Wellington Shire Council v Steedman [2003] VSCA 115

10. The appellant complains that the trial judge was in error in his determination that the respondent had proved negligence. The appellant appeals also as to the quantum of the damages award and as to each of its component parts, and complains, further and in the alternative, that if the judge was correct in his finding of negligence then he should have found that the respondent was guilty of contributory negligence. A cross-appeal was abandoned.

13. At the time of the accident on 18 April 1996 the respondent was a 37 year old married woman who was then pregnant and had a five year old son. On that day the respondent had driven from her home in Bairnsdale to the Port of Sale Civic Centre on the Princes Highway at Sale accompanied by her son. She arrived at the premises at or about 10.30 am and was due to attend a hearing of the Social Security Appeals Tribunal. The respondent had not previously attended these premises and

was unfamiliar with them. She followed signs directing her to a car-park at the rear of the building and parked in an open car-park area and then walked towards the Port of Sale Civic Centre. There were two adjacent buildings which comprised the Centre and the respondent initially went to the wrong building but was then redirected to the correct building. At the base of the building was an undercover car-park. The respondent was holding her son by the hand and carrying papers, a handbag, a coat and some books. The person who redirected her to the correct building had told her that there were lifts in that building and when she entered the underground car-park she was looking for the lifts. There were no signs indicating where the lifts were nor any signs directing her in any way. It had been raining but the rain had stopped, the sun was shining and it was "glary" in the open air. The respondent walked from the outdoor glare into the darkened undercover area comprising the ground floor car-park. She walked a distance of between eight and 10 metres after entering the car-park then tripped and fell to the ground. She had in fact fallen over a speed hump which was eight metres in length, 500 millimetres wide and 90 millimetres in height. It was painted with yellow diagonal stripes 150 millimetres wide and 150 millimetres apart. There were no signs warning of the presence of the speed hump.

17. After falling to the ground and grazing her hands and knee, the respondent's back was hurting. Upon getting up she saw the speed hump for the first time. In her evidence the respondent said she did not see the speed hump before she fell nor did she see the yellow lines painted on the speed hump. It was common ground that it was darker underneath the building, despite artificial lighting, than it was outside but the significance to be attached to that fact was in issue.

21. Counsel for the appellant did not challenge the proposition that the appellant owed the respondent a duty of care. The complaint made was that it was not open to the judge to have found that there had been a breach of the duty of care. In holding otherwise, so it was submitted, his Honour made findings of fact which were not open on the evidence or were contrary to the evidence. It was submitted that his Honour made a number of critical findings of fact that betrayed such errors in his approach. The first such area which was identified related to the question whether the respondent had seen the hump before she fell.

24. His Honour found that the respondent did not see the speed hump before she fell, and had not therefore altered her gait. In a section of his judgment titled "Why did she not see the Speed Hump?" his Honour made a thorough analysis of the evidence and stated his findings. He found that the respondent was uncertain where to find the lift and most likely was looking ahead to find out where she had to go. No complaint is made about that finding, which accords with the respondent's evidence.

27. In language which was a little awkward, but the meaning of which was clear, his Honour found that "the lighting inside the car-park area was darker than the outside and that at the time when she fell her eyes would not have adjusted to the lighting difference". That latter finding is disputed, it being said that the respondent's evidence that she was looking for the lift was inconsistent with the finding. It is unnecessary to rehearse the evidence in detail but in my view there was evidence to support that finding, although the respondent did not say, in terms, that her eyes were adjusting to the change in light at the moment of the fall. The consulting engineer, Mr Dohrmann gave evidence of such an effect on a person's eyesight when moving from the open area outside the car-park into the covered area of the car-park and the respondent's evidence was that it had been glary outside and was dark when she went inside the car-park and was looking for the lifts. She said in cross examination that it was hard to see when she entered the car-park. The fall would have occurred only a matter of seconds after the respondent entered the car-park.

