Top Hut Banoon Pastoral Co Pty Ltd t/as Trustee for the Wakefield Family Trust v Walker

Solicitors: HWL Ebsworth Lawyers (Appellant) Don Cameron & Associates (First respondent) Turks Legal (Second respondent) File Number(s): 2021/144138 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2021] NSWDC 147 Date of Decision: 23 April 2021 Before: Weinstein SC DCJ File Number(s): 2018/166427; 2018/357572

[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] The first respondent, Ms Julie Walker, injured herself when falling off a step upon entering an accommodation hut at a grazing property at Banoon on 28 July 2015. The step consisted of a plank of wood resting on two timber stump blocks. The evidence was unclear as to whether the plank was affixed to either of the two blocks. Ms Walker was employed as a shearers' cook by the second respondent, Shear Away Pty Ltd (Shear Away). Ms Walker sued the occupier of the premises, Top Hut Banoon Pastoral Co Pty Ltd (Top Hut), for damages. Liability was admitted. Top Hut brought a cross-claim for contribution or indemnity against Shear Away contending that as employer it had failed to take proper care for Ms Walker's safety by not carrying out a sufficiently careful safety assessment of the premises. The primary judge (Weinstein SC DCJ) dismissed Top Hut's cross-claim against Shear Away and awarded Ms Walker damages in the sum of $992,866.34. Top Hut appeals against the dismissal of its cross-claim and in part against the award of damages for: past economic loss, assessed at $920 net per week (for 26 weeks per year), of $136,758; future economic loss, for 7.5 years up until Ms Walker turns 67, and applying a discount for vicissitudes of 30 percent on the basis of Ms Walker's pre-existing PTSD and diabetes, of $99, 626.80; past gratuitous domestic assistance at $88,336; and future commercial care, based on 8.5 hours per week at $43.50 per hour for 796.6 weeks, and applying a discount for vicissitudes of 15 per cent, of $250,531. The four issues on appeal were: Shear Away's liability as Ms Walker's employer; accepting that the primary judge erred in finding that Top Hut had not tendered any medical evidence, the significance, if any, of the two expert medical reports tendered by Top Hut; whether the award of damages for past and future economic loss was excessive, including whether the reduction for vicissitudes for future economic loss (30%) should have been greater; and whether the award of damages for future commercial care was excessive, including whether the reduction for vicissitudes (15%) should have been greater. Held, dismissing the appeal (per Gleeson JA, Preston CJ of LEC and Stevenson J agreeing): As to the first issue and Shear Away's liability as employer The scope of the employer's duty, and what constitutes a failure to fulfil this duty, depends upon all the circumstances. The circumstances included that Ms Walker was working at two different grazing locations under the control of Top Hut, the accommodation at Banoon was used infrequently (about twice a year) and the condition of the accommodation building as known or ought to have been known to the employer was that there had not been any prior problems in the two previous years in relation to the accommodation or the steps leading up to any of the buildings at the premises: [30]. In these circumstances, the scope of duty required the employer to conduct a visual inspection of the property: [31]. There was no error by the judge in finding that a sufficient inspection had been performed by the employer: [32]. Moreover, there was no error by the judge in finding on causation that a physical inspection of the step would not have revealed the defect, given Ms Walker was 93 kg and had previously walked on the step and not reported any instability: [34]-[35]. South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8; AEA Constructions Pty Ltd v Wharekawa; AEA Constructions Pty Ltd v Building Partners Pty Ltd [2019] NSWCA 176; Dib Group Pty Ltd Trading as Hill & Co v Cole (2009) Aus Torts Reports 82-022; [2009] NSWCA 210 referred to. As to the second issue and the relevance of the two expert medical reports The error by the judge in not referring to the two expert medical reports tendered by Top Hut was not material - no written or oral submissions were advanced at trial by Top Hut relying upon the reports: [59]-[60]. Further, in the absence of arguments by Top Hut based on the medical evidence, it was not necessary for the judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected: [61]. Taupau v HVAC Constructions (Queensland) Pty Ltd [2012] NSWCA 293; HSH Hotels v Multiplex [2004] NSWCA 302; Prouten v Chapman [2021] NSWCA 207; Mifsud v Campbell (1991) 21 NSWLR 725 referred to; Barnes v State of New South Wales [2017] NSWCA 254 distinguished. As to the third issue and the award of damages for past and future economic loss The judge did not overlook Ms Walker's poor employment history. Importantly, there were unchallenged findings that Ms Walker had found a safe haven working as a shearers' cook, as it suited her PTSD, that she was actively looking for work and intended to work full-time: [48]-[49]. There was no error in the award of past economic loss: [51]. Graham v Baker (1961) 106 CLR 340; Sretenovic v Reed [2009] NSWCA 280 referred to. Although the judge did not expressly refer to s 13 of the Civil Liability Act 2005 (NSW), it was plain from the reasons that the judge proceeded on the following assumptions: Ms Walker's future earning capacity was $920 net per week (for 26 weeks per year); Ms Walker would have continued to work as a shearers' cook until retirement at the age of 67 years; and a reduction for vicissitudes of 30 per cent was appropriate, taking into account her remaining short working life and that Ms Walker had found a job that suited her PTSD: [52]-[58]. There was no error in any of these assumptions. ANZ Group Ltd v Haq [2016] NSWCA 93; Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v The Workers Compensation Nominal Insurer (2018) 98 NSWLR 171; [2018] NSWCA 146; Koeck v Persic (1996) Aus Torts Reports 81-386; Nestle Australia Ltd v McDougall [1998] NSWCA 158 referred to. As to the fourth issue and the award of future commercial care There was no ground of appeal challenging the award of damages for past domestic care and no application was made to amend the notice of appeal. The submission could be rejected on this basis alone: [67]. In any case, it was well-open to the judge to accept Ms Walker's evidence of her estimates of the domestic care provided by her son and a friend, which was supported by the unchallenged expert report of an occupational therapist. Top Hut's medical expert did not, and was not in a position to, give evidence calculating or assessing the number of hours required for particular items of domestic assistance: [68]-[72]. Sampco Pty Ltd v Wurth [2015] NSWCA 117 considered. Top Hut's submissions did not identify how the judge's assessment of 15 per cent for vicissitudes miscarried. The cases referred to where a greater discount was applied are distinguishable and Top Hut's expert medical evidence was inconclusive and did not support a greater discount: [77]-[83]. Metaxoulis v McDonald's Australia Limited [2015] NSWCA 95; Avopiling Pty Ltd v The Workers Compensation Nominal Insurer (2018) 98 NSWLR 171; [2018] NSWCA 146 distinguished.

