Westfield Shoppingtown Liverpool v Jevtich

CATCHWORDS: TORTS - NEGLIGENCE - DAMAGES - gratuitous attendant care services pre-existing condition requirements of s 15(2) Civil Liability Act

Coleman v Barrat [2004] NSWCA 27 Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 Johnston v Cowra Shire Council [2000] NSWCA 117 CASES CITED: Moran v McMahon (1985) 3 NSWLR 700 Purkess v Crittenden (1965) 114 CLR 164 Reece v Reece (1994) 19 MVR 103 The Owners - Strata Plan 156 v Gray [2004] NSWCA 304 Woolworths Ltd v Lawlor [2004] NSWCA 209

Westfield Shoppingtown Liverpool (First Appellant) PARTIES: Green Flower Pty Limited previusly known as P & H Property Services Pty Limited (Second Appellant) Benjamin Jevtich (Respondent)

COUNSEL: Mr J Sexton SC (Appellants) Ms S Norton SC / Mr P Khandhar (Respondent)

SOLICITORS: McCabe Terrill Lawyers Pty Ltd (Appellants) Brydens Law Office (Respondent)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40487/07 DC 3256/05

HODGSON JA TOBIAS JA BELL JA

Wednesday 18 June 2008 Westfield Shoppingtown Liverpool v Benjamin Jevtich Judgment 1 HODGSON JA: I agree with Bell JA. 2 TOBIAS JA: I agree with Bell JA. 3 BELL JA: The respondent suffered neck, jaw and leg injuries as the result of a fall at Westfield Shopping Centre, Liverpool (the injury). He brought proceedings in the District Court in negligence against the appellants, Westfield Shoppingtown Liverpool and Green Flower Pty Limited, its cleaning contractor. Both were held liable and the respondent was awarded $410,279 in damages. The appeal is confined to the assessment of damages. 4 The respondent was 62 years old at the date of the injury and he had a history of health difficulties, including that he suffers from Parkinson's disease. 5 The primary judge assessed the respondent's non-economic loss as 30 percent of a most extreme case and awarded $90,000 on this account. She allowed $304,696 for gratuitous attendant care services, of which $123,760 was for the past and $180,936 was for the future. 6 The appellants challenge the assessment with respect to the amount of the award for non-economic loss and as to the provision of any sum for gratuitous attendant care services. 7 The appellants submitted that the primary judge failed to determine the claim for gratuitous attendant care services in accordance with the provisions of s 15(2) of the Civil Liability Act 2002 (NSW) (the CLA), which precludes the award of damages for such services unless the court is satisfied that: (a) there is (or was) a reasonable need for the services to be provided, and (b) the need has arisen (or arose) solely because of the injury to which the damages relate, and (c) the services would not be (or would not have been) provided to the claimant but for the injury. 8 The medical evidence in support of the claim for services was limited and did not address the means by which the need created by the injury was to be distinguished from any need created by the respondent's Parkinson's condition. There was no other expert evidence to support the claim. The appellants' submission before the primary judge and on appeal was that the court could not be satisfied of the requirements of subsection (2)(b) and (c) in the absence of expert evidence.

The evidence 9 The evidence in support of the claim for services came principally from the respondent and his wife. Before returning to the grounds of challenge, I will outline this evidence. 10 The respondent had worked for 27 years as a fitter and turner. In 1993 he suffered an injury to his lumbar spine while lifting an object at work. He had not worked since that time. At the date of trial he was still suffering from low back pain associated with this injury. He had a history of hypertension that is controlled by medication. Some time before the accident he had been diagnosed with prostate cancer. Radiotherapy had been effective in treating this condition and at the date of trial it was understood to be under control.

11 The respondent first developed symptoms of Parkinson's disease in 1991, while he was still employed. The condition was diagnosed in 1995. Between then and the date of the accident, in March 2003, he required some domestic assistance, which was provided by his wife. At the date of the trial, in June 2007, the symptoms caused by the Parkinson's disease included opening and closing of the mouth quickly, some affectation of the respondent's speech and a tremor in the hands. These symptoms fluctuated. During a bad episode the respondent's mobility was significantly restricted. However, medication had proved effective in controlling the symptoms and the respondent was able to lead a relatively independent life. He had not noticed any deterioration in his Parkinson's condition in the period between the injury and the trial, although in cross-examination he accepted the proposition that the condition seemed to be getting worse with age. He had experienced his first Parkinson's seizure not long before the trial and had been immobilised for a time until his medication took effect. It appears that he had a further episode in the course of the trial. 12 The principal injury caused by the fall was the neck injury. The respondent experienced severe neck pain, which radiated into the left upper body. This injury contributed to the development of a disc protrusion at C7/T1. In October 2003 he underwent a left C7/T1 foraminotomy and posterior discectomy, which resolved most of the symptoms on the left side of his body. However, after a short time he developed severe pain in the right side of the neck, which radiated into the right upper body. He continues to suffer ongoing neck symptoms and pain in the upper body. This is unlikely to improve in the future. The injury to the jaw causes the respondent difficulty in eating certain solid foods.