"The diagonal yellow stripes painted on the speed hump could be expected to resemble a pedestrian crossing rather than a speed hump. The manner in which the hump was painted could create the optical illusion that the surface was flat, rather than raised, to a person unfamiliar with the location entering from where the Plaintiff did. There are therefore a number of factors that explain why it was that the Plaintiff might not have seen the speed hump and fallen on it. The Plaintiff said that she did not see the yellow lines of the speed hump before she fell. I believe that this might not in fact be so. I am of the opinion that having seen the photographs in evidence and having had a view of the scene for the purpose of better understanding the evidence, that it is likely that a person entering as the Plaintiff did, may well have seen the yellow lines without actually consciously recording that fact. (At the time of the view the speed hump had been removed.) I am of the view that it is probable that as she approached where she fell, the Plaintiff would have formed the impression that the surface upon which she was walking and onto which she walked when she fell was in fact a flat surface. Ordinarily as one walks a large number of things are actually seen that affect the way in which one walks, without them necessarily being understood to be the basis of making a conscious decision to change step, or even direction. Accordingly, whether she saw the lines or not, I am of the view that she had not seen the hump itself and that the matters to which I have referred give a reasonable explanation as to why she did not see it. I find that the situation in which the Plaintiff found herself was one that involved a risk to the Plaintiff and constituted a risk to anyone in a like situation that they might fall as a consequence of the presence of the speed hump."

34. Having regard to the respondent's evidence, and his Honour's finding that the respondent did not see the speed hump or its yellow stripes before she fell, counsel for the appellant submitted that his Honour had disregarded his finding and made a contrary finding, namely, that the respondent probably had seen the speed hump but having done so would not have appreciated that it was a raised speed hump rather than a flat surface.

37. In my view, in the passage above, his Honour was not disregarding his finding (which he repeated in several places in his judgment) or the respondent's evidence but was merely canvassing the alternative explanations for the respondent's fall. Either the respondent had seen the hump or she had not. If she had seen the stripes then it was apparent that she did not appreciate that the ground was raised by a hump and presented a tripping hazard. Had she appreciated it the fall would not have occurred. His Honour, as I will later discuss, had the benefit of evidence, including evidence from photographs, that indicated that the stripes when viewed from the direction the respondent entered the car-park could give the impression that they were on a flat surface. His Honour accepted that evidence, and in the next passage of his judgment he made the express finding that "I do however form the view that based on the whole of the evidence, the speed hump was in fact difficult to see or identify as a protrusion above the ground". That finding was supported by evidence of Mr Dohrmann and of photographs taken of the hump, in situ. It gained important support also from the report of the appellant's own infrastructure planner, Mr Breeden (a civil engineer), whose report two years later led to the removal of the speed hump. The fact that his Honour made this finding as to the deceptive appearance of the hump was not inconsistent with the respondent's evidence that she did not see the hump.

40. As was conceded in the appellant's submission, his Honour regarded the respondent as a truthful witness in giving evidence of the fall. Thus, his Honour was considering whether, although she honestly believed she did not see the stripes at all, she might well have done so and yet still proceeded as though no hump was present. As his Honour held, in the above passage, "whether she saw the lines or not I am of the view that she had not seen the hump itself . . . ." His Honour was simply stating that even if the respondent had seen the stripes, the hazard presented by the hump had not, thereby, been brought to her attention. Whether she had or had not seen the stripes the respondent had not been made aware that there was a hump. His Honour's findings led him, then, to the next question, which was whether the appellant could have taken steps which would have ensured that the respondent did have her attention drawn to the fact that there was a hazard, as constituted by the hump. There was no error in the approach of the judge in considering the possibility that the respondent had seen the stripes but had still not noted that there was a hump.

43. The judge next turned attention to the question whether there had been a breach of the duty of care. His Honour quoted the terms of the duty of care which are set out in s.14B(3) of the Wrongs Act 1958 and concluded that there was a foreseeable risk that a visitor entering the car-park as a pedestrian would not see the speed hump. As I have said, it is conceded that a duty of care was owed the respondent. It is not disputed that the judge correctly stated the terms of the duty of care which was owed, and which he recited in terms of the sub-section, as follows, that the occupier must "take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises". The terms of the statutory duty of care are not in conflict with the terms of the common law duty[2].

46. It was submitted that having set out the terms of s.14B(3), which impose a duty to take "reasonable" care, the judge, then conducted his analysis of whether there had been a breach of duty by overlooking the fact that the duty was to take such steps as were reasonable, not merely possible. That was a vital error, it was submitted, because while it was acknowledged that all of the steps which his Honour identified were possible to have taken, and might well have avoided the accident had they been taken, they had not been proved to be reasonable steps to have taken.