Judgment

1. GLEESON JA: On 28 July 2015, the first respondent, Ms Julie Walker, injured her lower back, right wrist, left ankle and right knee when falling off a step upon entering an accommodation hut at a grazing property at Banoon, near Mungo, after the step moved and fell apart. At the time of the accident, Ms Walker was employed as a shearers' cook by the second respondent, Shear Away Pty Ltd (Shear Away).
2. Ms Walker sued the appellant, Top Hut Banoon Pastoral Co Pty Ltd (Top Hut), as occupier of the premises for damages alleged to have been suffered by her. Liability was admitted. Top Hut brought a cross-claim for contribution or indemnity against Shear Away contending that as employer it had failed to take proper care for Ms Walker's safety by not carrying out a sufficiently careful safety assessment of the sole means of access to and from the accommodation hut. The primary judge (Weinstein SC DCJ) dismissed Top Hut's cross-claim against Shear Away and awarded Ms Walker damages in the sum of $992,866.34 comprising the following heads of damage ([2021] NSWDC 147): Non-economic loss $240,500.00 Past out-of-pocket expenses $ 58,347.19 Future out-of-pocket expenses $136,758.00 Loss of past superannuation $ 15,043.38 Future economic loss $ 99,626.80 Loss of future superannuation $ 13,509.39 Past domestic assistance $ 88,336.00 Future commercial care $250,531.00 Fox v Wood $ 49,313.60 Total: $992,866.34
3. Top Hut appeals against the dismissal of its cross-claim and in part against the award of damages, specifically, the amounts allowed for past and future economic loss and past and future domestic assistance.
4. For the reasons that follow, the appeal should be dismissed.

The circumstances of the accident

1. The circumstances of the accident as described by the primary judge and supplemented by reference to the uncontroversial evidence were as follows.
2. The main buildings at Banoon Station comprise a row of huts: primary accommodation, a separate cook house, and another separate accommodation hut. The shearing shed is located a couple of hundred metres away from these buildings. Mr Wayne Godde was a shearing contractor for his wife's company, Shear Away. After shearing at another property owned by Top Hut for between eight to ten days, Mr Godde travelled to Banoon on 28 July 2015 and arrived at around 5 pm, which Mr Godde described as dusk. Ms Walker had travelled separately to Banoon, arriving shortly prior to Mr Godde. This was the third occasion that Mr Godde had stayed at Banoon, having previously shorn sheep there in 2013 and 2014.
3. Upon his arrival, Mr Godde commenced organising for the following days which involved putting the stores in the mess, carting the wool press and setting up the shearing shed. Mr Godde passed and glanced at the step to the accommodation hut at various times while unloading food stores from the trailer to the kitchen and did not notice anything amiss. At about 7 pm, he became aware of Ms Walker's injury when another employee informed him that she had been hurt.
4. The step to the entrance of the accommodation hut where Ms Walker was injured consisted of a plank of wood resting on two timber stump blocks. The evidence was unclear as to whether the plank was affixed to either of the two blocks which supported it in any way, other than by its own weight. There was some evidence that the step was affixed in some manner to at least one of the timber stumps. Ms Walker used the step outside the accommodation hut several times on 28 July 2015 without incident. Later that evening, after she had showered in another building, Ms Walker was returning to her own room when she put her foot on the step, and as she was bringing her other foot down, felt it tilt causing her to fall to the ground and scream for help. She noticed that the step had broken. One side had come "loose of the wood" and had torn completely off, while the other side was "hardly attached but there". His Honour accepted her evidence as to the mechanism of her fall: at [19], [32].
5. The following day, Mr Godde discussed the accident with Mr Wakefield, the occupier of the property, who said that his son-in-law was supposed to fix all these sorts of things before the shearing. The step was then screwed into place and fixed to the blocks.
6. In cross-examination by counsel for Top Hut, Mr Godde agreed that it would be prudent to inspect the accommodation to ensure that it is safe for employees. Mr Godde disagreed with the cross-examiner's suggestion that an inspection of the step would involve "just simply tapping it with your foot"; Mr Godde said he could not be expected to go around and inspect and tap every piece of timber throughout the quarters and shearing sheds. Although he agreed that a cursory inspection would have found the step to be unsafe, that answer was part of an argumentative response, in which Mr Godde asked rhetorically, "[w]hat about all the other steps and all the other steps in the whole bloody sheds and everything else?".
7. In cross-examination by counsel for Ms Walker, Mr Godde said that Ms Walker had already walked up and down the stairs several times that day and that he had a clear sight line to the step which looked "perfectly normal and fine". He said that the only way he could have discovered that the step was unsafe was to have physically attempted to raise the step with his hand or kick it with his foot, and if that was required, he would have had to do that to hundreds of steps throughout the huts. The primary judge accepted Mr Godde's evidence without hesitation: at [34].