13 The respondent said that after the diagnosis of his Parkinson's disease he had started to get help from his wife with some domestic tasks: making the bed, shopping and preparing food. He had been able to wash himself and perform household duties such as vacuuming, sweeping and dusting. The housecleaning had been shared between the respondent and his wife, although cleaning the bathroom had been her sole responsibility. He had done the household shopping before his injury and now his wife and his sons do it. He and his wife shared the lawn mowing. The tremor in his hands (a symptom of his Parkinson's disease) now prevents him from lawn mowing. He said that since the injury he does not vacuum often, although he is still does it about once a fortnight. Since the injury he has required assistance with showering, and his wife helps him to shave. Before the injury, providing his Parkinson's disease was not causing him problems, he had been able to dress himself. Since his injury he needs help with dressing. He estimated that his wife spent half an hour a day preparing a heat pack for his neck. 14 Evidence about meal preparation was significant to the appellants' case on appeal. I will set out the respondent's evidence on this topic in chief: "Q. I want to take the period just before the accident, you understand? A. Yeah. Q. Did you do any of the cooking at home? A. Yes. Q. What did you cook? A. Roast. Q. How often did you do it? A. About once a week. Q. The other meals - did your wife cook those or did you cook some of them? A. Some of them I cooked. Q. Some of them she cooked, I take it. A. Yeah." (Black 13. Q-X) … Q. Before the accident did you make your own breakfast? A. Some simple things. Q. I'm sorry. A. Simple things. Q. Simple things, do you make it these days since the accident? A. I can like - I can do simply things like fix cereals. Q. Has the accident affected breakfast making or has it not affected breakfast making? A. Not really. Q. What about lunch, has it affected that? A. It depends what's for - what's for lunch. Q. Yes, give me some examples. A. Usually we have sandwiches for lunch. Q. So you can do that alright, can you? A. Yeah, I have trouble slicing salami. Q. This is to do with your Parkinson's Disease? A. It's got to do a little bit with the tremor. Q. What about dinner? Aside from that from that roast, do you do any of the dinners anymore? A. A lot - a lot … (not transcribable) … one, every now and then. Q. Put the roast to one side, do you cook any other dinners anymore since the accident? A. No, no, but sometimes I finish - finish up what my wife starts if we run out of time, it's only if she is making a casserole or a stew like in the shop. Q. What does that mean Mr Jevtich, what do you actually do? A. I - she has to go to work, and you were preparing a meal. We only the time I take on, because it's almost there. What I try to avoid is using my hands and my body to hurt my neck." (Black 32.V-33.P) 15 Mrs Jevtich is 15 years younger than her husband. She holds a community aged-care Certificate in assistant nursing. At the date of the respondent's accident she was working around 70 hours each week in two jobs. The first was with the Parramatta Nursing Home, an aged care facility, at which she worked 38 hours a week. The second was with Mannix Disability, a service for handicapped children in the Liverpool area. She worked on night shift Monday to Friday at the Parramatta Nursing Home, starting at 11 pm and finishing at 7 am. She worked on the afternoon shift from 2 pm till 10 pm, at the Mannix Disability Service four days per week. 16 Mrs Jevtich said that the respondent had been independent prior to the accident and that he had lost his independence and confidence after the accident. She had helped him with personal care such as shaving and showering once or twice a week in the period before the injury. After the accident she had given up her job at the nursing home in order to assist him at home. She assists him daily with showering and with dressing. He is no longer able to do washing or ironing. Mrs Jevtich said that does all the meal preparation and that he helps sometimes when he is feeling good. She massages his neck in the mornings and afternoons and prepares a hot pack for him in the evening. 17 Mrs Jevtich kept a diary for a two-week period in which she recorded the extra tasks that she performed for the respondent following his injury. She recorded an average of five hours per day which were devoted to these services. In the period covered by the diary, ten hours were taken up with accompanying the respondent to the doctor, physiotherapist and chemist. Some entries related to time taken accompanying the respondent on walks.

