WB Jones Staircase & Handrail Pty Ltd v Richardson & Ors

The total was reduced to $750,000 having regard to the jurisdictional limit of the District Court. 78The only matters challenged by the appellants were the award of non-economic loss, past and future attendant care services and past and future economic loss. 79In relation to non-economic loss, the thrust of the appellants' submissions was that between 2006 and 2009, according to his employment records, the plaintiff had only taken a total of 18 days off work, plus a further 3 weeks following surgery to his back. They submitted that the plaintiff had continued to perform his normal job until he lost it in 2009 for reasons unrelated to his injury. They submitted that the medical expenses incurred by the plaintiff were modest and that he did not seem to have received any medical treatment since 2008. Most particularly, the appellants invited an adverse inference because there was only one report from the plaintiff's treating surgeon and it pre-dated the surgery. That report said nothing about the accident. The appellants were critical of the fact that there were no up-to-date reports from the plaintiff's general practitioner. The primary judge inferred from the absence of reports from the treating surgeon that those reports would not have assisted the plaintiff. 80The difficulty for the appellants in challenging the award of damages for non-economic loss is that all of the medical evidence before the primary judge, including that tendered by them, favoured the plaintiff. He had consistently complained of low back pain from the time of the accident. This was confirmed, not only by the plaintiff's own testimony, but by that of his wife and daughter and by one of his employers, Mr Nasser. 81Mr Nasser's evidence was that before the accident, the plaintiff was employed as a logistics manager by Innovative Precasters Pty Ltd (Innovative). That job involved physical work comprising driving trucks and loaders backwards and forwards between sites. He said that given the plaintiff's position in the company, he could take time off when he needed to attend doctors. 82Mr Nasser described the plaintiff's work following the accident as follows: "We were all aware that Pete had a bad back. He wasn't doing his tasks like he used to when he was employed. He couldn't do his tasks. It's as simple as that. He was just clerical then." (Black 269N) "He just wasn't doing what he - Peter just wasn't physical anymore. He couldn't lift props. That's all I can sort of say. He wasn't physical like he used to be, jumping up and down and doing - . (Black 269W) 83By June 2007 the plaintiff had developed left leg pain. He underwent an L3/L4 left sided discectomy in February 2008. Despite the operation, his back pain continued. 84The Court had before it a series of reports of Dr Max Ellis, who is an orthopaedic surgeon. In a report dated 10 February 2010 Dr Ellis took a history that the plaintiff was then working about 30 hours a week in casual light work in educational training and the assessment of trainees involved in industrial work, forklift competency and transport warehousing. The plaintiff was complaining of low back pain, aggravated by bending, lifting, prolonged standing, sitting and walking for more than 15 minutes. Pain extended into the back of the left leg and into the foot. The assessment of Dr Ellis at that time was as follows: "He is now permanently unfit for physically demanding work requiring bending and lifting and is fit only for light duty work. If he attempts to return to physically demanding work in the future, recurrence and exacerbation of his condition can be expected with increasing impairment. He was retrenched from his job as a logistics manager as he was unable to do site work because of his back injury and works currently part time self-employed in educational training and assessment of workers involved in transport and warehousing." 85Dr Ellis estimated that he required 4 hours of domestic assistance twice per week and that that requirement would continue. 86The most recent report from Dr Ellis was dated 7 July 2011. The findings on examination were the same. Dr Ellis said: "His lifestyle is degraded with loss of recreation activities. His working ability and potential are significantly reduced." 87There was also before the court a report dated 7 February 2011 from Dr Machart, an orthopaedic surgeon qualified by the solicitors for WB Jones. Dr Machart diagnosed an injury to the lower lumbar discs, including a disc protrusion at L3/4. He set out his conclusion as follows: "He is not fit for physically demanding work. He should be given work options where frequent changes of position are allowed, to cope with inability to sit for more than 2 hours. It is reasonable for him to work in reduced capacity, perhaps 6 hours a day, essentially office or supervisory type work. He should avoid bending or lifting. ... Essentially sedentary work with the opportunity to walk around at intervals." 