White v Benjamin

Court of Appeal (NSW)|2014-10-03|Before: Beazley ACJ, Basten JA, Meagher JA, Mr J

Solicitors: Brydens Law Office (Appellant) Curwoods Lawyers (Respondents) File Number(s): 2013/336394 Decision under appeal Court or tribunal: District Court Date of Decision: 10 October 2013 Before: Curtis DCJ File Number(s): 2012/349724

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote should not be read as part of the judgment] On 11 October 2008, Mrs Victoria White, the appellant, suffered injuries when the vehicle she was driving was stationary and was hit from behind by a vehicle driven by Mrs Nicole Benjamin, the first respondent. As a result Mrs White suffered injuries to her shoulder, neck and lower back. The shoulder and back injuries resolved, however Mrs White has a continuing disability flowing from the neck injury. This disability was not disputed. Mrs White claimed damages in the District Court for past and future economic loss, and for gratuitous care and commercial services. The trial judge, Curtis DCJ, gave a judgment in Mrs White's favour awarding her damages for future economic loss resulting from her loss of earning capacity, but did not award any damages for past economic loss, gratuitous domestic care or commercial services. Mrs White appealed the part of the District Court decision relating to the assessment of damages. She contended that the trial judge erred: (i) In not awarding damages for diminution of her earning capacity - (a) in rejecting her case that, had it not been for the accident she and her family would not have moved to Canada and she would have been able to pursue her nursing career gaining fulltime employment in Australia; (b) in finding that the appellant suffered no loss while in Canada, as it was more likely that, uninjured, she would be employed part-time doing bookkeeping which would not have required more than her residual capacity and (c) in rejecting her case that once she established a reduced earning capacity, the respondent bore at least an evidential burden of showing that she had a particular level of earning capacity and that appropriate work was available. (ii) In increasing the reduction for vicissitudes in relation to the future economic loss from the conventional 15% to 25% because of the appellant's age, the family's propensity to move and potential early retirement induced by Mr White's financial success. (iii) In rejecting the claim for gratuitous care, by taking into account only the needs and services which benefited the appellant (and disregarding those that benefited other members of the family) in assessing whether the received care reached the minimum compensable threshold of 6 hours per week over a period of 6 months. (iv) In requiring that the appellant establish that a need for commercial services was likely to arise in the future. The Court (Beazley ACJ, Basten and Meagher JJA) held, allowing the appeal in part: In relation to (i): (Basten JA, Beazley ACJ and Meagher JA agreeing)

Judgment

BEAZLEY ACJ: The appellant, who was injured in a motor vehicle accident on 11 October 2008, claimed damages for economic and non-economic loss she alleged she sustained as a result of her injuries suffered in the accident. The trial judge, Curtis DCJ, awarded the appellant damages in the sum of $202,147.15. In awarding that sum, his Honour rejected the appellant's claim for gratuitous care and commercial services.
The appellant has appealed against the award made by his Honour for loss of earning capacity, the deduction he made for vicissitudes and his rejection of her claim for gratuitous care and commercial services. I agree, for the reasons given by Basten JA, that the appeal against the award of damages for loss of earning capacity should be rejected. I also agree, for the reasons given by Basten JA, that the trial judge erred in reducing the damages awarded by more than the usual 15 per cent for vicissitudes. I wish, however, to express my own reasons in respect of the claim for domestic assistance.
As the appellant was injured in a motor vehicle accident, her claim was governed by the Motor Accidents Compensation Act 1999 (NSW) (MACA) and, insofar as it applies, the Civil Liability Act 2002 (NSW) (CLA). Contrary to his Honour's finding that the CLA, s 15 applied, the MACA, s 141B, governed the appellant's claim for gratuitous attendant care services: see CLA, s 3B. No claim was made at trial pursuant to the CLA, s 15B, relating to damages for loss of capacity to provide domestic services to others. In this regard, unlike s 15, s 15B does apply to motor vehicle accidents by operation of the CLA, s 3B(2).