18 The only medical evidence supporting the need for attendant care services was the opinion of Dr Ellis. In a report dated 8 August 2004 Dr Ellis commented on the respondent's jaw injury, noting that he had difficulty eating solid foods. Dr Ellis described the respondent's lifestyle as degraded as a result of the injury. He reported that the respondent cannot care for the home and garden as he previously had done, and that he has difficulty dressing and relies on his wife for assistance. He noted that the respondent was in need of constant daily pain relieving medication. In his second report, dated 2 May 2006, Dr Ellis commented that the respondent still had difficulty dressing and depended on his wife for assistance. He noted the ongoing pain in the temporo-mandibular joint and the respondent's continued difficulty with solid foods. Dr Ellis explained that the neck pain prevents the respondent from extending his head and neck and that shaving is performed with great difficulty. Dr Ellis repeated his observation of the respondent's degraded lifestyle and his continued need for assistance from his wife with dressing and shaving. The primary judge's reasons

19 On the hearing of the appeal, senior counsel for the appellants submitted that, if, contrary to his principal submission, there was evidence sufficient to permit the Court to be satisfied of the requirements of s 15(2), her Honour's reasons were inadequate to explain the conclusion both that four hours per day was a need solely referable to the injury and that the services would not have been provided but for the injury. A further complaint was of her Honour's failure to explain how she reconciled the inconsistencies in the evidence between the respondent and his wife as to the extent of the need for assistance. 20 It is to be noted that the primary judge commented that there were some inconsistencies between the evidence of the respondent and Mrs Jevtich and in these respects she preferred the evidence of the respondent. This was not a finding adverse to the credit of Mrs Jevtich since her Honour said that the inconsistencies were not significant and appeared to have been occasioned by Mrs Jevtich's difficulties with English. (Red 39.H)

21 The challenge to the assessment for attendant care services is articulated in grounds one to six of the notice of appeal. None raise insufficiency of reasons as a ground. I will nonetheless set out her Honour's reasons for this part of the assessment in full. " Griffiths v Kerkemeyer While the plaintiff did have Parkinson's disease at the time of his fall he maintained a relatively independent life. He lived (and still lives) with his wife and son. His wife is an aged care worker. The level of his independence at the time of his fall was illustrated by his wife's being able to work in two jobs for a total of 70 hours a week. She did help the plaintiff with some personal care once or twice a week when he asked for help. She would help with shaving and to finish his shower. This is consistent with the fluctuating nature of his Parkinson's disease. Before the accident the plaintiff had been able to do the vacuuming and cook his own meals. He helped with the washing and the ironing. His wife did the heavy cleaning. He went out shopping and did the lawn mowing. I accept that this level of independence and his confidence have been severely impaired by the disability caused by his neck condition. Counsel for the defendant suggested that no allowance should be made for domestic assistance as it was not the subject of expert evidence. I do not accept this submission and am satisfied that there is sufficient evidence for such an award to be made. Past Since the accident the plaintiff is limited to light duties including helping with meal preparation. However he needs a significant level of assistance from his wife including help with shaving, showering and dressing himself. He cannot do the heavy shopping, push the lawn mower or do any job involving heavy lifting. His wife kept a diary for a short period which showed that she helped him for about five hours more a day. Clearly the amount of assistance he needs will depend on his activities such as whether he needs to be taken to a doctor. It will also depend on the severity of his Parkinson's disease at the time. The amount claimed by the plaintiff - four hours a day is reasonable. I allow 28 hours a week at $20 per hour from the date of accident. This has been calculated by counsel for the plaintiff as $123,760.00. Future Counsel for the plaintiff conceded that the plaintiff is likely to need increasing care as his Parkinson's disease progresses. He submitted that it would be appropriate to address this by applying a 50 % reduction to the amount allowed. I accept that this approach is appropriate. The level of care for the past is to be continued into the future subject to that reduction. I allow the amount calculated by counsel for the plaintiff which is $180,936.00."

