of the following:

pain and suffering;
loss of amenities of life;
loss of expectation of life;
disfigurement.

The evidence before the primary judge included a written report on behalf of Mr Major by Dr Peter Conrad, an orthopaedic surgeon, and a written report on behalf of the Council by Dr Anthony Smith, who is also an orthopaedic surgeon. Neither doctor was cross-examined.
Dr Conrad recorded the following history: As the accident occurred late at night he went home and the next morning he saw his General Practitioner, Dr Nelson. X-rays were taken and he was treated with tablets, rest and physiotherapy. He was not referred to any Specialist Doctors for treatment and Dr Nelson continued to be his treating General Practitioner. At the time of the accident he was a [sic] self-employed as a sole trader plumber and he worked fulltime. Following the accident he was totally off work for two days. He said that following the accident he had to reduce his working hours due to his back pain. He says that he would estimate that his work hours were reduced by approximately 25%. He says that he had to be more selective and often have to put off heavier work due to his ongoing back pain. He says that he is now trying to do fullon work, but from time-to-time he has to take time off from work due to his ongoing back pain. He used to be very keen on surfing and is substantially handicapped in doing that. He says that he lives with his fiancé[e] in a house and his fiancé[e] has to do most of the housework, cooking and cleaning. […] He continues to have ongoing back pain, which radiates into his left buttock and left upper thigh. This is all worse when he is standing, walking, lifting or bending. In particular, he finds it difficult digging, going up and down ladders, working at heights or in restricted areas. He cannot lift anything heavy. He has not seen Dr Nelson for a while, but he continues to take painkilling medication and continues to see his physiotherapist.
Dr Conrad said that he would need to see an MRI scan of the lumbar spine to rule out any serious discal injury. He said that Mr Major was well-motivated and continued working as a self-employed plumber, but that he would be limited in doing heavy lifting and going up and down ladders and working at heights or in restricted places, such as under houses. Dr Conrad said that Mr Major's lifting limits should be about 5 kg in weight and that he should avoid repetitive lifting or bending. That should all, he said, be part of a "structured rehabilitation program". Dr Conrad said that Mr Major's prognosis "is guarded".
Dr Smith's clinical examination demonstrated, in his opinion, that Mr Major was in no distress. He said that Mr Major complained of a collection of symptoms which would suggest that they were emanating from lumbar degenerative disease. Dr Smith said that Mr Major almost certainly would have lumbar degenerative disease. He continued as follows: The accident described could have aggravated lumbar degenerative disease. It is conceivable that he has not had a problem with lumbar degenerative disease in the past and it is conceivable that once the degenerative process of the lumbar spine is rendered symptomatic, it will render it symptomatic from time to time with a variety of different activities on his part. There will be no symptoms present now that are as a result of the 18 January 2012 [accident]. I would have thought he would have had no symptoms from that one or two months down the track from that date. He is complaining of ongoing episodic aggravation to the lumbar degenerative process. […] The prognosis is for him to have back pain with or without leg symptoms from time to time with a variety of different activities on his part consequent to the arthritic process present in the low back consequent to the arthritic process almost certainly present in the low back [sic], which he will aggravate whether he works or whether he does not. […] He is fit to continue work as a self-employed plumber.
The primary judge found that Mr Major wakes from sleep with pain and discomfort and regularly takes medication. His Honour accepted Mr Major's evidence that his back is always "mildly sore". He rated his back as 2 to 3 on a scale of 10 for good days and 6 to 8 on a bad day.
The primary judge said that Mr Major did not like taking medication and described himself as feeling "like a cripple". In fact, the relevant exchange in Mr Major's examination in chief was as follows: Q. How do you feel having to take medication now? A. Oh, I feel like a bit of a cripple, I suppose. Thus, Mr Major's answer was not concerned with his physical incapacity, but a complaint about having to take medication regularly. When asked how regularly he takes analgesics, he said that he took Panadol "a couple of times a week" and that he took Voltaren "twice a week". On good days, Mr Major has no need for medication but he takes painkillers and has physiotherapy when the injury flares up.
The primary judge found that the pain experienced by Mr Major in his back meant that he has reduced his offshore fishing activities "significantly" since the wave motion against the boat aggravates the pain in his back. He now goes out only about once every three months, rather than once per week. His Honour found that Mr Major "really misses fishing".
The primary judge found that Mr Major's injuries have not stopped him from surfing, but it has affected how he surfs. He now surfs almost invariably on a longer Malibu board, rather than on a short board. That is not his preference and it affects his enjoyment of the sport.
Mr Major undergoes physiotherapy with the object of reducing his symptoms to a "manageable level". His Honour considered that the restrictions placed by Dr Conrad on the kind of work that Mr Major can do and the weights that he can lift demonstrated the effect on Mr Major's enjoyment of life and supported his account of the pain that he suffers.
The primary judge recorded that Mr Major was asked why he had not skied since 2012 after the accident. Mr Major did not suggest that it was because of pain, but because he simply had not got around to it. However, Mr Major had given evidence that in May 2012 (four months after his accident), he went skiing in Thredbo for a couple of days.
In light of those findings, the primary judge concluded that the severity of Mr Major's non-economic loss was 30 per cent of a most extreme case. His Honour gave no reasoning for that conclusion other than to say that, in another case decided by his Honour on 2 June 2014, [1] his Honour had regarded 30 per cent of a most extreme case as the appropriate figure, notwithstanding that the interference with the plaintiff's lifestyle in that other case "was perhaps marginally greater". However, his Honour said, the plaintiff in the other case was older than Mr Major and the interference with Mr Major's enjoyment of his life and the pain and suffering that he will experience will be for a longer period.