Claim under s 141B of the MACA

Section 141B provides, relevantly, a threshold level of services that must be required for "attendant care services" provided gratuitously "by another person to the person in whose favour the award [of compensation] is made". "Attendant care services" are defined in MACA, s 3 to mean "services that aim to provide assistance to people with everyday tasks [including] … domestic services". This definition picks up the component of common law damages commonly referred to as Griffiths v Kerkemeyer damages: Daly v Thiering [2013] HCA 45 at [13]. In Van Gervan v Fenton [1992] HCA 54; 175 CLR 327, the High Court observed, at 333, that "the true basis of a Griffiths v Kerkemeyer claim is the need of the plaintiff for those services provided for him or her". The Court, at 334, referred to the relevant services as those "required by the injured person".
Pursuant to s 141B(3), no compensation is to be awarded for this component of damages unless the attendant care services are provided or are to be provided for at least six hours per week and for a period of at least six consecutive months.
A claim for attendant care services is to be contrasted with a claim for damages for the loss of capacity of an injured person to provide services to third parties, such as family members: see CSR Ltd v Eddy [2005] HCA 64; 226 CLR 1 at [21]. As noted above, under the present legislative scheme, a provision for loss of capacity to provide those services is to be found in CLA, s 15B. The appellant made no claim at trial for damages under that section. To the extent that the appellant pressed a case relating to care that enured for the benefit of family members, her submission was that such services fell within the definition of "attendant care services".
The particular question which arises for consideration on the s 141B claim in this case is the extent to which the appellant is entitled to be awarded damages where the services for which the claim is made are services for which members of the household also benefit.
Although the trial judge erroneously applied s 15 of the CLA, he addressed the relevant issue at [48], when he stated that the evidence of the appellant and her husband relating to domestic assistance did "not address the real question, which is: What is the accident-caused need of [the appellant]?". His Honour noted that the appellant had not made a claim pursuant to the CLA, s 15B in respect of the services she had formerly provided to her husband and children. His Honour continued, at [50]: "It may be accepted that [the appellant's husband] now attends to household and parental tasks that he previously left to his wife. It may be that he devotes an hour and a half each day to these tasks. However, the only services for which [the respondent] is liable to compensate are those services provided to satisfy the needs of [the appellant] caused by her injuries."
His Honour, at [51], excised from those needs the cleaning of a second bathroom for use by other family members and the washing and ironing for her husband and children. It also appears that his Honour excluded the time that the appellant's husband spent in the garden and in mowing the lawns. This is apparent from his Honour's comment, at [53], that the appellant's husband had a direct interest in maintaining the amenity of the grounds and because he attended to that interest, the appellant had no independent need requiring satisfaction.
His Honour, at [52], referred to the appellant's physical restrictions which disabled her from activities requiring bending or twisting of the neck or strenuous or repetitive tasks. His Honour also referred to the appellant's remaining capacity to attend to her own personal care, to cook, shop for herself, wash and iron her own clothes and do light sweeping and cleaning. His Honour then found the appellant's need as being, to have, once or twice a week, her house vacuumed, and one bathroom and the kitchen thoroughly cleaned. His Honour found that these tasks could be accomplished by a cleaner attending upon the house for 1.5 hours on each occasion.
In her evidence in support of her claim for domestic assistance, the appellant said that in addition to doing all the household chores prior to the accident, she occasionally mowed the lawn and she and her husband both attended to the garden. The evidence in relation to the garden related to the time immediately after the accident when the appellant and her husband were living in their own home. Subsequently, they moved to Canada and first rented a three bedroom home and then a unit. On their return to Australia in 2011, the appellant and her husband rented a three bedroom home.
The appellant gave evidence that after the accident she had difficulty with vacuuming, sweeping and mopping the floors and with heavy cleaning of the bathrooms and kitchen. She said that she found ironing painful, but that she could still do the cooking. She said that after the accident, her husband attended to these tasks and that averaged out over a week, he devoted about an hour and a half to two hours a day to "doing [her] housework". Unfortunately, this aspect of the evidence lacked clarity, as the questions leading up to this estimate related to the "heavier chores" in the premises.
The trial judge was critical of the appellant's husband's evidence. In particular, his Honour was unconvinced by his evidence that the time taken for him to undertake household chores after the accident did not change notwithstanding a change in the family's living arrangements from a five bedroom home to two bedroom unit and then to a three bedroom house.