Ms Walker's pre and post-accident circumstances

1. Ms Walker was 54 at the time of the accident and 59 and a half at the time of the trial. She first began working as a shearers' cook in about 2014, having worked on and off in various roles throughout her life. She had several medical issues, including being diagnosed as diabetic in 1999. She suffered from chronic post-traumatic stress disorder (PTSD) as a result of sexual abuse as a young girl. Due to her anxiety and PTSD, Ms Walker could not work in the city and struggled to be around a lot of people. She found that her PTSD could be triggered if she saw someone who looked like her abuser. Although trained as a nurse's aide, the longest she had ever been able to work in such a role was for five months. Her evidence was that her job as a shearers' cook eased her symptoms of post-traumatic stress to the extent that she stopped having anxiety attacks and bad depression. She said that this was the first time that she had ever felt comfortable at work.
2. There is no dispute as to the extent of the injuries caused by the accident on 28 July 2015. Although Ms Walker returned to work for Mr Godde, even with the support of a friend, she found that she could not work because she could not stand on her foot. An x-ray report on 4 August 2015 found an ununited fracture of her right wrist but no fracture of her left foot. She had pain in her hand and back and was struggling so much that on 18 August 2015 she quit her employment with Mr Godde. In 2017, her benefits from WorkCover stopped because she no longer had the capacity to work.
3. It is not necessary to refer to the medical evidence tendered in Ms Walker's case at trial. The primary judge found Ms Walker to be an honest and impressive witness who did not exaggerate the extent of her injuries or disabilities: at [32]. In addition, Top Hut accepts that, as a result of her injuries, Ms Walker was permanently incapacitated for remunerative employment and has no residual work capacity.

Issues on appeal

1. The ten grounds of appeal raise the following issues: 1. the liability of Shear Away as employer; 2. accepting that the primary judge erred in finding that Top Hut had not tendered any medical evidence, the significance, if any, of the two expert medical reports tendered by Top Hut; 3. whether the award of damages for past and future economic loss was excessive, including whether the reduction for vicissitudes for future economic loss (30%) should have been greater; and 4. whether the award of damages for future commercial care was excessive, including whether the reduction for vicissitudes (15%) should have been greater.
2. Although there is no ground of appeal challenging the award of damages for past domestic care, Top Hut contended in its written submissions that the threshold under s 15(3) of the Civil Liability Act 2002 (NSW) had not been met. No application was made by Top Hut to amend the notice of appeal, despite Ms Walker's submissions noting the absence of any ground of appeal challenging this component of the award of damages.
3. Both Ms Walker and Shear Away rely upon notices of contention in arguing that, had his Honour referred to the two expert medical reports tendered by Top Hut, the award of damages would not have been any different.

Relevant principles

1. The civil liability of an employer for injury to a worker would give rise to an award of damages to which Pt 5 Div 3 of the Workers Compensation Act 1987 (NSW) applied: s 151E. Accordingly, the Civil Liability Act did not apply: Civil Liability Act, s 3B(1)(f). The principles to be applied in determining the liability of an employer to its employee in negligence are those applied at general law, unaffected by statute. There is no dispute that Ms Walker had at least 15 per cent whole person impairment and thus had an entitlement to modified common law damages in the event that the employer was found negligent.
2. An employer's duty is not an absolute duty to keep an employee free from injury, but a duty of reasonable care: South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8 at [117]; AEA Constructions Pty Ltd v Wharekawa; AEA Constructions Pty Ltd v Building Partners Pty Ltd [2019] NSWCA 176 at [66], citing Dib Group Pty Ltd Trading as Hill & Co v Cole (2009) Aus Torts Reports 82-022; [2009] NSWCA 210 at [27].
3. An employer who dispatches employees to other places or premises must take reasonable care to devise a safe system of work. What constitutes a failure to fulfil this duty must depend upon all the circumstances. In Dib Group, Basten JA (Beazley and McColl JJA agreeing) summarised the principles at [51]-[52]: [51] The modern case law with respect to the duty of employers which despatch employees to other places or premises, may be seen to commence with the judgment of Lord Denning in Smith v Austin Lifts Ltd [1959] 1 WLR 100 at 117, where his Lordship stated: "Notwithstanding what was said in Taylor v Simms & Simms (1674 LT 414), it has since been held, I think rightly, that employers who send their workmen to work on the premises of others cannot renounce all responsibility for their safety. The employers still have an over-riding duty to take reasonable care not to expose their men to unnecessary risk. They must, for instance, take reasonable care to devise a safe system of work …; and if they know or ought to know of a danger on the premises to which they send their men, they ought to take reasonable care to safeguard them from it. What is reasonable depends, of course, on the circumstances." [52] Smith v Austin Lifts Ltd was applied by this Court soon after it was delivered, in Sinclair v William Arnott [Pty Ltd; Kell & Rigby Pty Ltd (Third Party) (No 2) (1963) 64 SR (NSW) 88]. The judgment of the Court, delivered by Walsh J, stated at 92: "The principle … to be derived from the authorities is that the duty of care is recognised as existing where employees are sent to work in another's premises, and that what constitutes a failure to fulfil this duty must depend upon all the circumstances."
4. Addressing the relevant circumstances, Basten JA said in Dib Group at [54]: The employer's duty, however effected, to adopt safe systems of work and to provide proper plant and equipment, will operate differently on its own premises and in circumstances over which it has full control, as compared with premises under the control of others and circumstances over which it does not have control. Where the safety of premises is at stake, as in this case, it is appropriate to ask quite specific questions with respect to what may be expected of an employer exercising reasonable care for the safety of its employees. For example, is it reasonable for the employer to request or require access to premises to carry out its own safety inspection? Is it necessary (and sufficient) if the employer inquires of the occupier what steps it has taken to conduct such an assessment? Is it necessary (and sufficient) for the employer to inquire in specific terms of its own employees as to the nature of the conditions they encounter at other premises?