88Dr Machart assessed the plaintiff as not being able to do any domestic work at that time and estimated that he required assistance with domestic duties at the rate of about 6 hours per week. 89Dr Stephenson, an orthopaedic surgeon, was qualified on behalf of the solicitors for Mirvac. He provided a report dated 1 March 2010. He commented that the history and findings were consistent with the need for discectomy at the L3/4 level for a lateral disc protrusion on the left side. He thought the symptoms of lumbar pain, left lower limb discomfort and reduced ability and agility from the physical point of view were a reasonable response to the back injury and operation. He thought that in the future the plaintiff would have to use care and avoid heavy lifting and excessive bending and twisting activities because of his lumbar spine condition. 90In relation to prognosis Dr Stephenson said: "The prognosis remains guarded. It is likely there will be continuance of some discomfort in the back and the left leg region. Due care will be required and avoidance of future heavy and physical activity. This could impact on his future employment choice. It is reasonable that he avoid heavier physical activity as future employment. I accept that Mr Richardson was likely to have required some assistance about the house and home, probably for at least 3 months post injury and then again post surgery, for example, for yard garden care and the associated activities of daily living in that respect." (Blue 524D-H) 91Dr Stening, a consultant neuro-surgeon, provided a report for the solicitors for Mirvac, dated 23 August 2010. He diagnosed the plaintiff as having sustained a disc derangement at the L3/4 level producing a bulge into the intervertebral foramen causing irritation of the left L3 nerve root. He noted that following the operation his radiculopathy improved but he was left with some low level back pain. 92His prognosis for the future was: "I would regard him as having reached maximal medical improvement. I would regard him as fit for his former duties which did not appear to involve heavy physical exertion and which were mainly office and supervisory work. I would regard him as unfit for heavy physical exertion in the future and he would be unfit for any work involving such exertion or repeated bending. This low level of impairment, however, is permanent." (Blue 526O-Q) 93The plaintiff's daughter, Kayla, was aged 18. She gave evidence that following the accident her mother had to do "yard work outside. Like mowing. Garden - general gardening. Inside everything." (Black 295K) 94The plaintiff's wife gave evidence. She said that because of financial need, she had returned to work after the plaintiff was injured and had been working fulltime for about 3 ½ years. She had not been working before the accident. 95When describing what the plaintiff had done around the house before the accident she said: "He would put in a lot of work at home. He was great. ... He mowed the lawn, he would whipper-snip, he would sweep down all the cement paths. He would wash the bins, bring the bins in, take them out and always clean them every week, roll up the side ... Yes, many things inside. He would always vacuum the house. We had a two-storey house. So he would do upstairs or if the case, he would vacuum the whole carpet area and I would mop, he would do the bathrooms, vacuum the bathrooms." (Black 303F-L) 96She said that following the accident, he found that vacuuming was stressful and he stopped doing it. He found it difficult to bend down and load the dishwasher. She said that she had to do the work around the house that he used to do. Sometimes when his back was particularly sore, she used to tie up his shoelaces, but she did not do it every day. (Black 307J) Her estimate was that she spent about an hour and a half per day doing work that before the accident the plaintiff used to do. 97The evidence of the plaintiff, which his Honour accepted, was more detailed but was substantially corroborated by the evidence of Mr Nasser, his wife and his daughter. 98Accordingly, there was ample evidence before his Honour, both in relation to pain and suffering, interference with his enjoyment of life, limitations on what he could around the home and restrictions in his work ability to justify the finding of non-economic loss of 38 percent of a most extreme case. This is particularly so when an assessment of this kind is based very much on matters of opinion, impression and estimation which are not readily susceptible to appellate review (Dell v Dalton (1991) 23 NSWLR 538). It could not be said that the primary judge made "a wholly erroneous estimate of the damage suffered" (Moran v McMahon (1985) 3 NSWLR 700 at 718, 723 per Priestley JA; Kirby P and McHugh JA agreeing). 