On the appeal, it was argued that the appellant's claim for damages for domestic services for which others in the household also received a benefit was contrary to the authority of Allianz Australia Insurance Ltd v Ward [2010] NSWSC 720; 79 NSWLR 657 per Hidden J. I agree with the observation of Basten JA at [75], that where the elements of a claim for services are severable as between a plaintiff and persons who share the benefit of those services, it is not permissible to commingle all aspects of the services in order to determine whether the threshold of six hours a day for a continuous period of six months has been satisfied.
It is different, however, where the services are not severable. This is apparent from the judgment of McHugh J in CSR v Eddy at [115], cited by Basten JA below at [66]. As the Federal Court noted in Hodges v Frost [1984] FCA 98; 53 ALR 373 at 388, commingled needs of a husband and wife are "no less the needs of the wife because they [are] in some cases mutual". In my view, it is also apparent from what this Court said in Coles v Supermarkets Australia Pty Ltd v Haleluka [2012] NSWCA 343 at [47]-[54]. Although there was a question in that case as to whether the medical assessment of the hours spent in household chores had been based upon a wrong recording of the size of the plaintiff's house, the judgment proceeded on the basis, at least implicitly, that where chores are undertaken for the benefit of the household and are not severable, such as cleaning kitchens and bathrooms, those services cannot be disentangled. It is difficult, therefore, to see why his Honour excised the cleaning of the second bathroom and the work in the garden from the damages recoverable for attendant gratuitous services. In my view, his Honour erred in doing so. I also consider his Honour erred in excising from the services the appellant needed her personal ironing, which she said was painful for her to do, and at least some of the care for the garden.
I am also of the opinion that his Honour erred in assessing the time required for the services by reference to the time it would take for a cleaner attending at the house and doing that work. In Coles v Supermarkets Australia v Haleluka, Allsop P (as his Honour then was) observed, at [52], that there was no part of s 15 (the CLA equivalent of Griffths v Kerkemeyer damages) that required the services to be assessed as though they were performed by professional providers.
In my opinion, the evidence sufficiently established that the appellant required assistance for six hours per week and that she had that need for a continuous period of six months. The accident occurred on 11 October 2008. The appellant did not leave for Canada until August 2009. In that time, she and her husband lived in a five bedroom house with a garden and lawn. To the extent that his Honour was critical of the appellant's husband because his evidence did not change as to the time he spent doing chores regardless of the size of the house, this criticism could not be levied at him in respect of the property in which they were living as at the time of the accident.
For myself, I would see no exaggeration in a claim that the heavy household chores, that were for the benefit of the entire household and could not be disentangled from the appellant's own needs, would take six hours a week. This is so notwithstanding that the trial judge did not accept all of the appellant's evidence on other aspects of her claim. I also consider that there was no reasonable basis upon which to refuse the claim for the provision of services by a commercial provider. It is not difficult to perceive that a person with professional qualifications with a family to attend to would not continue to personally do the heavy household chores required in the household.
I would allow both the appellant's claim for attendant care at the rate of six hours per week as to the past and her claim for those services to be provided on a commercial basis in the future. Accordingly, I would propose that the appeal be allowed in part. I would direct the parties to bring in short minutes of order to reflect these orders. If the parties are unable to agree on the orders that should be made, I would make appropriate directions for further submissions. It is not necessary, however, for me to formalise these directions, as my view on the issue of gratuitous attendant care services and commercial services is not one shared by the other members of the bench.
BASTEN JA: This appeal relates to an assessment of damages in the District Court for the victim of a motor vehicle accident. The appellant, Victoria White, may conveniently be referred to as "the plaintiff". On 11 October 2008 she suffered injuries when the vehicle she was driving was stationary and was hit from behind by a vehicle driven by the first respondent. She suffered injuries to her shoulder, neck and lower back which, with the exception of the neck injury have resolved.
There is no dispute that the plaintiff has continuing disability flowing from an injury to her cervical spine at C5/C6. The judge made factual findings in that regard which are not in dispute. The grounds of appeal focus upon the assessment of damages based on her resultant loss of earning capacity and her need for domestic services.