Future Physiotherapy Expenses

Mr Major also claimed $30 per week for physiotherapy expenses. It was common ground that the cost of a physiotherapy session was $75. The Council contended that one session per month would be adequate. The primary judge had regard to a report from Mr Major's physiotherapist, Mr Matthew Forrest, that he was treating Mr Major every four to six weeks for one to three sessions. His Honour therefore calculated the cost on the basis of two sessions every five weeks or one session every two and a half weeks, and concluded that a figure of $30 per week was a reasonable estimate.

Past and Future Economic Loss

The primary judge appears to have found that, on the basis of Mr Major's 2012 tax return, prior to the accident he was earning around $120 per day. His Honour found that over the two and a half years since the accident, Mr Major may have lost 30 working days. In addition, his Honour said that he needed to take into account Mr Major's evidence that there were missed opportunities when he could not do a particular job, such as might involve manoeuvring a particularly heavy hot water system. Mr Major said that he may have to give such work away, or in a different situation, pay a labourer to dig a trench where it was not a simple or easy trench for him to dig. While there was no figure in Mr Major's financial documents corresponding to payments that he may have made to a labourer in those circumstances, his Honour did not consider that Mr Major was misleading him in saying that he occasionally has to do that. Taking those various matters into account, his Honour concluded that an appropriate figure for past loss in earning capacity would be $4,000.
Mr Major also claimed a figure of $100,000 "in the nature of a buffer" for future loss in earning capacity. The primary judge found that Mr Major was engaged in a physically demanding job and that there were occasions when he simply could not do that job. His Honour found that, on those occasions, Mr Major may engage someone else to undertake a physical task or he may give the job away. He said that, in order to keep going, he needed regular physiotherapy and medication. While Mr Major originally planned that he may retire at 65, he now doubted that he would make it to 65 and may have to retire earlier than that. His Honour took into account that Mr Major's symptoms have persevered for some years and that Dr Conrad regarded his prognosis as "guarded".
The primary judge preferred the report of Dr Conrad over that of Dr Smith. However, his Honour gave no reasons for that preference, other than saying that the restrictions that Dr Conrad would place on Mr Major in his employment were consistent with Mr Major's own evidence. His Honour did not accept Dr Smith's opinion, since Mr Major was symptom-free beforehand and Dr Smith acknowledged that there may have been an aggravation of a back condition. His Honour considered that whether or not Mr Major had a back condition beforehand was a matter of speculation.
The primary judge found that Mr Major's most likely circumstances, but for his injury, [2] would be that he would continue with his successful plumbing business. His Honour found that Mr Major had the capacity to do the physically demanding work for the next 24 years or so, until the age of 65. However, his Honour found, the most likely circumstances have been affected by the accident in the way described above. His Honour found that there was clearly a loss in Mr Major's earning capacity and that it would be indefinite. His Honour accepted Mr Major's reservations about being able to continue to work until 65 and considered that it was possible that he would be forced to retire earlier than he would prefer. Taking all of those matters into account, his Honour regarded the case as an appropriate one for an award of damages for future economic loss, in the form of a buffer, of $100,000.