49. The contention that his Honour made the fundamental mistake of assessing the question of breach against what steps might possibly, rather than reasonably, have been taken is based on the fact that immediately after quoting the section of the Act (which stated that the issue was "reasonable" care) he posed the question in terms, "Could the [appellant] have taken any steps to see that the plaintiff was not injured by reason of the state of the premises?" and in the following sentences spoke of what steps the appellant "could" have taken. It was significant, so it was submitted, that his Honour failed each time to place the word "reasonable" before the word "steps". It is to be noted, however, that in the next sentence in the very same paragraph about which complaint is made his Honour summarised the discussion by saying: "I am satisfied therefore that there was a failure on the part of the defendant to take reasonable care to see that the plaintiff was not injured by reason of the state of the premises and by failing to take steps to alert the plaintiff to the hazard that confronted her." That was plainly a reference back to the terms of s.14B(3) which commenced his discussion of this question, and which clearly identified the issue as being concerned with steps which might reasonably be taken. Insofar as there is any apparent inconsistency between the terms of the sub-section and the words employed by his Honour when addressing the question of the breach of duty then I would adopt the approach which Handley, J.A. noted to be appropriate in Road Transit Authority of New South Wales v. McGuinness[3], namely, that an appellate court should endeavour to reconcile apparently inconsistent statements in the reasons for judgment of a judicial officer if that is possible, before concluding that they are in fact inconsistent. I do not consider that the passage discloses inconsistency between his Honour's identification of the correct test, on the one hand, and the approach, on the other hand, which he then adopted in determining the issue. Nor do I consider that the passage discloses that an erroneous test was, in fact, applied. In any event, for reasons I will later discuss, the only conclusion that was reasonably open was that most if not all of the steps which he identified were reasonable ones to have taken.

52. I turn then to the steps which his Honour held ought to have been taken and which, in his opinion, constituted breach of duty of care.

55. It is apparent that his Honour considered this question both on the assumption that the respondent saw the stripes, but did not thereby appreciate that they signalled that there was a hazard constituted by the hump, and on the alternative assumption that she did not see either the stripes or the hump, at all. Thus, his Honour held that the speed hump could have been marked differently so as to make its presence obvious, and then also found that there should have been warning signs erected which were directed at pedestrians. It is clear (and counsel for the appellant agreed that his Honour so found) that his Honour not only had in mind signs that directed pedestrians to where the lift was, which he said, "would have allowed for more attention to be paid to the walking surface" but also signs which alerted the pedestrians to the hazard which confronted them. Additionally, his Honour held that the appellant could have provided a pedestrian walkway.

58. Counsel for the appellant contested the proposition that the marking on the hump was inadequate. He submitted that it was not open to conclude that the existing markings failed to adequately indicate to a careful pedestrian that there was a tripping hazard. In his report, Mr Dohrmann said that as one approached the hump from the direction taken by the respondent it was quite difficult to discern that the speed hump had any shape, or that it protruded above ground level. Mr Titshall submitted that that statement was at odds with the witness' oral evidence that when he attended the scene he "very quickly perceived that it was a hump". Mr Dohrmann added, however, that he was looking for a hump when he attended the scene. The observations of Mr Dohrmann as to the illusion created by the hump when approached from one direction (i.e. when moving out of bright light into the darkened car-park), namely, that it was a flat surface, were supported by the photographs he took at the scene. Most significantly, however, Mr Breeden in recommending that the hump be removed, reported that the hump was located well under the building and was subject to poor natural lighting. Mr Breeden noted that that factor and, additionally, the degraded state of the paint work meant it was not unreasonable that pedestrians might not see the hump. Although the report was written some two years after the respondent's injury his Honour was entitled to have regard to the report as bearing upon the situation at the time of the respondent's injury. Mr Breeden attached to his report a VicRoads publication which suggested appropriate marking for a speed hump. His Honour found that the line marking there shown "obviously creates a different visual impact", and indicated a raised object rather than a flat surface.

61. Mr Titshall submitted that there was no evidence that signs would have made any difference had they been erected, but his Honour was entitled to conclude that they would have been effective. As his Honour noted, Mr Peter Daly, a consultant engineer engaged by the appellant, was of the opinion that the speed hump did not constitute a significant hazard to pedestrians. His Honour rejected that conclusion, as he was entitled to do. It is to be noted, however, that in a report, which was tendered, Mr Daly concluded that lighting levels at the location of the hump were lower than recommended by relevant standards and he also reported that "road hump warning signs can be effective in warning pedestrians and vehicles of the presence of humps". The respondent's evidence was that she was entering the premises for the first time. She was looking for lifts, and, thus, it might be inferred, for any signs giving directions to lifts. It is probable, therefore, that she would have seen signs, including a sign warning of a speed hump. It was also open to conclude that had she been directed to a lift by a sign she would have then been free to direct more attention to the road surface.