Past economic loss

At the time of the accident, the plaintiff had completed pre-nursing qualifications and was about to undertake her nursing training. Shortly thereafter, she and her husband and their two young children moved to Canada. When they returned to Australia her husband, a podiatrist, purchased a practice in Coffs Harbour, where they settled. The plaintiff's case at trial with respect to past economic loss was that, absent the motor accident, they would not have gone to Canada. Further, they would have stayed in Sydney, where her mother lived and was able to provide assistance with child care which would have allowed her to work while undertaking her nursing training.
The trial judge, Curtis DCJ, rejected these assumptions: at [21] and [22].
Apart from a small amount by way of lost wages which were covered by workers' compensation payments, the trial judge awarded no damages for economic loss up to the date of the trial. The reasons why he did not require some brief consideration of the plaintiff's circumstances. Ultimately, however, the difficulty she faced in establishing loss was that the rejection of her primary case (that she would not have gone to Canada but for the accident) left her without evidence as to what loss she suffered in Canada. In other words, if she would have gone to Canada in any event and would not have undertaken employment in Canada in work which required more than an exercise of her residual earning capacity after the accident, no loss was established.
The history of events prior to the accident can be briefly stated. The plaintiff was born in Ireland in 1970, apparently completing her school education in 1987. After a variety of jobs, she worked as an "auxiliary nurse" in Ireland from 1994 to 1998. In 1997 she married Alan White and was employed as a receptionist in his podiatrist's practice between 1997 and 1998. In 1999 they left Ireland for Halifax, Nova Scotia.
From about 1999 to 2007 she and her husband lived in Canada, where she was employed as a nursing aide in a retirement home. In 2002 her first child, a daughter, was born; a second child was born in 2006.
In July 2007 the family moved to Australia. The plaintiff obtained work as a nursing assistant at a retirement village in Stanhope Gardens in north-west Sydney. She worked part-time on weekends.
From March to July 2008 the plaintiff undertook a 14 week 'introduction to nursing' course, which she described as a prerequisite to becoming an endorsed enrolled nurse: Tcpt, 12/09/13, p 7(40). She gave evidence that to proceed with nursing training she would need to find a position where she could work and intended to apply "to the local hospital which would have been Westmead": Tcpt, p 8(5). However, she had not taken that step three months later when the accident occurred.
About two months before departing for Canada, on 1 May 2009, she gave notice to the retirement village of her resignation. Before then she had continued to work part-time since her accident on light duties, when not incapacitated. An employment separation form indicated two reasons for the resignation, being "health" and "moving out of the area". She gave evidence that she had completed that document: Tcpt, p 15. No explanation was given for her resignation in her evidence in chief and, following the tender of the document, her evidence continued (Tcpt, p 16): "Q. So off you went to Canada? A. Yes. Q. Alan had a job, correct? A. Yes. Q. Did you? A. No. Q. And he had in fact left a little while before you, hadn't he? A. Yes, yes. Q. What was the purpose of that? A. To start the job."
Mr White gave evidence that he left for Canada in about July 2009 and had a job lined up before he left. He was asked what caused him to look for work in Canada in 2009 and stated (Tcpt, p 50(5)): "We felt we could go back to our - our good lifestyle that we had in Canada prior to coming to Australia initially and it - it allowed me to - working for someone else in the position, the money I was getting was - was very good with the time I had to do, four days a week. It gave me more time to attend to the - my extra needs around the house."
He also gave evidence that his parents were living in Canada and that, just after he had arrived in Australia, his mother was diagnosed with cancer: Tcpt, p 50(48).
This evidence made almost inevitable the finding of the trial judge that the family had decided to return to Canada before the plaintiff's accident, and thus reject her claim that the family would not have moved back to Canada in 2009, but for her accident. The finding was not, in any event, challenged on appeal.
The question thus became what earning capacity the plaintiff had lost as a result of her injuries, which she would have exercised in Canada, had the injuries not occurred. The answer to that question was to be determined by way of inference from her statements of intention and her conduct. The inferences were not based on direct evidence, because the plaintiff's case did not address the issue directly, having been limited to the work she would have done had she remained in Australia.
In these circumstances, it was not surprising that the trial judge dealt with the question of past economic loss succinctly. The critical passages were as follows: "[27] I accept that … because of her injuries Mrs White has suffered a diminution of her working capacity. I find that Mrs White, uninjured, would not have exercised that capacity while in Canada between 2009 and 2011 other than to work part time on weekends as an assistant nurse. She did this work after the birth of her children and before coming to Australia. [28] Nevertheless, during this time in Canada Mrs White retained an ability to work part time in a less strenuous but equally rewarding occupation such as book keeping. The plaintiff has not persuaded me that the diminution in her capacity was productive of economic loss."
The finding that the plaintiff, uninjured, would not have worked fulltime in Canada was based on a number of factors. First, to work ordinary hours would have required that she obtain child minding during any period that both she and her husband were working. The fact that she was working part-time prior to the accident may have been partly due to the fact that her younger child was no more than two years old at that time. He would, presumably, not have been going to kindergarten until after the family returned to Australia. Her mother was available to assist with child minding in Sydney, but not in Canada. There was no evidence that acceptable alternative child minding facilities were available to her in Canada.
Secondly, while working for the retirement village in Stanhope Gardens, the plaintiff worked part-time only, despite the availability of her mother to assist with child minding.
Thirdly, after she left Stanhope Gardens, she did not seek alternative employment, even though she had finished her TAFE course, although she retained some earning capacity. A possible reason for this (not put forward by her, because she denied an intention at that stage to go to Canada) was that her husband was seeking work in Canada and the family was intending to move in the near future.