Future Paid Care

Mr Major also made a claim for paid care services in the future. The primary judge accepted that there was no evidence from Mr Major's wife that she would not in the future be able to perform any of the domestic tasks that Mr Major could not perform. His Honour found that the only domestic activity that Mr Major is engaged in regularly is lawn mowing, which, for him, is manageable notwithstanding his injury. Mr Major and his wife are planning to have children, which, his Honour found, could reduce Mr Major's wife's ability to contribute to domestic chores.
The primary judge considered that an allowance of $10,000 was appropriate because Mr Major may need assistance with lawn mowing in the future and may need to assist domestically with some of the heavier tasks, if he and his wife have children. No other reasoning was provided by his Honour for arriving at that assessment.

The Appeal

The Council's grounds of appeal are as follows: 1. The primary judge erred in failing to give reasons having regard to Mr Major's inconsistent evidence as to his activities and capabilities; 2. The primary judge's assessment of Mr Major's relationship to a most extreme case (in relation to non-economic loss) was manifestly excessive and a wholly erroneous estimate of his damage; 3. The primary judge's assessment of the damages to be awarded for medical treatment in the future was excessive; 4. The primary judge's assessment of the damages to be awarded for economic loss was excessive, was not supported by the evidence and was not supported by adequate reasons; 5. The primary judge's award of damages for paid domestic assistance was excessive, was not supported by the evidence and was in error in that the justification for such an award was not made out.
I shall deal with Ground 1 in the course of dealing with the other appeal grounds. However, three possible inconsistencies in Mr Major's evidence to which the Council draws attention can be considered at the outset.
First, Mr Major said in his evidence in chief that, about two days after his accident, he first saw his general practitioner and was told to take Panadol. He said that he waited two days because he thought "it would go away". He said that he was later sent for an X-ray and a scan.
However, documentary evidence indicated that Mr Major did not in fact consult his general practitioner until nearly two weeks after his accident. The accident occurred on 18 January 2012. The first record of a consultation was with Dr Christopher Allen on 31 January 2012. Dr Allen's consultation notes record that Mr Major was getting left-sided sciatic discomfort, radiating down his leg. The notes record that Mr Major had already been to the physiotherapist three times "with minimal relief". Thus, although Mr Major did not first see his general practitioner until two weeks after the accident, he clearly did not wait that long to see another practitioner, namely a physiotherapist. In any event, when confronted with that inconsistency in cross-examination, Mr Major accepted that the date of Dr Allen's notes was probably correct. The notes said that Mr Major would be sent for X-ray and that if there was no obvious pathology on the X-ray, the next step would be a CT scan of the lumbar spine.
That leads to the second possible evidentiary inconsistency, which relates to the characterisation of Mr Major's condition. The radiologist's report of an X-ray of Mr Major's lumbar spine on 2 February 2012 recorded the following: There is anterior subluxation of L5 on S1. There are defects in the pars interarticularis. There is narrowing of the L5/S1 disc space. The appearances are consistent with spondylolisthesis of L5/S1, Grade 1. The vertebral bodies are otherwise of normal height. There is no evidence of any significant disc legion in the upper and mid lumbar regions.
Mr Major saw Dr Allen again on 16 February 2012. Dr Allen's consultation notes record that Mr Major's back was "a little bit better thanks to the Physio". The notes recorded that Mr Major had re-injured his back slightly, simply by bending forward to pick something up, and that Mr Major was still getting left-sided sciatic pain. The notes recorded that Dr Allen would like a CT scan to assess the degree of damage. The radiologist's report of a CT scan of Mr Major's lumbar spine carried out on 20 February 2012 records the following: At L2/3, L3/4 levels, no significant abnormality is seen. At L4/5 level, there is mild diffuse disc bulge. The spinal canal is normal in calibre. At L5/S1 level, there is no significant disc lesion. The spinal canal is normal in calibre. There is a defect in the pars interarticularis of L5. There is no significant forward slipping of L5 on S1. […] There is no spondylolysis at L5. There is no spondylolisthesis.
The Court was informed by the Council from the Bar table that spondylolysis refers to degenerative damage, whereas spondylolisthesis refers to the slipping of one vertebral body on another. In any event, it is difficult to see where that evidence leads, assuming that Mr Major's other evidence as to the pain he experiences and his trouble conducting his job and other activities is accepted.
The third possible inconsistency relates to the documentary evidence of Dr Conrad: the history taken by him (extracted above at [15]) does not accord with the evidence at the trial. The inconsistency is said to arise in five respects:

