Taylor v Walker

Court of Appeal (NSW)|2016-04-01|Before: Ward JA, Payne JA, Harrison J

[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.] HEADNOTE [This Headnote is not to be read as part of the judgment] This judgment relates to an appeal from a decision of a judge in the District Court awarding judgment in favour of the respondent, Mr Walker, in respect of his claim for damages following a motor vehicle accident in which he was seriously injured. The two appellants were the owner and driver of a vehicle which reversed out of a driveway and collided with Mr Walker's motorcycle. Mr Walker sued the appellants in negligence. During the hearing in the District Court, the appellants admitted breach of duty of care but alleged contributory negligence on Mr Walker's part. The primary judge declined to find contributory negligence and awarded judgment in favour of Mr Walker which, together with interest and an agreed increase in the claimed past out-of-pocket expenses, was entered in the sum of $3,014,526.40. The appellants were ordered to pay Mr Walker's costs as agreed or assessed. The appellants challenged the primary judge's award of damages under two heads of damage: future treatment expenses and past and future domestic assistance. Mr Walker in turn filed a notice of contention seeking to affirm her Honour's decision on the basis of evidence on which her Honour did not expressly rely. Held by Ward JA (Payne JA and Harrison J agreeing at [60] and [61], respectively), dismissing the appeal with costs: (1) (at [21]; [28]) that the award of a global sum of $250,000 for future treatment expenses was not excessive or against the weight of the evidence. The award of a global sum, which included a buffer for expenses over and above the cost of inevitable surgeries and medication, was a course open to her Honour given that certain items were able, on the evidence, to be costed but others were not. (2) (at [38]-[39]; [57]) that there was no error in her Honour's factual findings with respect to, or the amount ultimately awarded for, past and future domestic assistance. It was open to her Honour to assess the opinions of the medical practitioners in light of the other evidence as to Mr Walker's need for assistance, including that of Mr Walker's daughter, with whom he resided at the time of the hearing, and on that basis to make the conclusions that her Honour did as to the level of assistance Mr Walker required and is likely in the future to require.

Judgment

WARD JA: The respondent, Mr Walker, suffered very severe injuries on 18 September 2004 when riding his motorcycle at night along the Bells Line of Road near Bilpin. The appellants were the owner and driver, respectively, of a motor vehicle which reversed out of a driveway adjacent to the Bells Line of Road, crossed over to Mr Walker's side of the road and collided with Mr Walker's motorcycle. Mr Walker moved to his left but was unable to avoid the collision.
Mr Walker sued the appellants in the District Court for damages sustained as a result of their negligence. They ultimately admitted breach of a duty of care owed by them but alleged contributory negligence on Mr Walker's part.
The primary judge found that Mr Walker was not guilty of contributory negligence and awarded judgment in his favour in the sum of $2,873,848. Together with interest and an agreed increase in the claimed past out-of-pocket expenses, judgment was entered on 19 February 2015 in the sum of $3,014,526.40. The appellants were ordered to pay Mr Walker's costs as agreed or assessed. An advance on judgment in the sum of $2m was paid to Mr Walker with the balance of the judgment moneys being the subject of a stay.
The appellants appeal from that part of the primary judge's decision in relation to the award of damages for future treatment expenses (in the sum of $250,000) and for past and future domestic assistance (awarded in the sums of $49,140 and $454,731, respectively).
Mr Walker filed a notice of contention in Court on the hearing of this appeal seeking to affirm the primary judge's decision on the basis of evidence that was before the primary judge but not expressly relied on by her Honour.