These reasons provided ample justification for the finding of the trial judge that the plaintiff was more likely than not to have worked only part-time on weekends while in Canada. The question was then what work was available to her. The judge inferred that, uninjured, she would have obtained part-time work as an assistant nurse. The focus of the challenge with respect to this element of the award was the next step in the reasoning.
When the family returned to Australia and her husband obtained a podiatry practice in Coffs Harbour, the plaintiff worked for him. She gave evidence that, starting in 2012, she did about 15 hours work a week for him, which she described as "bookkeeping". She did not describe it as "rewarding" or "equally rewarding". She gave evidence that her pay (which was below the tax threshold) was about $277 per week: Tcpt, p 43(13). In this Court, the plaintiff challenged that finding, noting that there was no evidence that such work was available to her in Canada, nor as to the equivalent rates of pay for assistant nursing and bookkeeping in Canada. There was therefore no basis for the trial judge to conclude that such work as was available to her (because less strenuous) would be financially equivalent to that which she could no longer do.
This was a bold submission: the plaintiff bore the onus of proving her loss - if there was no evidence before the trial judge sufficient to satisfy him as to an established loss, the plaintiff was bound to fail on that head of damage.
The plaintiff resisted this conclusion as the product of erroneous reasoning. She carried the burden, she submitted, of establishing her reduced earning capacity. Demonstrating that she had a residual earning capacity which would be productive of income in a particular geographical area where it was reasonable to expect her to live, with jobs available to her, was a matter on which the respondent bore at least an evidential onus. Counsel referred to the statements approved on more than one occasion in this Court that a defendant who contends that the plaintiff has a residual earning capacity has the burden of adducing evidence of what work the plaintiff is capable of performing "and what jobs are open to a person with such capacity": Kallouf v Middis [2008] NSWCA 61 at [52], cited with approval in Mead v Kerney [2012] NSWCA 215 at [26].
These statements of "principle" are to be traced back to an unlikely source, namely Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9; 122 CLR 649. That was a case in which a jury verdict in favour of a severely injured plaintiff who was "almost a quadriplegic" in an amount of $166,840 was held to be unreasonably and manifestly excessive (in 1968). Kitto J and Owen J agreed with the reasons of Taylor J. McTiernan J dealt with the matter in a somewhat different manner from the other members of the Court. It is a passage in the judgment of Barwick CJ upon which reliance is placed. The context may be found in the following passage (at 657): "Too little emphasis it seems to me is usually given to the moderation with which the assessment of damages for personal injuries should be essayed by the jury. Mere statement that the compensation is to be fair does not seem to me to be enough. The concept of fairness, with its concomitant moderation, needs explanation and emphasis and the jury needs to be carefully and specifically warned against attempting a perfect compensation."
After further emphasising the risks of over-generosity on the part of juries who have the plaintiff before them, the Chief Justice noted that the plaintiff had "lost his earning capacity, so far as the evidence goes, all earning capacity." He then said: "In this connexion, however, too little attention it seems to me is paid to the possibilities which have and will yet open up for paraplegics and quadriplegics: but this ought to be the subject of evidence and not of mere suggestion on the part of judge or advocate."
The warning against speculation in such a case was no doubt understandable. The plaintiff was a miner who it was said "could not read and could write no more than his own name": at 651. He was paralysed from the chest down. He could not cut up his food nor fully dress himself.
In short, Barwick CJ, noting that the plaintiff had established a total loss of earning capacity, but, noting the speculative possibility that in future a person suffering such gross disabilities might yet obtain employment, warned that there should be some evidential basis before reducing damages on that account.
This is a far cry from suggesting that once a plaintiff demonstrates some loss of earning capacity, a burden is transferred to the defendant to demonstrate with precision what residual earning capacity the plaintiff retains and the kinds of work available to the plaintiff in the area in which she lives.
In any event, in the present case there was ample evidence from her subsequent work that she had a residual capacity of the kind identified by the trial judge. It is nonsense to suggest that some burden lay on the respondent to demonstrate that such work was available to her in Canada. Particularly is that so where the plaintiff's case was that, but for the accident, she would not have gone to Canada and would have worked in Australia. There can be no complaint that the task undertaken by the primary judge was to assess her loss of earning capacity against the use she would have made of it had she stayed in Australia.
The second step in the challenge was that, had she stayed in Australia, her family would have stayed in Sydney and she would have had available to her the child minding assistance which had been provided in the past by her mother.
This proposition depended on the earlier step rejected by the trial judge, namely that, had the accident not occurred, she and her family would not have returned to Canada. Having returned to Canada, they then came back to Australia in late 2011. (Why they did so was not clear on the evidence.) However, on return, Mr White took, from a number of options, the opportunity to purchase a practice in Coffs Harbour. The evidence did not justify the conclusion that he would not have done so had the plaintiff not suffered injury in the motor vehicle accident. Accordingly, the counterfactual proposition that the family would have remained in Sydney, so that she could have embarked on fulltime work as an enrolled trainee nurse, was not demonstrated as a likely state of affairs.
An assessment of past economic loss where there is residual earning capacity which the plaintiff may not have exploited to the full, involves a counterfactual hypothesis to be addressed in the manner described in Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638. The exercise to be undertaken with respect to future economic loss is prescribed by s 126 of the Motor Accidents Compensation Act 1999 (NSW) which reads as follows: 126 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 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 concerned 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.
That approach does not precisely accord with that required by Malec v Hutton. However, no issue as to the correct test was raised in the present case and it is convenient to accept that the language of s 126 should be applied to the hypothetical nature of the calculation of past economic loss, as well as future economic loss, to which, as a practical matter, it is a precursor. It is therefore convenient to note at this stage the approach which the trial judge took to that claim.