Although Dr Conrad recorded that, after the accident, Mr Major went home and the next morning saw his general practitioner Dr Nelson, Mr Major did not in fact see Dr Allen until nearly two weeks after the accident. (Dr Nelson is a doctor at the same practice as Dr Allen.)
Although Dr Conrad recorded that Mr Major was "totally off work for two days", Mr Major remembered having worked a part day on the day immediately following his accident.
Dr Conrad's reference to Mr Major's not being able to carry anything heavy is inconsistent with Mr Major's evidence that, although carrying his equipment caused him pain, he had no choice but to do it because he is self-employed.
Although Dr Conrad reported Mr Major's estimate of the reduction in his work hours as being 25 per cent, Mr Major's evidence before the primary judge was to the effect that he had about one day off from work per month.
Although Dr Conrad reported that Mr Major was "substantially handicapped" in surfing, Mr Major's evidence was simply that although he would prefer to ride a short board, he now has to ride a longer ("Malibu") board in order to put less stress on his back. Mr Major also agreed that he had surfed in Bali in April 2013 and July 2013. To the extent that these inconsistencies should affect the sum of damages awarded to Mr Major, they are addressed further below in relation to the other appeal grounds.

Ground 2: Non-Economic Loss

An appellate court should not interfere in an assessment of damages for personal injury simply because it would have awarded a different figure had it tried the case at first instance. Where an assessment is made by a judge and it has not been shown that the judge acted on any error of principle or misapprehension of the facts, an appellate court will intervene only if it is satisfied that the judge has made a "wholly erroneous estimate" of the damages suffered. [3]
The Council complains that the primary judge erred in thinking that Mr Major had not been skiing since his accident (when in fact he went skiing only four months afterwards [4] ) and failed to take into account that he had been surfing in Bali twice the following year. That, the Council says, demonstrates that the accident had only a marginal impact on Mr Major's enjoyment of his leisure time pursuits.
The Council also points to extended periods during which Mr Major sought no physiotherapy from Mr Forrest, notwithstanding that the primary judge recorded that Mr Major had had physiotherapy treatment "reasonably regularly". There was in fact only a single period of about three months, between February and May 2013, when Mr Major did not receive treatment from Mr Forrest, and during one of those months, Mr Major was in Bali. One other period, between September and November 2013, lasted a little over two months. All other gaps between groups of treatments broadly lasted between four and six weeks.
Finally, the Council contends that the primary judge failed to assess how Mr Major went about his work. It is unclear precisely what aspects of his work (as relevant to an award of non-economic loss) the Council says that the primary judge should have considered.
Mr Major's response is that the Council attaches too much significance to what are said to be inconsistencies between the evidence and the primary judge's findings. For example, the primary judge explicitly noted that Mr Major's lack of skiing (whether or not that was correct as a matter of fact) was not due to pain consequent on his accident. Further, it was not necessary for the primary judge to draw attention to Mr Major's trips to Bali where he surfed, just as it was not necessary for his Honour to recount every piece of evidence. Next, the primary judge's characterisation of Mr Major's physiotherapy treatment as being "reasonably regular" is a fair description of the frequency of the treatment sessions recorded by Mr Forrest. Finally, the fact that the primary judge did not consider how Mr Major went about his work is insignificant, given that his Honour had heard detailed evidence on that topic only two days earlier.
The primary judge had regard to his Honour's own decision in Cockburn v The Trust Company Ltd (No 2) [2014] NSWDC 119 (Cockburn's Case), which concerned a plaintiff's injury to his right arm, as being a comparable case. His Honour had concluded in that case that the severity of the plaintiff's non-economic loss was 30 per cent of a most extreme case. However, in Cockburn's Case, the medical evidence suggested that there was a "poor or guarded prognosis" for the plaintiff's recovery. [5] There was evidence of a "change in personality and in day-to-day activities, both social and personal". The plaintiff could no longer do simple things such as walking the dog because he did not have sufficient strength in his right arm to control the dog. It is implied that the plaintiff was forced to give up his job by reason of his injuries. [6] His Honour assessed the impact on the plaintiff's life in terms of pain and suffering and loss of amenities of life as being "relatively extensive".
The position of Mr Major is, as the Council submits, significantly better than that of the plaintiff in Cockburn's Case. I consider that the primary judge erred in having regard to the assessment made in that case as being comparable to the position of Mr Major. Further, insofar as his Honour placed weight on the opinion of Dr Conrad (who described Mr Major's prognosis as "guarded"), his Honour erred in that Dr Conrad's opinion was clearly based on a misapprehension of the full circumstances of Mr Major's condition. That is especially so in circumstances where his Honour appears to have given Dr Conrad's report particular weight because it "demonstrates an independent opinion about the restrictions which will affect Mr Major's enjoyment of life and clearly points to, or supports, his account of the pain." For those reasons, the basis for this Court to reconsider the assessment of non-economic loss has been made out.
The Council concedes that the severity of Mr Major's non-economic loss is at least 15 per cent of a most extreme case. It suggests an appropriate figure would be 17 per cent. Clearly enough, Mr Major has ongoing consequences from the accident. He has had to have regular physiotherapy treatment and continues to need it in order to deal with pain and other symptoms. Certainly, he had no symptoms before the accident and Dr Smith considers that the symptoms that he now has relate to aggravation of the lumbar degenerative process. In circumstances where neither of the doctors was cross-examined, this Court is in just as good a position as the primary judge to assess the weight that should be given to the medical evidence.
Putting aside the question of economic loss by reason of lost capacity, the evidence suggests that Mr Major has suffered relatively minor loss of amenities of life. There was no suggestion of the loss of expectation of life or disfigurement. He is likely to continue to experience pain and suffering.
While it is not necessary to determine what might be the most extreme case, [7] a most extreme case of the type of injury suffered by Mr Major would clearly involve significantly greater pain and suffering and loss of amenities of life than will be experienced by Mr Major. He is still able to surf, although there is some reduction in his flexibility and there is a restriction in the kind of surf board that he can reasonably use. He still able to fish, although there is not insignificant interference with his freedom. He is still able to ski and it was not suggested that his pain interferes with that activity. He continues to be able to mow the lawn, albeit with some pain. In all of the circumstances, I would not assess the severity of Mr Major's non-economic as being greater than 20 per cent.