64. It is apparent that his Honour gave careful thought to the question of what steps might reasonably have been taken. His Honour did not find that the hump ought to have been removed, although there was evidence before him that in the position where it was placed it served no good purpose. Furthermore, the hump was later removed on the advice of Mr Breeden who said in evidence that it was unnecessary for speed reduction purposes and was incorrectly located, in any event. As to the steps which he considered should have been taken, his Honour was entitled to conclude that had they been taken the accident would not have occurred.

67. Once the respondent led evidence of steps which could have been taken and which would have obviated the risk of injury the running onus shifted to the appellant to prove that the steps were not reasonable ones which it ought to have taken.[4] No evidence was led by the appellant, however, that the placing of signs for pedestrians would have imposed upon it any financial or other problems, nor was anything suggested which might otherwise render the installation of signs unreasonable. Likewise, no evidence was led to suggest that repainting the hump, so as to make it more apparent, would have been burdensome for the appellant, or would otherwise have been an unreasonable step to require of it.

70. The reasonableness of requiring the installation of a pedestrian walkway, so that pedestrians did not walk where the humps were placed for purposes of slowing cars, was more debatable. His Honour noted that it was "possible" to have taken that step but "albeit at the expense of some car parking spaces". Once again, no evidence was led by the appellant as to the unreasonableness of that suggestion. However, even if his Honour was wrong in concluding that the creation of a separate pedestrian walkway was a precaution which a reasonable occupier ought to have taken, that was merely an alternative to the installation of signage which his Honour found was an appropriate step to have taken. As Mr Titshall conceded, the respondent need only establish that there was any one step which could have been taken which was both reasonable to have taken and would, on the balance of probabilities, have avoided the accident.

73. Evidence which his Honour was entitled to accept, therefore, disclosed that the hump was a danger not readily to be perceived because of the lighting in the area, as affected by movement from daylight into a darkened area. In the circumstances, and although his Honour did not use the word to describe the situation, it represented a trap to a pedestrian taking reasonable care for her own safety[5]. In my opinion, there was ample evidence to support the judge's conclusion that the appellant was negligent in failing to take reasonable care to avoid the foreseeable risk of injury to pedestrians entering the darkened car-park and tripping on the hump.

77. His Honour held that the appellant had not proved that the respondent was guilty of contributory negligence. He found that the circumstances in which the hump was located created a risk that a person taking reasonable care for her own safety would think she was walking on a flat surface and would not be alerted that she was about to encounter an obstruction in her path. Given that there were no signs to direct her his Honour found that it was reasonable for the respondent to be looking ahead in order to locate the lifts. Once it was concluded that the appellant had failed to take reasonable steps to warn the respondent of a trap which existed by virtue of the lighting conditions, the placement of the hump and the absence of warning signs, the contention that the respondent had failed to keep a proper lookout becomes difficult to sustain.

80. The appellant carried the onus of proof as to contributory negligence[6]. The question whether contributory negligence has been proved is a question of fact[7] and an appeal court must exercise restraint in disturbing such a finding, having regard to the fact that issues of credibility would be relevant to the decision of the trial judge[8], as, indeed, was the case here. Additionally, his Honour had the advantage of a view of the scene, although by the time of trial the hump had been removed.

83. The respondent was entering a building she had not previously visited, she was not rushing, and she was holding the hand of her small child (and many of the visitors to that building would be accompanied by children); she was looking ahead of her to find her way to lifts (which were not identified by any signs) and she had to be alert for motor cars. In those circumstances the respondent's tripping on a hump which was not adequately signposted or painted and which might appear to be a flat surface is more likely the result, at worst, of mere inadvertence, inattention or misjudgment in circumstances where that did not reflect a failure on her part to keep a proper lookout[9].

86. The respondent's account has not been shown to be wrong and the finding that the fall was not due, in part, to the respondent's negligence should not, therefore, be disturbed.[10]

90. The appellant contends that the award of $50,000 for general damages was manifestly excessive, having regard to the fact that the respondent was already severely disabled by a pre-existing back injury which caused her such severe pain before this accident that she was consuming very large quantities of prescribed narcotic drugs, up to 15 Panadeine Forte tablets daily and 120mg of morphine. In an attendance on her general practitioner only two weeks before this accident she had reported that her back was "worse than ever". Thus, it was submitted, this injury had little additional impact on her pre-existing pain and suffering. Furthermore, it was submitted, she was able to continue with her pre-accident activities, and the actual loss and enjoyment of life produced by this accident was, therefore, overvalued by the award of damages.