Background

It is not necessary to say anything further as to the circumstances of the accident. As noted above, liability was admitted by the appellants at the hearing in the District Court.
Mr Walker suffered multiple fractures and was hospitalised for a prolonged period of time at Westmead, Liverpool and Mt Wilga Private Rehabilitation hospitals successively. He underwent a number of further operations, including a right total knee replacement in November 2011 as a result of which he suffered serious complications, developing an extensive and severe infection in the right leg which compromised his renal function and required a lengthy period on antibiotics and further surgery. The balance of Mr Walker's life expectancy at the time of the hearing was agreed to be 33 years. It was accepted that he will inevitably have to undergo a number of further operations in the course of his life. He has undergone total bilateral knee replacements which have an agreed lifespan of 12 years and he will require right ankle surgery, and possibly a right ankle replacement. He has significant ongoing leg length discrepancy and has post traumatic arthritis. There will be further deterioration of his symptoms as he ages. He was at one stage diagnosed as suffering from depression. He has an ongoing need for physiotherapy and for both general medical and orthopaedic treatment.
The above should not be taken as an exhaustive (or medically precise) description of the disabilities Mr Walker has suffered, and continues to suffer, as a result of the accident. One indication of the extent of his injuries is that his medical expenses over a ten-year period to the time of the District Court hearing had exceeded $500,000.
At the time of the District Court hearing, Mr Walker was living with one of his daughters (Ms Charlene Walker), her partner and their young son, in a three bedroom suburban home. He moved into their home in mid-2012. The case appears to have proceeded on the basis that Mr Walker was likely to remain living with his daughter and her family for about three years but would then move to other accommodation. No claim was made for residential or hostel care. Finally, I note that it was common ground that Mr Walker is, and will remain, unfit to return to work in his pre-accident employment as a fitter and turner.

Appeal

As noted above, the appeal is confined in essence to two heads of damage: future treatment expenses and (past and future) domestic assistance. I will consider each of those in turn.

Future treatment expenses

Her Honour recorded, and it does not appear to be disputed by Counsel now appearing for the respective parties, that she had not been provided with any real assistance as to how Mr Walker's claim for future out-of-pocket expenses had been calculated. The sum of $300,000 had been sought, on the basis that Mr Walker would need ongoing surgery to his legs and that there remained a high possibility of complications from such surgery.
Her Honour noted that, after a short adjournment during the hearing, the parties had agreed certain matters. Those included: the cost of continuing medication (at $50 a week - $43,000 for the rest of Mr Walker's life expectancy); the cost of a knee replacement ($33,000); the cost of an ankle fusion ($10,000); the life span of a knee prosthesis (12 years); and the daily cost of hospitalisation (relevant if there were complications from the anticipated surgery) ($740 per day). However, her Honour also observed that none of those figures was presented as a final calculation.
Her Honour allowed the sum of $250,000 under this head of damage. She did so having concluded that the two most significant items for calculation were the knee replacements and cost of medication, which she costed at $116,000. It is clear from her Honour's reasons that included in the sum so awarded was an allowance for those matters that her Honour had not separately costed but to which she had referred ("the various matters set out above"). In other words, her Honour was including a buffer to encompass a range of expenses over and above the cost of the inevitable knee replacements and the cost of medication.
Some of the matters to which her Honour had referred under this head of damage had been the subject of evidence but had not been mentioned in addresses by Counsel, those being the recommendations by one or more of the respective experts or medical consultants that: Mr Walker attend a treating psychiatrist every two to three weeks over a period of nine months to two years; provision be made for monthly physiotherapy treatments and/or intermittent reviews by a physiotherapist; there be an annual review by an occupational therapist; and provision made for the acquisition certain non-slip products. (Her Honour included in this list, but expressly declined to make any allowance for, the cost of attendance at a club or gym to maintain his cardiovascular fitness.)
Other matters to which her Honour had referred included an allowance for the cost of the ankle ($10,000), which her Honour recognised must be discounted because there was no suggestion that it was likely to take place in the immediate future; the cost of replacement from time to time of Mr Walker's built up boot and knee brace (and for a possible scar revision); allowance for some form of motorised transport (and its maintenance/replacement) once Mr Walker reached the age of 70; and an allowance for Mr Walker to continue to see his general practitioner every month and his treating orthopaedic surgeon annually.