Primary judge's reasons

1. The primary judge correctly observed that the Civil Liability Act did not apply to any claim for negligence against the employer: at [4]. After stating that the duty owed by an employer was a duty to take reasonable care to avoid exposing the employee to unnecessary risks of injury (Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; [1999] HCA 59 at [98]), the judge referred to the passages in Dib Group at [51], [54]-[55], where Basten JA considered the scope of an employer's duty when employees are dispatched to other places of work.
2. The primary judge found that the content of Shear Away's duty of care did not extend to Mr Godde arriving prior to his employees and conducting an inspection of each step in the accommodation, shearing shed and surrounds. The judge considered that it was unreasonable to expect Mr Godde to have conducted a separate investigation of the very step from which Ms Walker fell: at [50].
3. As to the issue of breach of duty, the judge found that Mr Godde, on behalf of the employer, had a duty to cast his eyes over the premises to ensure that it appeared safe, but he did not have an obligation to "manipulate" each step, as submitted by Top Hut. In finding that reasonable precautions did not require an inspection in any greater detail than that carried out by Mr Godde, the judge took into account the context of Mr Godde's previous attendance at the premises and his contact with the occupier. The judge rejected Top Hut's submission that Mr Godde had a duty to "kick" the step or conduct an inspection which would have revealed the defect. He concluded that there was no breach of duty on the part of the employer: at [52]-[55].
4. As to causation of injury, the judge rejected Top Hut's submission that an inspection of the step, cursory or otherwise, or a kick of the very step, would have revealed the defect. Thus, there was no causal connection between the (alleged) breach of duty of the employer and the injury suffered by Ms Walker. The judge based this finding on the fact that Ms Walker weighed approximately 93 kgs at the time of the accident, had walked across the step on at least two occasions prior to the accident and it had not collapsed, and concluded that any inspection would likely have only identified the step being in a reasonable condition: at [57].

Submissions

1. Top Hut challenged the primary judge's reasons at three levels: scope of duty, breach and causation.
2. As to scope of duty, Top Hut submitted that Shear Away knew that the accommodation provided by Top Hut was rudimentary in nature, used infrequently, and included external buildings which would not receive regular upkeep. According to the submission, it was incumbent upon Shear Away to conduct a thorough inspection of the premises at which its employees would be discharged for the purpose of carrying out their work, including being accommodated on the site.
3. As to breach of duty, Top Hut submitted that reasonable precautions required "the employer to physically inspect the stairs … in a practical way, that is, by undertaking a broad observation of the area, a scoping", which involved "walking up to them, stopping, examining them by looking at them, testing it with one's foot", specifically, "by stepping on it, stepping up and stepping back to test to see whether it was stable under foot". These precautions were described by senior counsel for Top Hut as "two cascading inspections, the visual inspection followed by testing by walking up and down the step a few times".
4. As to causation of injury, Top Hut submitted that the failure to inspect was causally related to Ms Walker's fall because of the temporal coincidence between her arrival at the property and the occasion of the injury soon after. This was said to be compelling evidence of causation.

Consideration

1. Where the employer is not in control of the premises or place at which the worker is injured, the scope of the employer's duty, and what constitutes a failure to fulfil this duty, must depend upon all the circumstances: Dib Group at [52]. Here, the relevant circumstances included that Ms Walker was working as a shearers' cook at two different grazing locations under the control of Top Hut about 80 kilometres apart, and the accommodation at Banoon was used infrequently (about twice a year). As to what the employer knew or ought to have known of the relevant risks to employees arising from the condition of the accommodation building, Mr Godde's evidence was that, whilst there are often problems and defects with shearers' accommodation generally, he had not had any prior problems in the two previous years in relation to the accommodation or any other buildings at Banoon, there had only been "minor issues" with the shearing shed, and there had not been any problems with any steps leading up to any of the buildings.
2. The parties diverged as to the scope of the inspection required. In my view, the primary judge was correct to find that a visual inspection by the employer of the premises, including of the accommodation building, was required by an employer in the position of Shear Away to ensure that its employees were not exposed to unnecessary risk.
3. The primary judge found that a visual inspection had been sufficiently performed by Mr Godde who observed the step from a short distance when unloading the stores from his trailer to the kitchen, the door to which was a couple of metres from the step to the accommodation hut. There was no error in this finding in circumstances where the judge found that Mr Godde had a clear sightline to the step which looked "perfectly normal and fine", and the evidence did not support Top Hut's submission in this Court that because of the rudimentary and rustic nature of the buildings, the employer ought to have known that the condition of the step was unstable or likely to collapse or had a "propensity to collapse". Not only was there no evidence of the age or condition of the step from which such an inference could be drawn, the evidence was to the contrary; the employer had not experienced any problems with any steps leading up to any of the buildings in the previous two years when attending the property.
4. Assuming, contrary to the primary judge's conclusion, that the scope of the duty included a physical inspection of the step leading up to the accommodation hut, there was no error by the judge in rejecting Top Hut's submission that reasonable care required the employer to either kick the step or physically handle or manipulate the step to ensure that it remained static when downward force was applied to it. Unsurprisingly, those submissions were not pressed in this Court.
5. Addressing Top Hut's submission in this Court that reasonable precautions by the employer required physical testing of the step by walking up and down the step a few times, there was no error by the primary judge in finding on causation that an inspection of the step cursory or otherwise would not have revealed the defect. Ms Walker, who did walk up and down the step on several (separate) occasions, had not experienced or reported any instability of the step prior to the accident. That proposition was not put to Ms Walker in cross-examination.
6. Further, and contrary to Top Hut's submissions, an inference of causation is not to be drawn from the mere temporal coincidence of the arrival of Ms Walker at the property and the accident. It is speculative to suggest, as Top Hut does, that if Mr Godde had physically tested the step by walking up and down the step a few times, he would have noticed instability or the absence of affixation of the step to the timber stumps, when Ms Walker had not noticed or reported any instability or other defect, having used it several times before the accident.
7. Given the above conclusion, it is not necessary to consider the issue of apportionment as between the occupier and the employer.