99I agree with the submissions of the appellants as to the paucity of reports from the treating surgeon and in particular, the absence of any reports concerning the operation and its sequelae. If there had been a genuine medical issue supported by reports from doctors qualified by the appellants, this could have been an important consideration. In the present case as the primary judge appreciated, all of the medical evidence was one way. It supported, in varying degrees, the plaintiff's case. Accordingly, although it is surprising that such reports from the treating surgeon were not served, it does not greatly affect the outcome of the medical issue. Past and Future Economic Loss 100The appellants submitted that the primary judge's award of past economic loss was not supported by the evidence and that in relation to future economic loss he had not complied with the requirements of s13 CLA. That section relevantly 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." 101There is some force in these submissions. The primary judge's treatment of economic loss was sparse. In relation to past economic loss, it assumed a knowledge of the competing submissions of the parties. Had his Honour approached the assessment of future economic loss by reference to s13, it is unlikely there would have been any basis for the complaint now made by the appellants. 102What his Honour said in this case was: "87 I turn now to loss of earning capacity up to the present time. In MFI 27, Mr Gilbert argues for an allowance of about $101,000 based on the calculations referred to in item 4 of MFI 27. Mr Catsanos on the other hand argues that an amount of $28,000 would be appropriate. This figure is not open to precise calculation, but because I am estimating a loss in earning capacity and there are various contingencies which need to be taken into account, I would regard an appropriate figure to represent Mr Richardson's loss in earning capacity up to the present time as being $70,000." (Red 150V-151F) 103The plaintiff's submissions, to which the primary judge referred, are set out at Blue 896. They proceeded on this basis: at the time when the plaintiff's ceased employment with Innovative in March 2009, he was earning $1,167 net per week. Thereafter, he variously earned $741 net, $525 net and $522 net until 2011. These figures were based on his post-accident tax returns. The plaintiff's calculations of past economic loss were calculated on the difference between what he would have earned had he remained with Innovative as a logistics manager up to the date of trial and what he had actually earned. On that approach, the average difference per week was $645 net, amounting to the figure of $101,000 claimed on the plaintiff's behalf. 104In order to understand the approach of the appellants, it is necessary to have regard to the findings which his Honour made at Red 147U-148V as to the plaintiff's post-accident work. His Honour found that the plaintiff's employment with Innovative came to an end for reasons not related to his injury. He found that the plaintiff had refused an offer of re-employment by Innovative for reasons unrelated to his injury but which "had more to do with tension within the ownership of the employer" (Red 148K). Nevertheless, his Honour accepted the evidence of Mr Nasser that after the accident, the plaintiff's physical capacity was reduced so that his loss of employment became "a contingency unrelated to his injuries which threw him onto the open labour market where his reduced earning capacity impinged on his income". (Red 148P) 105It was common ground that following the cessation of his employment at Innovative, he undertook work as a contractor, training people to operate different types of equipment and machinery. It was not clear for how long he had carried out this work but it seems that he did so for about 11 months. Thereafter, he started his own business and continued training people to operate machines at the time of trial. The business was known as "Australian Based Training" (ABT). He said that he was working 30 hours per week - "it might jump up a bit, it might go down a bit" (Black 51.35). 106The appellants submitted that it was the plaintiff's own choice not to be re-employed by Innovative and that any loss he suffered was due to that choice. The appellants noted that within a week or two of ceasing employment with Innovative, the plaintiff had commenced work with All Business Learning and Solutions (ABLES) as a contractor and worked with that company between March 2009 and February 2010. During this period, he was receiving gross payments which were more than he had earned with Innovative. In the 2010 tax year he was paid $40,310 by ABLES. 