Challenge to the award of $250,000 for this head of damage - grounds 1 - 4 of the notice of appeal; ground 1 of the notice of contention

The appellants argue that an amount exceeding $190,000 for future medical treatment expenses (being the amount calculated at [38] of their written submissions plus an additional allowance, put in oral submissions, of around $25,000 for GP/orthopaedic consultations) cannot be justified. They raise the following grounds of appeal: 1. Having been provided with the basis for various calculations in relation to future treatment expenses her Honour erred in allowing a global sum of $250,000 for future treatment expenses. 2. The amount of $250,000 awarded by her Honour for future treatment expenses was excessive and against the weight of the evidence. 3. Her Honour erred in not finding that a proper award for future treatment expenses was no more than $165,000. (In oral submissions this figure was put at the higher amount of $190,000 to take into account the fact that her Honour was prepared to allow for GP/treating orthopaedic consultations.) 4. Her Honour failed to give adequate reasons for awarding a global sum of $250,000 for future treatment expenses.
Mr Walker maintains that her Honour did not err in the making of this award of damages but, in the event that appellable error were to be identified in this regard, he relies on evidence not expressly relied upon by her Honour and identified in ground 1 of his notice of contention as providing support for the award that her Honour made in respect of this head of damage.
The grounds on which the award of future out-of-pocket expenses is sought to be affirmed, as set out in the notice of contention, are as follows: 1. The trial judge was entitled to find the future out of pocket expenses were capable of being could be [sic] assessed as a buffer of $250,000 on the basis of the following further evidence that was not addressed in her reasons: (a) That the Respondent was not capable of driving, was incapable of using public transport and was reliant on taxies [sic] or family members to drive him. (b) That the Respondent continued with physiotherapy three times a week and suffered deterioration of symptoms when treatment was suspended. (c) That the Respondent continued with weekly hydrotherapy. (d) The Respondent would require further equipment and housing modifications. (e) The Respondent would require personal attendant care assistance if bathing in a bath. (f) The Respondent would require car washing every four to six weeks. (g) The Respondent had suffered and was at risk of falls, and further injury. (h) Dr Buckley opined the Respondent requires a full time travelling companion whilst on vacation. (i) Dr Buckley opined that the Respondent should see his general practitioner six times annually. (j) Dr Buckley opined that the Respondent should see a foot and leg orthopaedic surgeon every six months. (k) Dr Buckley noted a right ankle replacement was planned. (l) Dr Ian Harris opined: (i) Amputation would cost $10,000; (ii) Rehabilitation post-amputation would cost $10,000; and (iii) Knee prosthesis after amputation would cost $50,000. (m) Dr Carrigan opined the Respondent required: (i) Six monthly CRP; (ii) Six monthly x-rays; (iii) A knee brace; (iv) Custom made boots; and (v) Compression stockings. (n) Given the past history of difficulty controlling infection, there would be an increase in medication cost, and extensive rehabilitation in the event of infection, in addition to the nine days of hospitalisation which the trial judge found was reasonable.