Liability of the occupier

1. The Civil Liability Act applied to the assessment of damages against Top Hut.

Past economic loss

1. The primary judge concluded that Ms Walker's past economic loss should be assessed as $920 net per week (for 26 weeks per year) which, up until the date of judgment, amounted to $136,758: at [92].
2. In so concluding, his Honour took into account Ms Walker's pre-accident work history, the difficulties arising from her pre-existing PTSD, and the enjoyment and calm she had found in work as a shearers' cook. It is appropriate to reproduce in full the unchallenged findings at [86]: Ms Walker gave evidence that she loved working as a shearers' cook and that it suited her PTSD, as it was largely solitary in nature. While it is agreed that she had a varied work history, the plaintiff submits that her past earnings are not reflective of her true past economic loss since the incident. It was submitted by Mr Dooley that the plaintiff had finally found a job which she enjoyed and was capable of performing. She seized the opportunity, which she intended to pursue to her late 60s, but the opportunity was cut short by injury. I accept the evidence of the plaintiff. She spoke wistfully of her employment, and her sadness when it was taken away from her. Mr Sleight noted that the plaintiff's longest pre-injury employment was 5 months, and that she was always trying to find full-time work. In my opinion, after many years of struggling to find suitable employment, the plaintiff finally found a job that suited her skills and temperament. Some people bloom later in life. In my view, the plaintiff is amongst those persons and such is the tragedy of the instant case. After many years struggling with PTSD, and having trained as a nurse's aide, the plaintiff found that she struggled to be employed in situations where she had to be amongst many people. After working as a cook at roadhouse, she fortuitously found the work as a shearers' cook. I note that in his evidence, Mr Goode did not say anything negative about the plaintiff's performance at work and he was not cross-examined by Mr Sleight on this topic.
3. His Honour's reasons for his conclusion as to past economic loss are set out at [87]: I find, therefore, that the plaintiff was a good employee who would have continued working as a shearers' cook as long as she was able. There was evidence that a full-time chef was employed by Mr Goode in his business for 30 weeks a year at a rate of approximately $60,000 per year including room and board. The plaintiff gave evidence that she had looked for work as a shearers' cook by making telephone calls and looking at Facebook pages and that she had the intention to work as a full-time cook on a cattle station. I do not doubt that word of mouth would also have assisted her, and that in the years since the incident, she would have been employed as a shearers' cook for say 26 weeks of the year, as the evidence suggested that the work was seasonal and that each contract lasted between three to five weeks.

Future economic loss

1. The primary judge concluded that Ms Walker's future earning capacity, but for the accident, would have been $920 net per week for 26 weeks per year. His Honour considered that she was now unable to work because of the accident. Given Ms Walker's age at the date of the trial (59 and a half), his Honour allowed future economic loss for 7.5 years up until the age of 67, and applied a discount for vicissitudes of 30 per cent on the basis of Ms Walker's pre-existing PTSD which had previously had an impact on her employability. This resulted in an amount of $99,626.80 to the date of judgment.
2. His Honour's reasons for his conclusion as to future economic loss are set out at [96]: As I have said, after many years of looking for suitable employment, the plaintiff found work as a shearers' cook. It suited her pre-existing PTSD and she was good at her work. She looked forward to performing this kind of work into her late 60s, which is the usual retirement age. I accept the plaintiff's evidence in that regard, and I find on the probabilities that she would have continued in this seasonal employment for 26 weeks per year and earned approximately $920 per week net, averaging out to $460 per week over the year.

Submissions

1. Top Hut contends that Ms Walker's past and future economic loss ought to have been determined to be either $80 or $252 per week, as opposed to $920 net per week (for 26 weeks), which the judge allowed. Top Hut also contends that a 40 per cent discount, rather than a 30 per cent discount, should have been applied for vicissitudes in relation to future economic loss.
2. Top Hut submitted that since Ms Walker had a poor employment history, pre-existing PTSD and poorly controlled diabetes, her employment prospects were poor, irrespective of the injuries she sustained. In writing, Top Hut submitted that the evidence of Dr Jackson and Dr Economos supported only a modest award of past and future economic loss. However, in oral argument, senior counsel for Top Hut clarified that this evidence was relied upon in support of the challenge to past domestic assistance and future commercial care, and it could not challenge the finding that Ms Walker was left with no residual work capacity as a result of the accident.
3. In oral argument, Top Hut submitted, in the alternative, that if past and future economic loss was to be assessed by reference to Ms Walker's earnings as a shearers' cook (being $920 net per week), then the assessment at that rate should only be for ten weeks per year.