107It seems that in February 2010 a Federal Government subsidy to ABLES ceased and it was then that the plaintiff commenced operating his own company, which was doing the same work as ABLES but without the government subsidy. At Blue 858 the taxable income of the company for the financial years ending 2010 and 2011 is set out. There were no tax returns for the 2012 financial year. 108The appellants submitted that as of the date of trial, the plaintiff's business was flourishing. His participation showed a considerable work capacity. He was training on a face to face basis, the company had invested in a forklift and he was assessing people for competency in driving forklifts. He had taken on a partner. Not long before the trial, the company had moved to new premises at Smithfield and had commenced to engage contractors to assist in the business. The appellants submitted that an allowance of $70,000 for the past was excessive. 109There were clearly a number of issues which his Honour should have resolved in relation to past economic loss. It would, however, involve a significant waste of legal costs for this matter to be referred to the District Court on the issue of damages which could only occur if this Court were satisfied that there were some substantial wrong or miscarriage of justice: UCPR r 51.53. Such was not suggested by any of the parties on the appeal. Accordingly, on this issue, this Court with the assistance of his Honour's findings as to credit, is in a position to assess damages. 110The fact that the plaintiff did not get on with Mr D'Olivera, the director who had taken over Innovative, and therefore declined the offer of re-employment does not particularly assist the appellants' case on economic loss if it be the fact that following the accident, the plaintiff was only capable of restricted duties and had been maintained in employment by a sympathetic employer. The evidence of another director, Mr Nasser, is overwhelmingly to that effect. Mr Nasser explained that the plaintiff was the logistic manager and his work was to be contrasted with that of the construction manager. While there was some physical work, his work was mainly clerical. According to Mr Nasser, after his injury he could not do any of the physical work which he did before he was injured, and the company made allowances for that. 111The factual scenario is similar to that which was considered by the High Court in Medlin v The State Government Insurance Commission [1995] HCA 5; 182 CLR 1. There a 56 year old university professor was injured in a motor accident. Although he could have remained in employment, he took retirement 4 ½ years before he would have been obliged to retire because he did not think he could discharge his teaching and research duties to a sufficiently high level to satisfy himself (as opposed to his employer). The plurality (Deane, Dawson, Toohey and Gaudron JJ) restated the principles in Graham v Baker [1961] HCA 48; 106 CLR 340 at 347 that the two requirements for the recovery of damages for loss of earning capacity were that a plaintiff's earning capacity was in fact diminished and that the diminution of earning capacity was or might be productive of financial loss. 112By reference to the particular case before them, the plurality at p11 posed the relevant question as follows: "... In these circumstances, the relevant question was not whether the plaintiff "should" have continued in his University post or whether his decision to retire was not "reasonable" but whether, in the context of what was reasonable between the plaintiff and the defendant in determining the defendant's liability in damages, the premature termination of the plaintiff's employment was the product of the plaintiff's loss of earning capacity notwithstanding that it was brought about by his own decision to accept voluntary retirement." The plurality answered that question in the affirmative. 113In the same case McHugh J reached the same conclusion by a slightly different method. His Honour posed the question at p17: "9 ... Whether there had been an impairment of the plaintiff's earning capacity was a matter conceptually distinct from the plaintiff's reasons for retiring. The correct question was whether, as a result of the accident, the plaintiff had been rendered less capable of earning income." 114While it is true that for a period of approximately 11 months, the plaintiff received substantial payments from ABELS (Blue 603), his individual tax returns show a much more modest income. It was never suggested to the plaintiff in cross-examination that his tax returns were anything but accurate. Accordingly, I have concluded that the difference must be accounted for by costs incurred by the plaintiff in earning that income. That is an obvious difference between working for one's self and working for an employer where overheads are borne by the employer. 115From the tax returns it is apparent that the plaintiff was suffering an actual and substantial net loss after the cessation of his employment. His Honour's approach of discounting the claim for $101,000 (which was based on tax returns) to $70,000 made appropriate allowance for the fact that what the plaintiff earned in his own company may not have fully reflected his actual earning capacity, had he worked for someone else as an employee. On the other hand, the plaintiff by setting up his own company and working for himself in circumstances where he was significantly disadvantaged on the open labour market because of his physical injuries, showed considerable enterprise which benefited the appellants. If anything, the deduction of $31,000 from the plaintiff's claimed amount was favourable to the appellants. 