Consideration

The nub of the appellants' argument in relation to ground 1 of their grounds of appeal is that her Honour did not approach the calculation of this head of damage by reference to a buffer but, rather, that her Honour did so by reference to individual components of the future treatment costs. They maintain that in those circumstances her Honour's award of a global sum under this head was inconsistent with the process adopted by her Honour.
Counsel appearing for Mr Walker in this Court, who did not appear in the court below, frankly concedes that the evidence put forward at first instance as to the cost of various of the components of this head of damage was not what would have been expected in the interests of Mr Walker. However, he submits that the matter was approached at the hearing before her Honour on the basis that there were certain costs that would have to be resolved on the basis of a "cushion" or "buffer". He points to the acceptance by the appellants' Counsel that there was a degree of conjecture or speculation as to the possibility of complications for which an allowance could be.
In my opinion no error is shown in the basis on which her Honour approached this head of damage. The fact that certain items were able, on the evidence, to be costed but others were not makes it appropriate for her Honour to have awarded a global sum to take into account the various matters raised in the evidence and to which her Honour referred. There was no inconsistency in so doing. The award of a global sum was a course open to her Honour (see Nominal Defendant v Lane [2004] NSWCA 405; Penrith City Council v Parks [2004] NSWCA 201). Ground 1 is not made out.
As to grounds 2 and 3 of the notice of appeal, the appellants argue that on their calculation of the items for which allowance was made by her Honour, an award exceeding $190,000 was excessive and against the weight of the evidence. Insofar as Mr Walker seeks to rely on other evidence that was before her Honour in support of the global award for future out-of-pocket or treatment expenses, the appellants contend that it is not open to him to do so (whether by notice of contention or, as was also foreshadowed during the appeal hearing, by filing a notice of cross-appeal) in circumstances where her Honour was not taken to that evidence in the course of addresses and in respect of which her Honour was not asked to award costs. Moreover, the appellants take issue with some of the additional items to which the notice of contention refers, such as the cost of taxis, pointing to evidence that suggested that by the time of the hearing (though not before) Mr Walker was capable of driving an automatic car.
Whether the identification of evidence before the court below that would support the award of damages falls, strictly speaking, within the function of a notice of contention (which is required to be filed if a defendant wishes to contend that the decision be affirmed on "grounds" other than those relied on by the court below, but does not seek a discharge or variation of any part of that decision - see r 50.11 Uniform Civil Procedure Rules 2005 (NSW)) may be moot. However, the procedural requirement for the filing of a notice of contention is to avoid surprise (see Hannover Life Re of Australasia Ltd v Dargan [2012] NSWCA 185 at [13] per Barrett JA) and that function has clearly been served by the notice of contention in the present case. What Mr Walker has done, in effect, by ground 1 of his notice of contention, has been to point to matters that gainsay the complaint by the appellants that her Honour's award of a global sum for this head of damage was against the weight of the evidence or excessive.
To the extent that her Honour approached the calculation of damages under this head by adding a buffer to those future treatment costs that had been separately costed, I accept the submission made for Mr Walker that there was evidence to support a buffer of that kind and hence her Honour's award cannot be said to be against the weight of the evidence.
Significantly, there was evidence that the risk of complications arising out of the (inevitable) further surgery, ranging from infections to the possible amputation of Mr Walker's right leg, was extremely high.
Dr Stephen R Buckley, a consultant physician in rehabilitation medicine, provided an expert witness report dated 3 November 2014 in which his prognosis was not only that the risk of further right leg infection and failure of the right total knee replacement was extremely high but also that, amongst the consequences of such further complication, the risk of right above knee amputation would remain high.
Mr Walker's treating orthopaedic surgeon, Dr Peter E Giblin, reported on 17 July 2014 that he could not detect pulses on either foot and that there was clear evidence of vascular insufficiency which was much more marked on the right compared to the left. Dr Giblin's opinion was that Mr Walker's prognosis was "guarded" and that eventually he would have an amputation of his right leg.
The appellants' calculation of future treatment costs at $190,000 made allowance for a possible one-week extra stay in hospital after each of the anticipated future surgical operations. In view of the medical history to date, and the opinions of Dr Buckley and Dr Giblin, that estimate could justifiably be seen as unreasonably conservative. Whether or not additional costs (to cover taxi travel to or from treatment, or to cover items such as hydrotherapy or the like) are included in any buffer, the evidence as to the likelihood of future complications and as to the possibility of a right leg amputation if that arose certainly sustained a buffer of (on the appellants' revised figures) a sum in the order of $60,000.
Grounds 2 - 3 of the grounds of appeal are not made out.
Ground 4 challenges the adequacy of her Honour's reasons for awarding a global sum of $250,000 under this head of damage. That complaint is not made good. It is clear from her Honour's reasons the matters that her Honour took into account in determining that an allowance should be added to the amount that she was able on the evidence to cost in respect of the inevitable knee replacements and future medication. Her Honour's reasons for so doing were sufficiently explained. This ground of appeal is also not made out.