93. The making of an assessment of damages by a judge involves the exercise of a discretionary judgment and an appellate court should not interfere with a judge's assessment of damages unless it is shown that the judge acted on a wrong principle, misapprehended the facts or for these or other reasons has made a wholly erroneous assessment. Before it intervenes the appeal court must be "clearly satisfied" that the discretion miscarried[11].

96. The respondent's claim for damages for pain and suffering and loss of amenities was undoubtedly a difficult one to assess. In 1986 the respondent had been injured, suffering at that time an L4-5 disc prolapse which led to a number of surgical procedures, in particular an L4 to sacrum fusion in 1986, an L4-5 discectomy and fusion in 1988 and a another fusion later. She had a rare three level fusion from L3 to S1. The respondent said that notwithstanding that history, at the time of the present accident she had felt her condition was improving, and she was contemplating seeking part-time work as a teacher's aide, although she had not worked for some 10 years.

99. The judge correctly identified the issue he had to resolve as being "how much of the Respondent's present problems relate to the incident in 1996 and following and to what extent her condition can be causally linked to that event".

102. Mr Titshall accepted that as a result of this accident the respondent was suffering increased pain, and her dosage of drugs had increased with a consequent increase in her level of addiction to drugs. He accepted that those factors justified a modest award (as he called it) of general damages, but not to the level the judge awarded. The respondent retained an ability to enjoy her life, he submitted, and had actually shown a greater ability and keenness to participate in some activities, such as part time teaching work, than she had exhibited before the accident.

105. Dr Urie, the respondent's treating doctor, gave evidence that although the respondent had been suffering continuous pain up to the time of this accident, due to the earlier accident, her mobility had already been improved by her operations and she could have expected that her mobility would, with time, have progressively further improved. Although she was still taking analgesics her symptoms were improving, generally. She was a stoical person, he said, and kept trying to do housework up to the time of this accident and she had been gradually performing more functions prior to this accident. She had been taking 30mg of morphine twice a day as well as Panadeine Forte, but her drug dosage before this accident was a lot less than it was afterwards.

108. As a result of this accident the respondent's morphine dosage had more than doubled and her lifestyle had been extremely limited by the new injury. This accident "made everything much worse", Dr Urie said. That evidence gained strong support from neurosurgeons, Messrs Rossi and Southby, and from psychiatrist Dr M. Epstein. The medical evidence, in those respects, was consistent with the evidence given by the respondent herself, and by her husband, about the significant deterioration in her condition after the second accident. Whereas she had been able to perform housework, climb stairs and walk up a steep incline, do gardening and manage her son, all of those activities had been significantly affected by the injury. She was in much greater and more constant pain, she could not sit, save for short periods, and could not travel by car.

111. The respondent's statement to her doctor two weeks before this accident, that she was worse than ever, was put to Dr Urie in cross-examination, but he maintained his position that her condition had been improving, and he listed a range of activities which she could perform before this accident but not after it.

114. The judge accepted the respondent's evidence as to the change in her condition. He found that she had suffered a significant aggravation of her condition, her level of medication had increased to meet her increased pain and that in turn had increased her dependence on drugs. His Honour concluded that as a result of this accident the respondent would suffer continued pain for the rest of her life, that she was limited in the domestic duties she could perform; she could not engage in sporting activities, was limited in the activities in which she could engage with her son, and her sexual life with her husband was severely affected. All of those findings were open to the judge.

117. In considering the question whether the assessment of general damages was manifestly excessive or betrayed judicial error, it is relevant to note that the range suggested by counsel under this heading was quite narrow. Counsel for the appellant submitted to the judge that an award of $35,000 was appropriate under this heading and counsel for the respondent suggested $50,000.

120. The assessment of damages under this heading is likely to be particularly affected by the trial judge's observation and assessment of the injured respondent, the genuineness of her complaints of pain and the reliability of her evaluation of the impact of the 1996 injury on her life. Due regard should be given to the advantage the trial judge has in making that assessment[12].