116His Honour made no attempt to comply with s13 CLA when giving his reasons for his finding of future economic loss. In that regard, his Honour was in error. As with past economic loss, however, this Court is able to make that assessment for itself. 117In relation to future economic loss, his Honour said: "88 Mr Gilbert has calculated the loss of earning capacity for the future for his client also in item 4 of MFI 27. He shows that the figures on one view could demonstrate a weekly loss of almost $1300 but in order to reasonably reflect the uncertainty of this figure, he has discounted the claim to some $500 per week. I think that is a reasonable discount to make. He calculates a figure - using the discount of a 5% multiplier referred to in MFI 27 for the period until a proposed retirement age of 67 of $283,220. I would discount that somewhat more, even though there is already discounted the weekly wage loss and an allowance of some 15 percent for contingencies. I would regard an appropriate figure for future economic loss as being $250,000." (Red 151H-P) 118The claim for future economic loss was put forward by the plaintiff at trial on two bases. The first that was based upon evidence from Mr Nasser that he was paying a logistics/construction manager in a medium size business $130,000 per year. This equated to $2,500 gross or $1,820 net per week. The plaintiff submitted that had he not been injured, he had realistic prospects of obtaining a similar job. Since he was earning approximately $522 net per week at the time of trial, he was entitled to the difference, i.e. $1,298 net per week. 119The alternative basis was that, uninjured, he would have obtained employment of a similar kind to that which he had with Innovative. In those circumstances, the loss per week would be approximately $500 net. On the 5% tables and after deducting 15 percent for vicissitudes, this would produce a figure of $283,220. 120The appellants' submissions at trial and on appeal were similar to those in relation to past economic loss. The appellants pointed to the substantial sums of money which the plaintiff had received when working with ABELS as indicative of his real work capacity and stressed that the cessation of his employment was essentially due to his own choice, rather than because of his low back problem. The appellants referred to the steady expansion of his company and submitted that his Honour had erred because he had not made any allowance for a positive vicissitude, i.e. that the earnings of the plaintiff's company would substantially increase in the future. The appellants submitted that implicit in his Honour's findings was the proposition that the plaintiff's earnings from his company would remain the same or similar for the future. The appellants relied upon the lack of substantial medical expenditure by the plaintiff in the recent past as indicative of a modest injury. 121There was insufficient evidence to substantiate the first basis on which the plaintiff claimed damages for future economic loss. It is true that Mr Nasser said that he was currently employing a manager and paying him $130,000 gross per annum. Under cross-examination it became clear that this manager was not only performing logistics work, but was performing construction work. It also became apparent that the enterprise which Mr Nasser was currently conducting was a much larger one than that which Innovative was engaged in when the plaintiff was employed by it. Apart from the fact that Mr Nasser said he was employing such a person, there was no evidence as to the general availability of such jobs in Australia and in particular, in New South Wales. 122I would not regard the employment of this person as an appropriate indicator of what the plaintiff was likely to have been earning in the future had he not been injured. His Honour was correct in not having regard to that evidence. 123The challenge to the alternative basis put forward on behalf of the plaintiff, fails to have regard to two unchallenged issues. The first is that the plaintiff following the accident has been left with a bad back and that all of the medical evidence is to the effect that he can no longer perform heavy duties and should be restricted to light work. The other is that in his company the plaintiff is working approximately 30 hours per week whereas before, he was working in excess of 40 hours per week. Absent other considerations, those factors are clearly productive of financial loss. 124By reference to s13 CLA, it is reasonable to assume that had the plaintiff remained uninjured, he would have obtained work of a similar kind to that he was performing with Innovative. He was an experienced logistics manager who also (uninjured) had a capacity to perform substantial physical work. It was not submitted, either to his Honour or to this Court, that such was not a reasonable career path for the plaintiff uninjured. 