Past and future domestic assistance

It was not in dispute that Mr Walker had required domestic assistance in the past and would require such assistance in the future. Rather, what was in dispute was the level of assistance that had been and would in future be required. The parties had agreed an amount to be awarded to Mr Walker calculated on the basis of 10 hours per week from the beginning of June 2005, when he went to live with his mother, to the end of 2005, when he was hospitalised again (an amount of $6,600). What was disputed was the amount to be awarded for the period from mid-2012, when he went to live with his daughter, Ms Walker, to the time of the hearing; and as to the level of assistance required for the future.
The primary judge determined that Mr Walker had needed assistance for two hours a day (being 14 hours a week at $27 per hour) resulting in the award of $49,140 for past domestic assistance and that he was likely to need that level of assistance per week in the future, leading to an award for future domestic assistance in the sum of $454,731.

Challenge to findings as to the award for past and future domestic assistance - grounds 5 - 16

The appellants maintain that the proper award for past domestic assistance was no more than $27,660 and for future domestic assistance was no more than $194,991, on the following grounds: as to past domestic assistance: 5. Her Honour erred in finding that the Respondent required 2 hours of domestic assistance per day for 130 weeks up to the day of the trial. 6. Her Honour erred in rejecting the views of Dr Buckley, Ms MacMaster and other medical practitioners as to the number of hours of domestic assistance the Respondent requires. 7. Her Honour failed to give adequate reasons for rejecting the expert evidence in relation to the amount of domestic assistance required by the Respondent. 8. Her Honour failed to give adequate reasons for finding that he required assistance for 2 hours a day. 9. The amount awarded by her Honour for past domestic assistance was excessive and against the weight of the evidence. 10. Her Honour erred in not finding that a proper award for past domestic assistance from June 2012 is no more than 6 hours per week at a value of $27 per hour ($21,060), which when added to the agreed sum of $6,600 to 31 December 2005 totals $27,660. as to future domestic assistance: 11. Her Honour erred in finding that the Respondent required 2 hours of domestic assistance per day provided gratuitously by his daughter for a further 3 years and then subsequently for the balance of his life at commercial rates. 12 Her Honour erred in failing to take into proper consideration the evidence of Dr Buckley, Ms MacMaster and other medical practitioners as to the amount of domestic assistance the Plaintiff [sic] will require into the future. 13. Her Honour failed to give adequate reasons for rejecting the expert evidence given as to the amount of assistance the Respondent will require into the future. 14. Her Honour failed to give adequate reasons for finding that the Respondent will require 2 hours of domestic assistance per day given gratuitously by his daughter for the subsequent 3 years and thereafter provided at commercial rates for the balance of his life. 15. The amount awarded by her Honour for future domestic assistance was excessive and against the weight of the evidence. 16. Her Honour erred in not finding that a proper award for future domestic assistance (including handyman assistance) is no more than 6 hours per week, on a gratuitous basis for 3 years post-judgment and then on a commercial basis for the balance of the Respondent's life expectancy (30 years), being a total of $194,991.
For Mr Walker, three grounds are raised in his notice of contention to support the past and future domestic assistance awards: 2. The trial judge was entitled to find that, with respect to future care, the future care needs would exponentially increase because of personal care requirements arising from: (a) The event of amputation, or further injury arising from falls. (b) In the event there was further deterioration, or (c) In the event of infection after replacement of the prosthesis, amputation or other surgery. 3. The Trial Judge was entitled to find that the Respondent may have required hostel or nursing home accommodation. 4. The amount allowed by the trial judge based on an estimate of 14-21 hours per week by the daughter did not include any allowance for lawn mowing.