123. In my opinion, the fact that the judge assessed damages at the level sought by the respondent's counsel does not demonstrate error. I am not persuaded that any error has been shown in his Honour's approach in assessing damages under this heading, or in the sum he awarded.

127. One ground of appeal asserted that the assessment of $30,000 for pecuniary loss damages was manifestly excessive, and another ground of appeal complained that there was no evidence, at all, to justify the sum awarded.

130. It must be noted that the sum awarded by his Honour was substantially less than the sum which had been sought by the respondent under this heading. Counsel for the respondent had submitted that the respondent would have been able to work as a teacher's aide until the age of 60 years, but for this accident. The respondent's advisers estimated her loss of income at $200 net per week which, when a multiplier to age 60 years was applied, and after allowing for 15% reduction for vicissitudes, produced a claim for $126,480 under this heading.

133. Counsel for the appellant submitted that, on the evidence, there was no basis for concluding that but for this accident the respondent would have been employable at any time in the future. Mr Titshall submitted that as at the time of this accident she was totally disabled, there was no evidence of any job that she could have performed or would have been available to her, she had not worked for 10 years, she was dependent on medication, had a five year old child, and had expressed an interest in having more children. It was submitted that in those circumstances the respondent had suffered, at best, the loss of a chance to earn income in future, that loss being minimal in the circumstances. Instead, so it was submitted, the judge had made an assessment in terms of there having been loss of future earning capacity, that approach being wrong because no earning capacity had been demonstrated and because, on any basis, the sum assessed was manifestly excessive.

136. The judge noted the respondent's evidence that at the time when this injury occurred she had been capable of returning to work and that she had wanted to do so. Although a claim had been made based on a loss of income of $200 net per week from 1 August 1998 until the date of trial - a total claim of $24,000 - his Honour rejected that claim entirely. He held that she had not proved that, but for this accident, she would have worked over that period. As to loss of future earning capacity, his Honour held that as a result of her earlier accident she already had very limited prospect of obtaining paid employment. He held that she had not proved that she had suffered loss of future earning capacity to the extent claimed. His Honour held, however, that the respondent's condition was substantially worse than it had been before this accident and that it was likely that "she would have had some capacity for work in the future , although very limited". His Honour then said that the respondent had established "some loss of future earning capacity". His assessment of $30,000 under this heading was predicated on the fact that had she obtained work it would not have been to age 60, and he concluded that "doing the best that I can I think it is fair to assess damages for loss of earning capacity, taking into account the vicissitudes of life, in the sum of $30,000.

139. Although complaint is made that his Honour should have been assessing the loss of a chance of future earnings rather than loss of earning capacity it does not seem to me to matter which way the damages are characterised. The critical question was whether the respondent had proved on the balance of probabilities that at the time of this accident she had a realistic prospect of future employment and that she had lost that prospect because of the injuries suffered in the accident. If that were established then the question was one of fair and reasonable quantification.

142. There was evidence which supported the contention that at the time of the accident the respondent had some prospect of future earnings. The respondent's evidence was that she had an interest in returning to the work force as a part-time teacher's aide and at the time of the accident was already attending the school where her child was a pupil and was performing voluntary work, by reading to students and assisting in art class. She had not made enquiries about obtaining such part-time work prior to the accident but in the year or so before the hearing she had learned of such work being available. She would have applied for the work but for the fact that she did not believe she could cope, due to her injuries. Teachers at the school had invited her to apply for the job, she said. The fact that such work was available was confirmed by another witness, and a statement was tendered from the principal of the school in which he said "I believed that had Rosemarie applied for the job and was able to perform the work, she would have been an excellent candidate for the job". He said that she would have earned $11.82 per hour for 19 hours per week. Dr Urie gave evidence that it was not a ridiculous proposition that prior to this injury she might have been able to work. He said that her condition was improving with time, and she was becoming much more employable.

145. That evidence was sufficient to justify his Honour's finding that there had been some loss of future earning capacity. That finding must be made on the balance of probabilities, but the assessment of the loss involves taking into account a range of possibilities and considering hypothetical or future events, and evaluating the chances of events occurring[13] . Assessment of such loss was obviously very difficult and the evidence in quantifying that loss was meagre and uncertain. This was a situation where by virtue of those uncertainties the evaluation of loss could only be made on the basis of a loss of a chance. The fact that there is and can be no precise evidence does not mean that a figure of "nil" is appropriate and does not avoid the task for the judge of quantifying the loss[14]. The compensable loss is not the loss of income but rather the loss of the capacity to earn income, in a manner productive of financial loss[15]. A trial judge, faced with such limited evidence, must do his or her best to quantify the loss and the occasions when an appellate court would be moved to overturn an assessment made in such circumstances would be few and far between.[16]

148. The figure arrived at here seems to me to have been quite modest. The respondent was only 37 years of age at the time of her accident, and 41 at the time of trial. I am not persuaded that error has been shown in the manner in which the loss was calculated or in the sum arrived at.