Consideration

1. Compensation for loss of earning capacity is awarded because diminution in a plaintiff's earning capacity is or may be productive of a financial loss: Graham v Baker (1961) 106 CLR 340 at 347 (Dixon CJ, Kitto and Taylor JJ); [1961] HCA 48. It is for the plaintiff to prove the loss for which compensation is claimed: Sretenovic v Reed [2009] NSWCA 280 at [80] (McColl JA, Beazley JA agreeing).
2. Top Hut's essential complaint is that the primary judge overcompensated Ms Walker for past and future economic loss because the judge did not give sufficient consideration to Ms Walker's poor employment history prior to the accident.
3. Contrary to Top Hut's submission, the primary judge expressly took into account that prior to her employment as a shearers' cook, Ms Walker had not earned much from personal exertion, and that in the five years prior to her injury, she had never earned more than approximately $5,000 net in a single year from personal exertion. It is uncontroversial that in the financial years immediately preceding the accident, Ms Walker's income, other than from social security benefits, was modest: $4,017 in the financial year ending 30 June 2012, nil in the financial year ending 30 June 2013 when Ms Walker did not work at all because of her PTSD and other illness at the time, and $4,730 in the financial year ending 30 June 2014. Ms Walker's taxable income in the financial year ending 30 June 2015 was $13,109. This amount included wages from her employment as a shearers' cook for a total of nine weeks with two different employers, comprising three to four weeks in the winter of 2014 ($4,442 gross) and five weeks in April/May 2015 ($6,773 gross).

Past economic loss

1. A major difficulty with Top Hut's focus on Ms Walker's poor employment history before commencing work as a shearers' cook in 2014, is that this ignored the judge's unchallenged findings that Ms Walker had, in effect, found a safe haven working as a shearers' cook; it suited her PTSD because the work was largely solitary in nature. Nor is there any challenge to the judge's findings that Ms Walker was actively looking for work as a shearers' cook and intended to work as a full-time cook on a cattle station.
2. In addition to the nine weeks of work she undertook as a cook over 2014 and 2015 (four weeks over winter 2014 and five weeks over April/May 2015), Ms Walker had commenced work with Shear Away on 20 July 2015. She worked for a week prior to the accident and, but for the accident, could have anticipated completing her contract with Shear Away, which included work in the Snowy Mountains or elsewhere. Although there was no direct evidence of the length of this contract, it can be inferred that Ms Walker would have worked at least about another 8-10 days at Banoon, similar to the period at the other property owned by Top Hut, and that further work was available, as she returned to work for Shear Away briefly in August 2015 before having to quit her employment on 18 August 2015 because of her injuries.
3. Ms Walker claimed past economic loss for 30 weeks of work as a shearers' cook based on Mr Godde's evidence that Shear Away employed a full-time cook for that period each year. The judge adopted a slightly lower estimate of 26 weeks per year. That finding was open on the evidence. Top Hut's alternative submission in this Court that the assessment based on the wages of a shearers' cook should only be for ten weeks per year does not adequately reflect Ms Walker's prospects of obtaining further work as a shearers' cook, but for the injury. The judge was entitled to infer from Ms Walker's evidence (her actual work as a shearers' cook, her evidence of actively seeking further similar work, and her evidence of the sources of such work) and Mr Godde's evidence of the length of full-time work available each year, that Ms Walker could obtain work as a cook for a period of 26 weeks each year. There was no error in the award of past economic loss.

Future economic loss

1. Section 13 of the Civil Liability Act is relevant to an award of future economic loss. It provides: 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.
2. Although the primary judge did not expressly refer to s 13 of the Civil Liability Act, it is plain from the reasons at [4] that the judge proceeded on the basis that the Civil Liability Act, including s 13, applied to Ms Walker's claim against Top Hut. And, although not expressly stated to be assumptions, the reasons of the judge contain the following assumptions: 1. Ms Walker experienced a diminution in her pre-injury earning capacity of $920 net per week (for 26 weeks per year); 2. Ms Walker would have worked until the age of 67 years; 3. allowance should be included for superannuation as an employee; and 4. a discount for vicissitudes of 30 per cent should be applied.
3. As to the first assumption, it was well-open on the evidence to find that Ms Walker's future earning capacity was $920 net per week (for 26 weeks per year). Top Hut did not challenge the primary judge's finding that Ms Walker has no residual work capacity post-accident.
4. As to the second assumption concerning Ms Walker's most likely future circumstances but for the injury, it was open to the judge to accept that Ms Walker would have continued to work as a shearers' cook until retirement at the age of 67 years.
5. As to the fourth assumption, Top Hut submitted that a deduction of 40 per cent, rather than 30 per cent, should have been made by his Honour as his Honour did not make sufficient "allowance, by way of vicissitudes, against the possibility that other events will intervene": Australia and New Zealand Banking Group Ltd v Haq [2016] NSWCA 93 at [50] (Basten JA): Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v The Workers Compensation Nominal Insurer (2018) 98 NSWLR 171; [2018] NSWCA 146 at [153] (Payne JA, McColl and White JJA agreeing). The appropriate contingency has been described as "essentially an exercise in value judgment or in nature, quasi-discretionary": Koeck v Persic (1996) Aus Torts Reports 81-386, 63,360.
6. As an evaluative decision, the question whether a deduction for contingencies is inadequate or excessive in a particular case is to be approached with considerable caution by an appellate court. For this reason, an appellate court is not justified in substituting its own figure simply because it would have awarded a different figure if it had tried the case at first instance. It will not interfere with the decision of the trial judge in the absence of an error of fact or law or manifest unreasonableness or injustice: Koeck v Persic (63,358 - 63,359); Nestle Australia Ltd v McDougall [1998] NSWCA 158 at 6-7 (Beazley JA, Mason P and Powell JA agreeing); Kember v Thackrah [2000] WASCA 198 at [27]-[29]; Brocx v Mounsey [2010] WASCA 196 at [76]. This approach is consistent with the deferential standard applicable to appellate review of an exercise of judicial discretion, rather than the general "correctness" standard of appellate review, as discussed by Gageler J in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [46]-[49].
7. In this case, Ms Walker was aged 59 and a half at the date of the hearing. She had a relatively short future working life to the age of 67, but for the accident. The judge increased the usual 15 per cent discount for vicissitudes to 30 per cent on the basis of Ms Walker's pre-existing PTSD which had previously had an impact on her employability. Taking into account her remaining short working life and that Ms Walker had found a job that suited her PTSD, a reduction for vicissitudes of 30 per cent was significant. No error has been demonstrated in the judge's allowance for vicissitudes.