Ground 3: Future Physiotherapy Expenses

The evidence demonstrated that Mr Major has undergone physiotherapy treatment on many occasions after his accident. Mr Forrest recorded that he was continuing to treat Mr Major for similar symptoms every four to six weeks. Symptoms can be reduced to a manageable level usually within one to three treatments.
The primary judge estimated that Mr Major may have two sessions every five weeks. On the basis of an agreed figure of $75 per session, his Honour made an estimate of $30 per week. The Council says, considering (inexplicably) only the period from 24 January 2013 to 17 January 2014, that Mr Major had on average only one session with Mr Forrest every three weeks.
The evidence certainly demonstrated that Mr Major generally saw Mr Forrest every four to six weeks, which was consistent with Mr Forrest's recorded dates of treatment. I do not consider that there was any error in the approach adopted by his Honour in reaching an assessment of $28,335 for future physiotherapy treatment.

Ground 4: Past and Future Economic Loss

Mr Major gave the following evidence in examination-in-chief about his capacity after the accident: Q. After the accident, how were you coping with carrying, for example, the electric eel, as far as your back was concerned? A. It is difficult to carry. I'm self-employed. You've got to do what you've got to do so you've just got to cope with it. Q. When you say it is difficult to carry, it's difficult to carry anyway. Is that what you mean? A. Yes. So it does give you pain but, as I said, I'm self-employed. If I don't do it, someone else is going to do it and I will lose the work. Q. What about trench digging work? Do you still have to do that from time to time or do you get a contractor to do that from time to time? A. If I'm going to do a large trench, I'll get someone else to do it. If it's a small, five minute job, I'll do it myself. Q. So you'll contract with some other plumber, will you, or get a labourer or something in? A. Yes. Yes. Q. What about changing a water heater these days, have you attempted to do that since this accident has occurred? A. I'll do small [ones]. I generally don't do the larger ones anymore. […] Q. So that [in the case of a larger water heater] is, Mr Major, one of your jobs going to someone else? A. Yes. Q. Similarly, when you have to contract a labourer to do some trench digging work, that's from your profit? A. That is. […] Q. [Have] the hours of work changed since the accident? A. If I do a short day because my back's sore, I'll have to do a longer day the next day to make up for it. Q. So overall for the week it remains the same? A. It's about the same. If I have to rest my back, then the next day I'll have to do a larger day. Q. Since this accident in January 2012, have you had much time off as a result of your injury? A. I might have an afternoon off or a morning or a day off but not that much. As I said, I'm self-employed. I've still got to do the work so. […] Q. Are you able to say how much time you have … had off as a result of your injuries and pain or recovery or treatment since the accident to date? A. Probably one to two days a month. One day a month. The above evidence suggests that, although the accident has had some impact on Mr Major's working capacity, he has generally been able to maintain similar working hours as before the accident. Further, there is no evidence to suggest that, on an occasion when Mr Major has had to give up certain work, there has not been alternative work available.
Mr Major's profit and loss statements for the years ended 30 June 2012 and 30 June 2013 show the following as to his fees received and profit: 2011 2012 2013 Fees received $121,461 $123,905 $146,662 Profit $ 11,057 $ 30,173 $ 66,356