152. The award of $12,000 for future medical expenses was claimed to be manifestly excessive or to be a sum for which there was no evidence, at all, to justify it.

155. The claim for special damages showed that just on $3000 had been claimed for past medical and like expenses for the period from 18 April 1996 to 18 April 2000, which was claimed on the basis that it represented half of the actual expenses incurred (allowance being made for the fact that some of the medical expenses had to be attributed to the effects of the earlier accident). That award for past medical expenses was not challenged on appeal. The claim for future medical and like expenses was based on one visit to a doctor per month, at $21 per visit, and medication of $30 per month, a total of $51 per month, to which a multiplier

appropriate to age in the mid 70's was applied. From that total an allowance of 15% was made for vicissitudes, and the net result was a claim for $12,000. In addition, a claim was made for future surgery of $10,500 for removal of existing pedicles and screws and for a further $40,000 for an implant of a pain reduction stimulator. The judge allowed a total of $12,000, a very modest sum, in my view. The respondent had been seeing her local doctor every month for many years and the cost of future medication seemed well within the range of what was reasonable having regard to her past medication and likely future needs.

159. In my view, the allowance for future medical and like expenses had a quite rational basis and was, if anything, unduly favourable to the appellant. No error has been demonstrated in the award.

162. I conclude that none of the grounds of appeal has been made out and the appeal should be dismissed.

167. I agree, for the reasons stated by Eames, J.A., that the appeal should be dismissed.

[1] Judgment was delivered by another judge as the trial judge had retired.

[2] See s.14B(2); see Brodie v. Singleton Shire Council; Ghantous v. Hawkesbury City Council [2001] HCA 29; (2001) 206 C.L.R. 512, at [161]-[163]; Richmond City Council v. Standing [2002] NSWCA 359, at [29].

[3] [2002] NSWCA 210, at [10].

[4] McLean v. Tedman [1984] HCA 60; (1984) 155 C.L.R. 306, at 314.

[5] See Brodie/Ghantous, at [163] per Gaudron, McHugh and Gummow, JJ. In his report Mr Dohrmann described the respondent having walked into "a situation of hidden risk".

[6] Joslyn v. Berryman [2003] HCA 34, at [18], per McHugh, J.

[7] Liftronic Pty. Ltd. v. Unver (2001) 75 ALJR 867, at 885, per Kirby, J.; Joslyn v. Berryman, at [158], per Hayne, J.

[8] Podrebersek v. Australian Iron and Steel Pty. Ltd. [1985] HCA 34; (1985) 59 ALJR 492, at 493-494; O'Neill v. Chisholm (1973) 47 ALJR 1, at 3, 4, 6.

[10] See Altman v. Dunning [1995] VicRp 41; [1995] 2 V.R. 1 at 22-23; I have had regard, also, to the observations in Fox v. Percy [2003] HCA 22 at [27]- [29]; [71], [90].

[11] CSR Readymix (Australia) Pty. Ltd. v. Payne [1998] 2 V.R. 505, at 508, per Winneke, P. with whom Hayne and Batt, JJ.A agreed.

[13] See Malec v. J.C. Hutton Pty. Ltd. [1990] HCA 20; (1990) 169 C.L.R. 638, at 643, per Deane, Gaudron and McHugh JJ.

[14] Caddajin Pty. Ltd. v. Tasevski [2003] VSCA 19, at [27] per Winneke, P.

[15] State of New South Wales v. Moss [2000] NSWCA 133; (2000) 54 NSWLR 536, at 553, per Heydon, J.A.

[16] Per Lloyd, L.J. in Foster v. Tyne and Wear County Council [1986] 1 All E.R. 567, at 570. That approach, although described as "the English position", was cited with apparent approval by Heydon, J.A. in State of New South Wales v. Moss, supra, at [71], and may be taken to be a principle of general application. (Mason, P. and Handley, J.A. agreed with the reasons of Heydon, J.A , as to the relevant ground to which this observation related).