Medical reports tendered by Top Hut

1. At trial, Top Hut tendered two medical reports, one of Dr Robin Jackson, an orthopaedic surgeon, dated 29 September 2018, and the other by Dr James Economos, an occupational physician, dated 15 October 2018. There is no dispute that the judge erred when stating at [20] of his reasons that Top Hut did not tender any medical reports. However, that error is not material. Top Hut conceded in this Court that no written or oral submission were advanced at trial relying upon the evidence of Dr Jackson or Dr Economos.
2. In these circumstances, Top Hut's reliance on authorities for the proposition that a trial judge is obliged to consider the issues raised by a party and the evidence on which a party relies, including arguments based on medical reports, is misplaced: cf Barnes v State of New South Wales [2017] NSWCA 254 at [26]-[27].
3. Further, given the issues at trial and the lack of arguments based on the medical reports, this is not a case where, in the absence of cross-examination, the primary judge was required to analyse the expert evidence in order to make findings on the issues to which the expert evidence was directed and decide whether to accept one expert or a group of experts over another on the cogency of the evidence: Taupau v HVAC Constructions (Queensland) Pty Ltd [2012] NSWCA 293 at [132] (Beazley JA, Basten and Macfarlan JJA agreeing); HSH Hotels v Multiplex [2004] NSWCA 302 at [87] (Tobias JA, Mason P and Hodgson JA agreeing). Nor was it necessary, in the absence of arguments by Top Hut based on the medical evidence, for the judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected: Prouten v Chapman [2021] NSWCA 207 at [32] (Brereton JA, Meagher and Leeming JJA agreeing), citing Mifsud v Campbell (1991) 21 NSWLR 725 at 728 (Samuels JA, Clarke JA and Hope AJA agreeing).

Past domestic assistance

1. The primary judge assessed damages for past gratuitous domestic assistance during the period 28 July 2015 to 1 November 2018 for 12 hours per week at $30 per hour, and during the remaining period to the date of trial for eight hours per week at $32 per hour. This gave a total amount of $88,336 for past domestic assistance comprising $61,200 for the first period and $27,136 for the second period: at [111]-[113].
2. In reaching those conclusions, his Honour rejected Top Hut's submission that the threshold in s 15(3) of the Civil Liability Act was not met: at [109]. His Honour accepted Ms Walker's evidence that since the accident, her son, Travis, had provided at least 8 hours of assistance per week. This was comprised of 5 hours of cleaning and associated tasks each Saturday, 1.5 hours for assistance with preparation of the evening meals per week, and 1.5 hours in direct assistance each Sunday taking Ms Walker shopping for groceries and returning her home. His Honour was satisfied that there had been a reasonable need for these services and that the need was entirely attributable to the injury that the plaintiff suffered.
3. In addition, in respect of the first period, his Honour found that Ms Walker also required assistance attending medical appointments, including her appointments with a psychologist, and that she received this assistance from her friend Allan who drove her to and from appointments. Although Ms Walker claimed 6 hours per week for this assistance, his Honour allowed 4 hours additional assistance for the assistance provided by Allan from the date of injury to about November 2018, when Ms Walker stopped active treatment.

Submissions

1. Top Hut submitted that Ms Walker had only established a need for two hours of past domestic assistance per week and therefore did not meet the threshold in s 15(3) of the Civil Liability Act of 6 hours per week for 6 months.
2. This submission relied upon extracts from the report of Dr Economos of 15 October 2018, where he referred to a history obtained from Ms Walker in which she said she was provided with cleaners until two months before her assessment (two cleaners attending for an hour every three weeks), and that she now does all housework herself, except for mowing and whipper-snippering the lawn which is done by a friend. The submission also relied on Dr Economos' opinion that Ms Walker's right wrist condition would not restrict her from day-to-day activities, including personal care, housework, mowing lawns or lighter aspects of gardening, but would restrict her from prolonged digging or similar forceful gardening activities.