Consideration

There is some overlap in the grounds relating to the awards for past and future domestic assistance and so it is convenient to deal with them together.
In essence the complaint made is that her Honour found that Mr Walker required two hours' domestic assistance per day and, in so doing, rejected the views of the medical practitioners on this issue. There is also a complaint as to the adequacy of her Honour's reasoning for so doing.
The appellants accept that it was open to her Honour to prefer the evidence of Dr Buckley to the effect that five hours' domestic assistance was required per week to carry out ordinary indoor domestic maintenance tasks (though they maintain that there was no basis for the acceptance of his opinion that three hours' handyman's assistance for outdoor domestic maintenance would also be required) and they accept that allowance for an additional hour per week for assistance with shopping (to which Dr Buckley did not refer) would be appropriate. Thus they contend that there should have been an allowance for no more than six hours' domestic assistance a week.
The complaints made as to the adequacy of reasons for rejecting the evidence of the medical practitioners and for making the findings as to the level of assistance required (grounds 7,8,13 and 14) are not tenable. The primary judge briefly summarised the evidence given on this issue by each of Mr Walker, his daughter, Dr Buckley, Ms MacMaster (a consultant occupational therapist called by the appellants), Dr Noll (an orthopaedic surgeon), and Dr Pascall (an occupational physician) and then set out her conclusion as follows: Despite the conservative assessment of the various experts, in my view it is clear that in the last two and a half years Mr Walker has been significantly disabled and has required the level of assistance described by his daughter. I do not accept that he could cope with all of the cooking - he clearly has difficulty standing for long periods and retrieving items from a low shelf. He needs assistance with vacuuming - it is not reasonable to expect him to regularly experience the exhaustion and pain he described. It is common ground that he cannot do the heavier domestic tasks such as cleaning the bathroom. He cannot change or make his bed. He would not be able to stand at an ironing board for any length of time. I accept that the limits on his mobility mean that he cannot go shopping for more than one or two items at a time.
While succinctly expressed, it is clear from the above that her Honour regarded the experts' assessments as conservative in light of the evidence as to Mr Walker's significant disabilities and the evidence of his daughter as to the level of assistance that her father had required. Her Honour was not bound to accept the opinion given by Dr Buckley in that regard. It was open to her Honour to assess that opinion in light of the other evidence as to Mr Walker's disabilities. The appellants do not cavil with the primary judge's description of Mr Walker as a very stoic man who had complained little about what were clearly significant levels of ongoing disability. Given that assessment of Mr Walker, her Honour's conclusion that Dr Buckley's assessment was conservative is not surprising. In any event, the criticism made as to the adequacy of reasons is not made out.
As to the complaints in respect of the findings that her Honour made and that the amounts awarded by her Honour were excessive and against the weight of the evidence, it is necessary to consider the evidence that was given by the respective medical practitioners and the challenge that was made to Ms Walker's evidence in cross-examination. (As to Mr Walker's evidence it is said that much of his cross-examination on the issue of domestic capacity was referenced to accounts given to doctors in 2007 or 2010, after which there had been further operations and deterioration in both the right knee and right foot and an increase in pain levels.)
First, as to Ms Walker, her evidence in chief was that she was spending probably two to three hours each day doing chores which, if her father was fit, she would be expecting him to do for himself. She said that for the first three months after her father had moved in she did the majority of the chores (cooking and cleaning the house); that he could not prepare a meal for himself if it involved him bending down; that he did not make or change his own bed and did not clean the bathroom; and that he did some of his own washing but did no ironing. Her estimate as to the level of assistance required did not include lawn mowing; just chores inside the house.