125The only issue which was debated in this Court and before his Honour was the value of the work actually performed by the plaintiff in his company. It is true that the company was expanding and that the plaintiff had taken on a partner. It is also clear from the profit and loss statement that the partner was taking 50 percent of the proceeds and that the company had substantial overheads, including amounts paid to contractors. I can see no reason why the actual earnings shown by the plaintiff in his tax returns are not an accurate reflection of his capacity. This takes into account his reduced physical capacity and reduced hours of work. For the purposes of s13 that is a reasonable assumption. 126As was clear from the calculation of past economic loss, a comparison of the plaintiff's tax returns while he was working with Innovative, with those after he left, shows a loss of approximately $645 net per week. I see no reason why, in general terms, that should not reflect the plaintiff's continuing economic loss for the future. 127The criticism that no allowance has been made for positive vicissitudes, i.e. that the earnings of the company would increase, fails to take into account that had the plaintiff been able to continue working as a logistics manager, his earnings would also have increased. There is nothing to suggest that the ratio between the earnings of the company and those of a logistics manager in the future would have reduced. In fact, the figure of $500 net per week used by his Honour for the future is less than the actual difference in earnings for the past (i.e. $645 net per week) and was further reduced by $33,000. 128It follows that the figure of $250,000 for future economic loss was open on the evidence and should not be interfered with. Domestic Assistance 129There was no issue that s15 CLA applied to this head of damage. Section 15 CLA requires that four tests be met: (i) There was a reasonable need for the services to be provided. (ii) The need has arisen solely because of the injury. (iii) The services would not have been provided to the plaintiff but for the injury. (iv) The services are provided or to be provided for at least 6 hours per week and for a period of at least 6 consecutive months. 130The appellants submitted that the primary judge did not carry out the necessary analysis required by s15 CLA but merely took the figure which Dr Ellis had given in his reports and made calculations based on that. The appellants submitted that the primary judge did not identify the particular tasks which would have required 8 hours of assistance. 131The appellants submitted that the fact of the plaintiff working as a trainer operating forklifts and cranes in his own business, meant that he could do most of the activities around the home, such as vacuuming, cooking and hanging washing on the line. The appellants submitted that it was not sufficient to merely rely upon the plaintiff's own estimate, or that of a doctor but that a detailed analysis had to be undertaken by the Court when identifying the nature of the assistance that was required and the hours necessary to provide that assistance. 132The appellants' submissions do not do justice to his Honour's approach. Although his Honour dealt only briefly with attendant care services (Red 150J-T), that assessment was based on findings earlier in the judgment as to incapacity. There his Honour found that the plaintiff continued to experience symptoms which would remain into the indefinite future. Following the accident, the plaintiff was unable to engage in the recreational activities which his Honour enumerated, i.e. golf, water sports, riding, walking, body surfing and canoeing. His participation was prevented by pain. His Honour referred to the evidence of the plaintiff's wife to the effect that on an occasion after the accident, they went camping but the plaintiff was unable to erect a tent. 133In relation to attendant care services specifically, his Honour said: "72 Mr Richardson also gave evidence about the activities which he used to engage in around the house. The jobs which fell to him were maintaining the yard on the outside and putting the bins out. In the house he would put out washing and cook every so often. His job was to vacuum which involved all the wet areas upstairs and downstairs, meaning the bathroom and the laundry. Outside the house he maintained the garden and the lawns, used the whipper snipper and undertook general maintenance of the property. That would include painting and the gardens and initially establishing the gardens. 