That information demonstrates that Mr Major's income has actually increased since the accident, although that is not decisive as to whether he has suffered economic loss, since the relevant question is to what extent Mr Major has lost the capacity to earn income in a manner productive of financial loss. [8] However, income earned prior to the accident may provide an evidential basis for assessing Mr Major's earning capacity but for his injury. [9]

The profit and loss statement for the year ended 30 June 2012, which has comparative figures for the year ended 30 June 2011, shows that Mr Major had an expense of $720 in the year ended 30 June 2011 for subcontractors, but had no expense for subcontractors in the year ended 30 June 2012. There was no entry for subcontractors in Mr Major's profit and loss statement for the year ended 30 June 2013. The primary judge acknowledged that Mr Major was unable to explain why there was no expense for subcontractors in those years, but concluded that Mr Major was not misleading the Court when he said that he occasionally had to engage a subcontractor. His Honour considered that $4,000 was an appropriate figure for past loss in earning capacity in those circumstances.
Although the notice of appeal speaks generally in terms of "economic loss", and although the Council's written submissions contend that there should have been no award for past economic loss, the oral submissions of counsel for the Council appeared to be directed only to the primary judge's award of damages for future economic loss. Further, no dispute arose when counsel for Mr Major asserted that there was no challenge to the award for past economic loss. In any event, the primary judge's award of $4,000 was consistent with Mr Major's evidence that he lost, on average, one day of work per month.
As for damages for future economic loss, it is appropriate to award such damages by way of a buffer when the impact of the injury on the economic benefit from exercising earning capacity after the injury is difficult to determine. The Court must undertake a comparison between the economic benefits that the plaintiff derived from exercising earning capacity before the injury and the economic benefit derived from exercising earning capacity after the injury. A buffer or cushion award is usually reserved for the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the relevant injury, at some distant time in the future. The want of precise evidence does not necessarily result in non-recovery of damages. [10]
Clearly enough, Mr Major will suffer some restriction in his capacity to carry on his trade as a plumber. There will be work that he may not be able to do. The evidence indicates that, up to the date of the trial, he had suffered relatively insignificant economic loss. He suggests that, while he had hoped to work to 65, he may not be able to work to that age. That, however, is mere speculation. There was no medical evidence to suggest that he would not be fully employed into the future, even though there would be work that he would be unable to do. On the other hand, the economic circumstances may be such that, as a plumber, Mr Major may wish to do all of the work that he would otherwise be qualified to perform. There is, therefore, a prospect that, in the future, he may not be able to earn as much as he would otherwise have been able to earn, but for his injury. I consider, therefore, that this is an appropriate case where a buffer should be allowed against that possibility.
The Council submits that the award for past economic loss should be used to check the reasonableness of any buffer awarded for future economic loss, [11] which would yield, given 24 more years of employment before retirement age, a buffer of $40,000 before allowance is made for taxation and vicissitudes. The Council also complains about the primary judge's reliance on Dr Conrad's prescription for the avoidance of heavy lifting, in circumstances where the history taken by Dr Conrad was inconsistent with the evidence that Mr Major gave before the primary judge.
Mr Major emphasises that the evidence supported a finding that his economic capacity would be adversely affected in the future. He says that Dr Conrad's observation that Mr Major would be limited in doing heavy lifting and his imposition of a lifting limit cannot be impugned simply because of what are, in truth, minor inconsistencies between the history recounted to him and the evidence before the primary judge. Further, the primary judge accepted that the suggestion that Mr Major may not continue working to age 65 was "a layman's view". Ultimately, the awarding of a buffer is a necessarily impressionistic exercise.
On the basis of the evidence summarised above, although Mr Major has clearly suffered some restrictions in his working ability, I consider that the buffer of $100,000 was a wholly erroneous estimate of the extent to which Mr Major's capacity to earn income in a manner productive of financial loss has been affected. The Council concedes that a buffer of $30,000 may be appropriate. I consider that that is a fair figure to allow against the possibility that Mr Major's future earning capacity has been reduced as a result of his injury.