The appellants argue that the primary judge misapprehended this evidence and say that the two to three hours a week estimate of domestic assistance included household work that Ms Walker would have expected her father to perform for the benefit of the whole family had he not been injured but was nonetheless living at the house. In that regard, they point to the cross-examination in which Ms Walker was asked what her expectation would have been had Mr Walker lived with her and not been injured.
I do not accept that her Honour's acceptance of Ms Walker's evidence involved any misapprehension as to that evidence. What Ms Walker was asked about in chief was as to the level of assistance she had provided for her father. It was not put to her in cross-examination that the two to three hours that she estimated she had spent doing things around the house to assist Mr Walker was time that she would have spent performing housekeeping duties anyway or was time that she spent for the benefit of the family as a whole, not for Mr Walker himself, or that the tasks she said she carried out for Mr Walker were not tasks he could have undertaken himself given his level of disability. With respect to the cross-examiner, the question as to what she would have expected from her father by way of assistance in the household chores had he been uninjured and living with her was quite beside the point.
As to the evidence of the medical practitioners that it is said her Honour erred in rejecting, that was largely evidence given by Dr Buckley on the one hand and Ms MacMaster on the other.
Dr Buckley, in his report dated 3 November 2014, outlined various requirements for care in respect of Mr Walker. He assessed Mr Walker as unfit to carry out ordinary (indoor) housekeeping duties, which he described as "ordinary indoor domestic maintenance tasks of cleaning, scrubbing, washing and vacuuming". He considered that five hours a week of housekeeper assistance was required to carry out those duties, should Mr Walker choose to live in an average size suburban cottage. Not included in those domestic tasks, as the appellants concede, was shopping for everyday household items or food. Dr Buckley also assessed Mr Walker as unfit to carry out ordinary handyman duties and considered that three hours a week of handyman assistance was required for outdoor domestic maintenance, again should Mr Walker choose to live in an average size suburban cottage.
As to Mr Walker's personal care, Dr Buckley described Mr Walker as "currently independent with respect to activities of daily living" but opined that there was a very high risk that in the next 10 years or so Mr Walker would fall into a category of requiring personal activities of daily living support and assistance. Dr Buckley considered that from the age of 65 Mr Walker would require one hour of personal care assistance for showering and dressing daily; and that he would require an electric wheelchair or scooter from the age of 70. As to accommodation, Dr Buckley said that Mr Walker required a house with flat access with a bathroom with non-slip flooring and grab rails.
The appellants adduced evidence from Ms MacMaster, Dr Pascall and Dr Noll. On the appeal they placed most weight on Ms MacMaster's evidence as her reports were the most recent. In her 10 January 2014 report, Ms MacMaster identified a number of identified physical limitations (at least one of which - lifting - was of a greater degree than in her 2008 report).
Ms MacMaster estimated the necessary gratuitous assistance for Mr Walker broken down into various periods since his discharge from hospital. For the first year post-discharge she considered that on average it was reasonable to expect a requirement for 10 hours' assistance weekly; for the second year six hours weekly (for heavier domestic duties and heavier shopping only whilst Mr Walker's physical tolerances were expected to have been significantly reduced); for the period through to August 2007, two hours weekly (for the heavier domestic cleaning tasks and cleaning in traditionally slippery areas and for some lifting and manual handling); for the period September 2011 to September 2013, at least six weeks of assistance at 10 hours weekly post-surgery for many components of cooking, cleaning, shopping and transport, with the balance of the time at two hours weekly.
On an ongoing basis, she expected that Mr Walker would require at least two hours' weekly assistance for the heavier component of domestic tasks and taxi provision until he had access to a motor vehicle with automatic transmission. However, she said that, following any surgery, he would have an ongoing requirement for assistance at 10 hours weekly and, with any protracted periods of rest and recovery inclusive of rehabilitation, this might well extend past six weeks.
Ms MacMaster considered that Mr Walker had an increased need for external domestic tasks and handyman assistance (at three to four hours monthly) if residing in an average home. She made similar recommendations as to single level access and non-slip applications in slippery areas in relation to his accommodation.