73 Before the accident Mrs Richardson said that the housework was divided up amongst the family. She said that they as a family "all very equal". She said that Mr Richardson "would put in a lot of work at home. He was great". She said that he "mowed the lawn, he would whipper-snip, he would sweep down all the cement paths. He would wash the bins, bring the bins in, take them out and always clean them every week, roll up the side. Then inside, the dog - he used to help - we used to walk our dog... He would always vacuum the house. We had a two-storey house. So he would do upstairs, or if the case, he would vacuum the whole carpet area and I would mop, he would do the bathrooms, vacuum the bathrooms." Kayla Richardson said that before the accident her father definitely did his share around the house. 74 This changed after the accident. Kayla Richardson said that they had to pick up a lot on his behalf and the person who was primarily responsible for picking up those tasks was her mother. She said that she picked up jobs such as, yard work outside and making the bed in the morning and doing the dishwasher. She said that she had picked up more now that her father could not. She would not be mowing lawns which she or her sister might do them now. Mrs Richardson noticed that there were restrictions on her husband doing the housework after the accident, even pulling the cord on the mower would hurt him, vacuuming was stressful and he does not do it any more. He does not bend down to work the dishwasher, although occasionally he might help with the wiping up. He did not go back to the work he used to do around the house. Her daughter helped her but it is mainly Mrs Richardson who takes up the work which Mr Richardson is not able to do. She even has to tie up his shoelaces now and then." (Red 145M - 146T) 134His Honour accepted this evidence which he did not regard as having been seriously challenged in cross-examination (Red 146V). 135That evidence provided a sound basis for his Honour to consider how many hours he should assess in relation to attendant care services. The plaintiff's estimate was 10 hours per week. That of his wife was 10 ½ hours per week. The estimate of Dr Ellis was 8 hours per week and that of Dr Machart was 6 hours per week. It was well open to his Honour on the basis of the evidence to take 8 hours per week as an appropriate figure for gratuitous attendant care services. Conclusion 136While his Honour's treatment of economic loss was not adequate in that insufficient reasons were provided and there was a failure to comply with s13 CLA, an examination of the evidence supports the conclusions which his Honour arrived at. In relation to damages as a whole, the findings made by his Honour were supported by the evidence and were open to him. The appeals against damages should be dismissed. Costs 137The plaintiff has succeeded fully in the appeal and should have his costs of the appeal. Since there has been a change in the apportionment of liability, there is a need to amend the orders made by the primary judge. The appellants will be given the opportunity to make submissions as to the costs of the appeal. 138The orders which I propose are as follows: (1) Appeals by Mirvac in matter No 2012/246067 and WB Jones in matter No 2012/245212 allowed in part. (2) The orders made by Judge Cogswell SC on 11 July 2012 are set aside, and in lieu thereof order that: (i) Judgment in favour of the plaintiff against all three defendants in the amount of $750,000 plus costs. (ii) In the cross-claim by Mirvac against WB Jones, WB Jones is to contribute 25 percent to Mirvac's liability to the plaintiff for damages and costs. (iii) In the cross-claim by Mirvac against JMKG, JMKG is to contribute 50 percent to Mirvac's liability to the plaintiff for damages and costs. (iv) In the cross-claim by WB Jones against Mirvac, Mirvac is to contribute 25 percent to the liability of WB Jones to the plaintiff for damages and costs. (v) In the cross-claim by WB Jones against JMKG, JMKG is to contribute 50 percent to the liability of WB Jones to the plaintiff for damages and costs. (vi) In the cross-claim by JMKG against Mirvac, Mirvac is to contribute 25 percent to the liability of JMKG to the plaintiff for damages and costs. (vii) In the cross-claim by JMKG against WB Jones, WB Jones is to contribute 25 percent to the liability of JMKG to the plaintiff for damages and costs. (viii) Each cross-defendant is to bear its own costs in respect of each of the cross-claims. (3) Otherwise dismiss the appeals by Mirvac and WB Jones. (4) Dismiss the appeal by JMKG in matter No 2013/11679. (5) The appellants are to pay the respondent Mr Richardson's costs of the three appeals. (6) The appellants are to file any agreed Short Minutes of Order as to costs within 7 days. In default of agreement, the appellants are to file and serve proposed orders and short submissions not exceeding 5 pages and any evidence upon which they wish to rely within 21 days. 139LEEMING JA: I agree with the orders proposed by Hoeben JA and his Honour's reasons for them.

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