Ground 5: Future Paid Care

After the accident, Mr Major and his wife moved to a 3-bedroom house. Before the accident, he would mow the lawn, take the rubbish out and occasionally clean the bathrooms. His wife did, and does, most of the inside chores. Since the accident, while he does not clean the bathrooms anymore, he still mows the lawn, which takes 20 minutes to half an hour. Mr Major said that mowing only makes a slight difference to his back pain. The primary judge accepted that there was no evidence from Mr Major's wife that she would not in the future be able to perform any of the domestic tasks that Mr Major could not perform, but noted that, since he and his wife were planning to have children, his wife's ability to contribute to the domestic chores inside the house may become reduced. Although the primary judge did not refer to it, Dr Conrad expressed the opinion in his report of 17 June 2013 that "[s]hould [Mr Major's] fiancé[e] not be able to help with the heavier part of the housework, cooking and cleaning, he might need some six hours per week of Home Care assistance".
The primary judge concluded that an award of $10,000 was appropriate because Mr Major "may" need assistance with lawn mowing in the future and "may" need to assist domestically with some of the heavier tasks, particularly if he and his wife have children. However, his Honour made no real assessment of the need for, or reasonableness of, future paid care. Importantly, it is not appropriate for a court to "simply pluck a figure out of the air because there was a remote, though not entirely fanciful, chance of the need for commercial domestic assistance in the future". [12]
However, more significantly, the primary judge did not base his award on any evidence that there was a likelihood that Mr Major and his wife would engage commercial domestic assistance in the future. A relevant factor to consider before making such an award is the ability and willingness of family members to provide assistance. [13] The primary judge explicitly acknowledged that there was no evidence from Mr Major's wife about her likely ability to perform the domestic tasks in the future, and there was no consideration of the capacity of any other family member to assist in such tasks.
I consider that the primary judge erred in making any award for future paid care, in the absence of evidence supporting such a finding.

Conclusion

The primary judge erred in three respects in the assessment of damages, namely, non-economic loss, future economic loss and future paid care. Accordingly, the appeal should be allowed. The verdict and judgment of the District Court should be set aside. In lieu of that verdict and judgment, there should be verdict and judgment in the sum of $91,419 calculated as follows:

Non-economic loss - $20,027 [14]
Past out-of-pocket expenses - $4,337
Future out-of-pocket expenses for medication - $4,720
Future out-of-pocket expenses for physiotherapy - $28,335
Past economic loss - $4,000
Future economic loss - $30,000
Future paid care services - nil.