Future economic loss

The key passages in the judgment in relation to future economic loss read as follows: "[30] I accept Mrs White's evidence that she had set her heart upon a career in nursing, and I find that, probably, uninjured, she would have completed her training when her children no longer needed her care. They are still of tender years. [31] It is reasonable to suppose that, uninjured, after her seven-year old son Aaron turned 10 in 2016 Mrs White may have resumed her nursing career, qualifying as an enrolled nurse in 2020 when she was 50 years old."
The judge then proceeded on the basis that a trainee nurse would commence on an award wage of $600 per week in the first year, increasing in steps to the wage of an enrolled nurse, being $766 net per week: at [32]. At trial, the respondent accepted that she had a residual earning capacity of $400 per week. This was described by the trial judge as a "concession": at [33]. Although it was not a concession by the plaintiff, her counsel expressly referred to the figure in final submissions and accepted that it was "probably fair enough": Tcpt, p 68(50). Although counsel then floated the idea that it might be $500 per week, there was no error on the part of the trial judge in accepting the lower figure.

Deduction for vicissitudes

Secondly, with respect to future economic loss, the plaintiff challenged the reduction of 25% for vicissitudes. The plaintiff accepted that some reduction was necessary to allow for a possible loss of earning capacity in the future, unrelated to the accident, but contended that the reduction should be no more than the conventional 15%.
The trial judge stated at [36]: "A number of circumstances militate towards a significant discount in the present case. Upon the probabilities Mrs White uninjured would have been 46 years old when she commenced her nursing training. It would not be surprising if, her husband being securely employed, she changed her mind about embarking upon such a strenuous career. The family have shown a propensity to move location, and it may not be assumed that Mr and Mrs White would certainly remain in one location for the amount of time necessary for her to complete her training. Even after her graduation, if Mr White's practice flourished, Mrs White may have chosen to retire earlier than her 67th year. In addition to the usual discount of 15% against the possibilities or disabling injury it is appropriate to provide a further 10% discount for these additional circumstances."
The plaintiff submitted that she had demonstrated over some years a commitment to achieving her ambition of qualifying as a nurse. It was the product of a mature judgment and had not been challenged in cross-examination. Accordingly, her age was not a sound basis for doubting her future intentions. Similarly, her commitment to her own career should not have been assumed to be subject to the financial success or otherwise of her husband's business. Again the possibility was not put to her in cross-examination and the stereotyping revealed by the consideration demonstrated an error of principle.
Finally, the propensity of the family to move, while it had some basis in the past, was unlikely to have prevented her completing her nursing training, given that her husband had purchased a practice and that their children would both be of school age for some years.
Each of those considerations has substance. In particular, the likely future earnings of one party to a relationship should not be discounted on the basis that the other appears to have a successful career on the absence of some basis in the evidence for such an inference. Such a consideration would also need to have regard to the countervailing possibility that the successful spouse might be disabled at some time before the usual retirement age.
Although the Court must be slow to interfere with a discretionary assessment which depends in part on an understanding of the plaintiff's motivations and intentions, it is open to the Court to intervene where there has been a misapplication of principle or a finding made without an appropriate evidential basis. The additional 10% reduction should be set aside and the damages for future economic loss reinstated in an amount of $21,000 which, with an allowance for superannuation would result in an award of an additional $23,700, in round terms.