The submissions - gratuitous attendant care services 22 The appellants did not submit that the requirement of subsection (2)(b) that the court be satisfied the need has arisen (or arose) solely because of the injury precluded an award because the respondent's pre-existing condition created the need for some services. Senior Counsel for the appellants accepted that it was open to the Court to award damages for the increment in the need for services occasioned by the injury. This is consistent with the views expressed by Beazley JA (with whom Hodgson and Tobias JJA agreed) in Woolworths Ltd v Lawlor [2004] NSWCA 209 at [28] - [30]. 23 Senior Counsel for the appellants submitted that s 15(2)(b) effects a "reversal of a Watts v Rake type onus". (T'cpt 2.8) In his submission, it was incumbent on the respondent to adduce medical evidence to permit the Court to differentiate between the needs created by the Parkinson's disease and those arising as the result of the injury. 24 In Purkess v Crittenden (1965) 114 CLR 164 at 168 Barwick CJ, Kitto and Taylor JJ explained that Watts v Rake was concerned with the character and quality of the evidence required to displace a plaintiff's prima facie case. In Johnston v Cowra Shire Council [2000] NSWCA 117 Heydon JA (with whom Stein JA agreed), after referring to the joint reasons in Purkess at 168, observed (at [35]): "The Court was saying that no reduction in damages can be made on the mere submission of the defendant based on an alleged pre-existing incapacity, unless that submission meets an evidential burden. If the defendant does that, the legal burden remains with the plaintiff to satisfy the trier of fact on the whole of the evidence as to the extent of the injury. Here the defendant had to tender evidence capable of establishing a pre-existing condition and its effects. If it did this it was for the plaintiff to prove the extent to which his injury was caused by the defendant's negligence." 25 In this case there was no question as to the existence of the pre-existing condition, nor that it occasioned the need for some attendant care services. Section 15(2) precluded the court from awarding damages for attendant care services unless it was satisfied, inter alia, that the need had arisen (or arose) solely because of the compensable injury and that the services would not be (or would not have been) provided but for the compensable injury. Subsection (2) is directed to satisfaction with respect to "these services". It was necessary for the respondent to satisfy the court of the increment in the need for services caused by the injury. It does not follow that his claim was to be rejected in the absence of expert evidence. 26 The respondent and his wife gave evidence of the relatively limited attendant care services that she provided because of his Parkinson's condition in the period prior to the injury. It was possible to quantify the increment in the need for services occasioned by the injury in the period between the accident and the trial. The primary judge considered that the fact that Mrs Jevtich had been able to maintain two jobs prior to the accident provided support for acceptance of the evidence that, notwithstanding the respondent's Parkinson's disease, he had been leading a largely independent life before the injury. 27 The respondent's evidence of the need for services as the result of the injury was of a most general kind. No attempt was made to adduce from him evidence identifying the time taken in the provision of the services (save for his estimate with respect to the daily preparation of the heat pack). However, Mrs Jevtich's evidence did provide a more precise basis for determining the amount of services referable to the injury. She said the diary was an accurate record of the additional services provided as a result of the injury.

28 The fact that Mrs Jevtich gave up her principal employment after the injury did not establish the reasonable need for the attendant care services that she described. However, it was a significant item of evidence, which had relevance to the resolution of the claimed inconsistencies between the respondent and Mrs Jevtich on matters such as the extent to which she had assumed responsibility for meal preparation for him. The respondent's evidence was that he had cooked for himself before the injury and that he was still able to do so. Mrs Jevtich recorded at least 1 ¼ hours per day as referable to meal preparation for the respondent occasioned by his injury. Both she and the respondent acknowledged that she had done some meal preparation before the injury. The primary judge's reasons were expressed with brevity and her Honour did not address this inconsistency in terms. However, as noted, she commented on Mrs Jevtich's extraordinary work hours in the period prior to the injury. As a matter of practical reality the opportunity for Mrs Jevtich to be attending to meal preparation or providing other care services to the respondent at a time when she was working 70 hours per week was limited.