The order for costs made by the District Court should stand. As the Council has been substantially successful, Mr Major should pay 75 per cent of the Council's costs of the appeal. If otherwise entitled, Mr Major should have a certificate under the Suitors' Fund Act 1951 (NSW).
SACKVILLE AJA: I have had the advantage of reading the judgment of Emmett JA. I agree with his Honour except in relation to damages for future economic loss.
There are difficulties in assessing Mr Major's claim for future economic loss. One difficulty is that the primary Judge relied on Dr Conrad's report when, as Emmett JA points out, Dr Conrad proceeded on misapprehensions as to Mr Major's ability to perform heavy lifting and as to the amount of time he was forced to take off from work. [15] Another difficulty is that Mr Major's evidence shows that both the gross revenue and the profits from his plumbing business increased in the years following his accident. The primary Judge appears to have overstated the impact of the accident on Mr Major's ability, at the date of the trial, to maintain his working schedule. This may have affected his Honour's assessment of the appropriate "buffer" to cover Mr Major's future economic loss.
It is, however, clear that, as Emmett JA records, Mr Major, who is now aged about 42, has ongoing consequences from the accident. He experiences pain from the back condition attributable (on findings not challenged) to the accident. Mr Major's evidence, accepted by the primary Judge, was that he experienced difficulty in carrying heavy items of equipment in the course of his work as a self-employed plumber. While the amount of time he had to take off from work was very limited at the date of the trial, he was taking medication each week for the pain and was receiving regular treatment from a physiotherapist. Mr Major said (and the primary Judge apparently accepted) that he planned before the accident to retire from his work as a plumber at the age of 65, but that his injuries had probably cut down the length of time he could expect to remain in the trade.
In approaching the assessment of Mr Major's future economic loss, it is necessary to bear in mind that the absence of any loss of earning capacity prior to the trial (or only a very minor loss) does not necessarily provide a reliable guide to the course of future events. [16] Thus a plaintiff who has suffered no past loss of earning capacity may nonetheless be able to demonstrate that he or she will suffer a loss of earning capacity in the future because of injuries sustained in an accident for which the defendant is liable. It is also necessary to remember that the compensable loss is not a loss of income, but the loss of capacity to earn income in a manner productive of financial loss. [17] In a case such as the present, an assessment of the loss of earning capacity involves an evaluation of the probabilities and possibilities that hypothetical events will occur. [18] This is necessarily an inexact process.
Section 13 of the Civil Liability Act 2002 (NSW) provides as follows: "13 Future economic loss-claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted." In a case where it is difficult to determine damages for future economic loss because of uncertainty as to the future impact of the injuries on the plaintiff's future earning capacity, it may be appropriate [19] to award damages by way of a buffer.
I accept that the primary Judge's award of $100,000 as a buffer was affected by his Honour's error in apparently overlooking that Dr Conrad was basing his opinion on inaccurate assumptions. It is necessary therefore to reassess the damages that should be awarded for future economic loss.
In my opinion, the evidence supports a finding that it is probable, although far from certain, that Mr Major's earning capacity will diminish to some extent by reason of his injuries, as he approaches his preferred retirement age of 65. It is not likely that he will be forced suddenly to cease work altogether (although this may happen). It is more likely that his earing capacity will diminish gradually over time. Whether he will be forced to retire earlier than 65 because of his injuries is uncertain, but there is a real chance that he will have to retire earlier, perhaps some years earlier, than he planned before the accident.
If Mr Major sustained no loss of earning capacity until he reached the age of 60, but was then forced to retire from his occupation by reason of his injuries, his damages would be in the order of $104,000. I point this out not because it is the most likely outcome, but in order to provide a starting point for the necessarily broad brush assessment of damages that the circumstances require.
In my view, having regard to the probabilities and possibilities, the buffer of $100,000 awarded by the primary Judge is too high. But I think a buffer of $30,000 takes insufficient account of the probability that Mr Major will suffer a significant loss of earning capacity prior to reaching 65. The assessment should also have regard to the risk that Mr Major's loss of earning capacity will materialise well before he reaches 65 and substantially interfere with his capacity to earn income over a lengthy period. Doing the best I can on the evidence, I would assess Mr Major's damages for future economic loss at $75,000.
I agree with the orders proposed by Emmett JA except that I would substitute a verdict and judgment for the respondent in the sum of $136,419.

Endnotes

Cockburn v The Trust Company Ltd (No 2) [2014] NSWDC 119.
Liability Act, s 13(1).
Precision Plastics Pty Ltd v Demir [1975] HCA 27; 132 CLR 362 at 369; Khan v Polyzois [2006] NSWCA 59 at [24].
See above at [23].
[2014] NSWDC 119 at [33].
[2014] NSWDC 119 at [39].
C.f. Liability Act, s 16(1); see also Dell v Dalton (1991) 23 NSWLR 528 at 533.
See State of NSW v Moss [2000] NSWCA 133; 54 NSWLR 536 at [71].
See Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 83 NSWLR 302 at [24]; NSW v Moss at [71].
Allianz Australia v Kerr at [6]-[7].
Citing Jackson v Mazzafero [2012] NSWCA 170 at [46].
Allard v Jones Lang LaSalle (Vic) Pty Ltd [2014] NSWCA 325 at [71].
See Miller v Galderisi [2009] NSWCA 353 at [21].
20% = 3.5% of the maximum figure (Liability Act, s 16(3)); maximum figure is $572,200 (Civil Liability (Non-economic Loss) Order 2010, s 3 - 1 October 2014ff.)
See at [39], [46] above.
Husher v Husher [1999] HCA 47; 197 CLR 138 at [8] (Gleeson CJ, Gummow, Kirby and Hayne JJ).
State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536 at [71] (Heydon JA).
Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 at 643 (Deane, Gaudron and McHugh JJ).
Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 at [84]. 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: 20 August 2015

Suitors' Fund Act 1951(NSW)

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