Domestic assistance

There is often a correlation between loss of earning capacity and the need for domestic assistance in circumstances where earning capacity depends upon the ability to undertake strenuous physical tasks. In this case the inability of the plaintiff to undertake a career in nursing was at least indicative of a loss of capacity which would reflect a need for domestic assistance. The trial judge found at [52]: "Upon the medical evidence Mrs White is disabled from activities requiring bending or twisting of the neck or strenuous or repetitive tasks. She is not disabled from personal care, cooking, shopping for herself, washing and ironing her own clothes and light sweeping and cleaning. I think that the need of Mrs White is that once or twice a week her house be vacuumed, and one bathroom and the kitchen be thoroughly cleaned."
The references to shopping "for herself", ironing "her own clothes" and cleaning "one bathroom" reflected an express finding that the respondent was liable to compensate the plaintiff only for those services "provided to satisfy the needs of" the plaintiff personally, and not the needs of her family members, which thus excluded the cleaning of a second bathroom, washing and ironing for her husband and the children and otherwise attending to the children's needs: at [50] and [51]. The plaintiff submitted that this dissection of needs and services was erroneous and that, at least to the extent that the needs were commingled, that approach should not have been adopted. It went further than an allocation of needs within the home: the trial judge declined to make any allowance for time spent by the plaintiff's husband in maintaining the garden and lawns of the family home because, he said, Mr White had "a direct interest in maintaining the amenity of the grounds, and because he attends to that interest, the plaintiff has no independent need requiring satisfaction": at [53].
A similar factual situation arose in a case determined under the common law in the ACT, namely Hodges v Frost (1984) 53 ALR 373 (Full Court of Federal Court: Gallop, Morling and Kirby JJ). The wife had suffered a whiplash injury in a motor accident. Her husband gave evidence, accepted by the trial judge, to the following effect (set out at 53 ALR, 376): "If she tried to do housework herself, the resulting pain made her irritable and hard to live with. Whereas before the accident he did no housework in normal circumstances, after the accident he had to 'reorganise' himself 'completely' to do the vacuum cleaning, some washing, most of the ironing and cooking the evening meal."
The case was concerned with a claim for gratuitous domestic assistance, based on Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161. As Kirby J noted, the services must "go beyond the mere rearrangement of domestic chores or the tender attention to comfort that can be expected in an affectionate environment" and "must be such that, but for the gratuitous and benevolent activities, it would have been necessary to secure assistance at a cost": at 380, referring to Griffiths at 168. That test was not without its difficulties, but the more important distinction was that drawn between the services required by the plaintiff and the services which the plaintiff provided to others, albeit, as a result of the accident, she was not able to provide either: at 383.
Kirby J referred (at 384) to an unreported decision of Cummings v Canberra Theatre Trust (unrep, 18 June 1980, Full Court of Federal Court: Brennan, MacGregor and Fisher JJ). In the joint reasons of Brennan and Fisher JJ the following appeared: "Where, according to the practice of a family of which the plaintiff is a member, the plaintiff performs particular domestic chores and is disabled from continuing them by the conduct of a tortfeasor, that incapacity is a loss suffered by the plaintiff and, subject to what was said in Griffiths v Kerkemeyer … as to the benefit of subventions received from third parties, the cost of providing the services which are needed because of the incapacity should be borne by the tortfeasor. This is not a case where there was a rearrangement of domestic chores consequent upon an injury, and the events which occurred after the accident showed that it was reasonably necessary to provide the requisite services at a cost."
In Hodges Kirby J further noted at 387, 388: "Although it is true … that the services of a domestic nature rendered by the husband were partly for his own benefit and only partly for the benefit of the injured wife, it is difficult to disentangle the domestic duties he performed. Somebody had to clean the house and cook the meals. Whilst allowance may be made for the fact that some ironing, washing and other duties were not specifically for the wife's needs, these must be considered marginal. … Here, the needs were the commingled needs of husband and wife, but no less the needs of the wife because they were in some cases mutual."