Consideration

1. The procedural difficulty with this submission is that there is no ground of appeal challenging the award of damages for past domestic care and, although this point was taken by Ms Walker, both in written submissions and oral argument, no application was made by Top Hut to amend the notice of appeal. The submission could be rejected on this basis alone.
2. Aside from the absence of a ground of appeal, there are several difficulties with the challenge to the award of past domestic assistance.
3. First, the submission that the threshold in s 15(3) of the Civil Liability Act was not met relied upon the absence of direct evidence from Ms Walker's son, Travis, as to the assistance provided by him. The absence of such evidence goes to the weight that could be given to Ms Walker's estimates of the time involved in assistance given by Travis. Even in the absence of such evidence, it was well-open to the judge to accept Ms Walker's evidence of her needs and her estimates of the amount of time involved, which was supported by the unchallenged expert report of Ms Laverack, an occupational therapist.
4. Second, it was not put to Ms Walker in cross-examination that the history recorded in Dr Economos' report concerning her need for domestic assistance with housework was inconsistent with the evidence she gave on that topic at trial.
5. Third, Top Hut's submissions did not attempt to explain how it arrived at an assessment of no more than 2 hours per week as the "reasonable need for the services to be provided": s 15(3).
6. Fourth, Dr Economos did not purport to give evidence calculating or assessing the number of hours required for particular items of domestic assistance. In any case, such evidence would have been of little, if any, weight because a medical practitioner is not qualified to give an opinion as to the amount of hours a plaintiff would require or not require in relation to care: Sampco Pty Ltd v Wurth [2015] NSWCA 117 at [83] (Basten JA). To the extent that Top Hut relies upon Dr Economos' opinion concerning Ms Walker's right wrist injury as assisting the determination of the "reasonable need for the services to be provided", that opinion was inconclusive; Dr Economos acknowledged that he had "found insufficient examination findings … to confidently identify a somatic source for the persistent pain" in the right wrist and he recommended a repeat MRI be done.

Future commercial care

1. The primary judge assessed a total amount of $294,742 for future commercial care based on 8.5 hours per week at $43.50 per hour for 796.6 weeks. His Honour discounted this amount by 15 per cent by way of vicissitudes to $250,531 against the possibility that other events will intervene, in particular, on the basis that Ms Walker's PTSD may contribute to her need for assistance in the future.
2. His Honour accepted as entirely reasonable Ms Laverack's evidence of 8.5 hours per week for commercial care in the future. However, in the absence of specific medical evidence setting out the reasons why Ms Walker's "condition" will likely deteriorate, the judge rejected Ms Laverack's opinion that care will increase to 13 hours per week after Ms Walker turns 65 years of age: at [117]-[118].
3. His Honour's reasons for this conclusion as to future commercial care are set out at [116]: The plaintiff gave evidence that she would avail herself of commercial assistance, in particular because her son Travis, who has been providing her with the great majority of the gratuitous assistance, is a single father of a young daughter. I accept that the plaintiff would like to relieve Travis of his duties. Mr Sleight submitted that the plaintiff required 2 hours per week of commercial assistance, but no more. He could not say why he settled on this prescription, in spite of Ms Laverack's opinion. As I have said, he did not challenge her expertise or call her for cross-examination. I reject Mr Sleight's submission.

Submissions

1. Top Hut submitted that the appropriate calculation for future commercial care was 2 hours per week, and that there should be a 30 per cent discount, rather than a 15 per cent discount, for vicissitudes.

Consideration

1. The submission that 2 hours per week future commercial care is reasonable has been addressed above when considering the challenge to past domestic care. The judge was entitled to accept Ms Walker's evidence as to her need for assistance, and the evidence of Ms Laverack, which was not challenged.
2. Top Hut baldly contended that a discount for vicissitudes of 15 per cent was outside the range to be applied, but did not attempt to identify how the judge's assessment miscarried, other than by referring to other cases where a discount greater than 15 per cent was applied, and making the bare assertion that the judge failed to have regard to the medical evidence of Dr Jackson and Dr Economos.
3. The cases relied upon by Top Hut are distinguishable. In Metaxoulis v McDonald's Australia Limited [2015] NSWCA 95 at [81], a discount for vicissitudes of 40 per cent was applied in circumstances where the plaintiff's life expectancy was 44.4 years and the plaintiff had significant pre-existing injuries. That is not comparable with the present case.
4. In Avopiling, the plaintiff was aged 56 at the date of judgment and, although he had no previous medical history, a reduction for vicissitudes of 25 per cent was applied in circumstances where it was accepted that the plaintiff may not avail himself of the commercial care at all because the care would be continued to be provided gratuitously by his wife: Avopiling at [153]. No submission to that effect was made below, nor was there a finding to this effect in this case. To the contrary, his Honour found that Ms Walker wanted to relieve her son, Travis, of his duties of providing her care, as he was a single father to a young girl.
5. As to the evidence of Dr Jackson and Dr Economos, no attempt was made by Top Hut in submissions to identify the specific evidence relied upon as assisting its case for a higher discount for vicissitudes. Dr Jackson's opinion was that Ms Walker's prognosis is poor, and that she now has a chronic pain situation, the treatment of which is very difficult and known to be often most unrewarding. That opinion did not detract from the reasonable need for future care.
6. Dr Economos' inconclusive opinion concerning Ms Walker's right wrist injury has already been referred to above. His opinion concerning the lower back injury was also inconclusive. After stating that he had insufficient evidence to attribute the injury to the fall, Dr Economos said that he was not able to fully address the extent to which Ms Walker could engage in home duties until he was provided with further clinical records, other than noting that she was in receipt of a disability support pension at the time of commencing work with Shear Away.
7. To the extent that it is relied upon on appeal, the medical evidence referred to by Top Hut to contend for a discount of 30 per cent for vicissitudes is not compelling. No error has been demonstrated in the judge's evaluative decision to apply a discount of 15 per cent. Top Hut's challenge to the award of future commercial care should be rejected.

Costs and Orders

1. The appeal has failed. There is no reason why costs should not follow the event: Uniform Civil Procedure Rules 2005 (NSW), r 42.1.
2. I propose the following orders: 1. Appeal dismissed. 2. Appellant to pay the respondents' costs.
3. PRESTON CJ of LEC: I agree with Gleeson JA.
4. STEVENSON J: I agree with Gleeson JA.

Amendments 08 December 2021 - Amendment made to the name of junior counsel for the first respondent. 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: 08 December 2021