She noted that Mr Walker had been able to continue to do his own self-care and most of the light physical demand domestic tasks and said: He now relies on assistance with the heavier cleaning and spring cleaning inclusive of cleaning of the shower and bathroom floor, moving furniture and tasks of heavy lifting and manual handling and tasks involving ladder work.
Ms MacMaster further noted that it would be appropriate for consideration to be made for Mr Walker to have a car with automatic transmission at least to access areas of close proximity for appointments and visits to family but he had been able to manage shopping and had the ability to break the loads down if necessary when shopping alone. She noted that he continued to have the capacity to carry out his own meal preparation and kitchen tasks, albeit with regular sitting breaks, and that a perching stool was expected to be required to enable him to adjust his posture regularly whilst cooking.
Ms MacMaster concluded: As reasonable and necessary I continue to believe Mr Walker has required assistance for two hours weekly for the more strenuous or physically demanding domestic tasks involved in lifting and manual handling and cleaning at low levels in traditionally slippery areas. I continue to believe he requires twenty fours [sic] annually for assistance with the heavier external maintenance and say this on the basis of him residing in an average two or three bedroom home. Post any surgical interventions it is expected Mr Walker will have a short term requirement for increased assistance. This assistance is difficult to determine exactly unless I have information on expected surgery and recovery timeframes. At minimum it is likely there will be a six week period of increased assistance at between seven and ten hours weekly. (my emphasis)
Mr Walker notes that the findings made by her Honour in the passage extracted earlier were not challenged on appeal. He submits that her Honour was obliged to assess the weight to be given to the experts' assessments and that her Honour did so (Wynn Tresidder Management Pty Ltd v Barkho [2009] NSWCA 149 at [103]), giving reasons for her assessment of the expert evidence and the lay evidence and discharging her obligation as identified in Wiki v Atlantis Relocations (NSW) Pty Limited [2004] NSWCA 174; (2004) 60 NSWLR 127. I agree.
I should add that the appellants challenge the allowance for three hours a week for a handyman for external maintenance on the basis that it can be assumed Mr Walker would not move to an average suburban house with the need for upkeep of a lawn but would be more likely to live in a ground floor townhouse or apartment (perhaps with a small yard) or residential care of some kind. However, it is by no means necessary, as the appellants accept, to assume that any single access accommodation to which Mr Walker might move would not have an outdoor area which would require some maintenance. Therefore the only real complaint seems to be as to the number of hours allowed for such maintenance. (No claim was made by Mr Walker for the cost of residential or hostel care. Had it been, it might be expected that the amount awarded would have been significantly higher.)
Insofar as the appellants accept that it would have been open to her Honour to award a sum for future domestic assistance (paid after three years) at six hours per week, based on Dr Buckley's five-hour indoor assistance estimate, not only would such an award effectively involve no handyman assistance at all but it would also allow only one hour's allowance for the necessary additional household chores (such as cooking and shopping) that were not included in Dr Buckley's estimate but were accepted by her Honour as tasks with which Mr Walker would require assistance.
Her Honour gave reasons for preferring Ms Walker's observations as to Mr Walker's disabilities to the assessment of the various experts as to the assistance he required to perform domestic tasks. Her Honour's conclusion as to the level of assistance needed both in the past and for the future was not against the weight of the evidence. Mr Walker could not perform many household tasks and those that he could (such as cooking) were done with difficulty. His need for assistance will almost inevitably increase as his condition deteriorates.
None of the challenges to her Honour's award of damages for past or future assistance has been made out.

Conclusion

The appeal should be dismissed with costs.
PAYNE JA: I agree with the reasons of Ward JA and the order her Honour proposes.
HARRISON J: I agree with Ward JA.

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: 09 May 2016

At a glance

Court

Decision date

Before

Source

Judgment (12 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (6)

Cited By (2)