29 Her Honour's finding with respect to pre-injury services was that Mrs Jevtich helped the respondent with personal care once or twice a week. When he asked for help, she helped him with shaving and to finish his shower. (Red 48.E-F) These attendant care services, which were referable to the need created by the Parkinson's disease, would not have accounted for one hour per day. It would appear that the allowance of four hours per day, and not the five hours which are recorded in the diary, involves some discount. Her Honour commented that the level of services would depend on matters including whether the respondent needed to attend the doctor. 30 In my opinion, the evidence was sufficient to permit the primary judge to differentiate the past reasonable need for attendant care services arising from the injury from the need created by his pre-existing condition. Given her Honour's acceptance of Mrs Jevtich and the diary as a representative record of the post-injury services, the assessment of four hours per day was open. 31 Counsel for the appellants submitted that her Honour's approach to the assessment of the need for future services was flawed. Instead of determining the extent of the need for services referable to the injury, the judge had merely projected the continued need for four hours services referable to the injury and then made a 50 percent reduction for the greater than usual vicissitudes to reflect the pre-existing Parkinson's disease. The challenge to the sufficiency of the evidence in the absence of medical opinion was squarely raised by the claim for future services. 32 Dr O'Neill, a neurologist qualified by the appellant, was the only expert witness to give an account of the prognosis of Parkinson's disease. He described it as a slowly progressive disorder for which the respondent would require increasingly greater support from his wife. He said that patients with Parkinson's disease are usually severely disabled from their condition by about 15 years after onset.

33 The appellants' challenge to the sufficiency of the primary judge's reasons with respect to the award for future services was based on her Honour's failure to explain how she reconciled Dr O'Neill's evidence with her finding of the need for services for the remainder of the respondent's expected life arising from the neck injury. Her Honour did not overlook Dr O'Neill's evidence. She summarised it in dealing with the respondent's Parkinson's condition. (Red 47.3-7) On Dr O'Neill's prognosis, the respondent should have been severely disabled by the date of the trial. Her Honour found that his condition was in fact well controlled. 34 Her Honour did not, in terms, refer to the requirements of s 15(2), in dealing with the assessment as to the past or the future. However, it is clear that she approached the task recognising that it was necessary for the respondent to establish the need for services arising solely because of the injury, and that the services would not have been provided but for the injury. In my opinion, the absence of medical evidence was not fatal to the claim for future attendant care services. It was open to find that the respondent's Parkinson's condition was not following the course predicted by Dr O'Neill. At the date of trial, 16 years after symptoms first developed, the respondent continued to be well controlled on medication. At the date of trial, her Honour was satisfied as to the respondent's continuing need for four hours of services referable to the injury. She approached the assessment on the basis that the existing need for four hours services should be reduced to two hours per day, not because the respondent would not continue to require four hours of domestic assistance each day as the result of his injury, but to take into account that over time the Parkinson's symptoms were likely to become more intrusive and generate the same need for services. 35 The future is necessarily uncertain. It may be beyond the ability of medical science to provide a precise means of predicting future needs referable to the injury, as distinct from the pre-existing condition. It does not follow that an award cannot be made for future attendant care services in a case in which the plaintiff has a pre-existing condition. Given the severity of the symptoms caused by the injury and the need they had occasioned for assistance, in my opinion it was open to the judge to be satisfied that for the balance of the respondent's expected life two hours per day of attendant care services would be referable to the injury. Non-economic loss 36 The appellants submitted that taking into account the respondent's age, his pre-existing conditions (particularly the Parkinson's disease) and the nature of the injuries suffered in the fall, the assessment that the severity of the injury was at least 30 per cent of a most extreme case was wrong: Reece v Reece (1994) 19 MVR 103; Coleman v Barrat [2004] NSWCA 27 at [63]-[69]; Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 at [72]. 37 In the appellants' submission, an appropriate award would be based on not more than 25 per cent of a most extreme case. 38 At trial, counsel for the appellants submitted that non-economic loss should be assessed as a "23 to 25 per cent case". (Black 125.I) This was in the context of the appellants' contention that the respondent's right side neck pain was not occasioned by the fall. The primary judge found that it was. The respondent suffers significant daily pain as the result of his injury. The level of his symptoms is unlikely to improve in the future. The jaw injury interferes with his ability to eat. Generally, the respondent's ability to carry out the normal activities of daily life have been significantly compromised as the result of his injury. 39 The principles governing a challenge to the assessment of non-economic loss are set out by McColl JA in Elite Protective Personnel at [70] - [72]. The determination involves an evaluative judgment. Notwithstanding the respondent's age in light of the primary judge's findings, I do not consider that the determination of the respondent's economic loss can be said to be a wholly erroneous estimate or so unreasonable and plainly unjust that it must be inferred that in some way her Honour failed to properly exercise her discretion: Moran v McMahon (1985) 3 NSWLR 700; The Owners - Strata Plan 156 v Gray [2004] NSWCA 304 at [41]. 40 For these reasons I propose that the appeal be dismissed with costs. **********

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