That approach was approved by McHugh J in CSR Ltd v Eddy [2005] HCA 64; 226 CLR 1, a case where the male worker was injured, at [115]: "To the extent that [the injured plaintiff] took pleasure in gardening and attending to the car, he would be entitled to damages for loss of amenity and enjoyment of life. To the extent that his injury prevented him from performing these tasks and necessitated the provision of services from another person, there is no reason why he would not be eligible for Griffiths v Kerkemeyer damages at the market rate for those services. The same is true in relation to the domestic duties that he had performed around the house."
CSR Ltd v Eddy denied the right of an injured plaintiff to recover an amount on account of domestic assistance he would have provided to his wife who suffered from osteoarthritis (so-called "Sullivan v Gordon damages"). However, the majority (Gleeson CJ, Gummow and Heydon JJ) appear to have treated both Cummings and Hodges as permitting a form of Sullivan v Gordon damages, namely damages for the benefit of a third party to whom the injured plaintiff would have provided services: at [53], fn (179). The passage from McHugh J set out above reflected his view that the plaintiff's general damages could reflect work done for others as an element of his loss of amenity and enjoyment of life.
These observations are relevant by way of background to the current statutory scheme.
The trial judge treated the claim with respect to domestic assistance as covered by s 15 of the Civil Liability Act 2002 (NSW). That approach was erroneous: s 15 does not apply to motor accidents - Civil Liability Act, s 3B(2). However, s 15B does apply to motor accidents: s 3B(2)(a1). That section provides for the court to award damages to a plaintiff for loss of the plaintiff's capacity "to provide gratuitous domestic services to the claimant's dependants": s 15B(2). Dependants include the immediate family (spouse and children) who are "wholly or partly dependent on the claimant at the time that the liability … arises": s 15B(1) dependants (a). However, it is necessary to distinguish between damages awarded for such a loss of capacity to provide services to dependants and damages for "gratuitous attendant care services" (which are dealt with in s 15 of the Civil Liability Act) and concern services provided to the plaintiff: thus s 15B(10) provides: 15B Damages for loss of capacity to provide domestic services … (10) Damages may not be awarded if they can be recovered as damages for attendant care services Damages may not be awarded to a claimant under this section in respect of any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants if (and to the extent that): (a) the claimant could recover damages for gratuitous attendant care services (within the meaning of section 15) in respect of the same injury that caused the loss, and (b) the provision of such attendant care services to the claimant also resulted (or would also result) in the claimant's dependants being provided with the domestic services that the claimant has lost the capacity to provide.
That limitation refers expressly to such services "within the meaning of section 15"; in relation to a motor accident, damages for attendant care services are regulated by s 141B of the Motor Accidents Compensation Act. The phrase "attendant care services" is defined, for the purposes of that Act, in s 3, in terms which do not mirror precisely the definitions in s 15 of the Civil Liability Act. Nevertheless, the two statutes must be read together as a scheme (not an exclusive code) regulating the award of damages with respect to motor accidents. They should be read so as to avoid the award of double compensation for the same loss. However, while CSR v Eddy denied the legitimacy of an award to compensate "household loss", there will be many circumstances where no clear line can be drawn between services required by the injured plaintiff and those which benefit family members. It is not necessary to inquire whether a plaintiff who lives in a house with two bathrooms uses both, or could reasonably confine herself to one. Where a service is reasonably required by the plaintiff, which is likely to cover the cleaning of the house in which she lives, the benefits to other members of the household may be disregarded. But the statutory schemes require that a plaintiff identify and establish the basis on which a particular element of an award is sought.
Both s 15B and s 141B impose temporal thresholds on any award for the losses to which they apply involving the elements of intensity (six hours per week) and duration (at least six consecutive months): s 15B(2)(c) and s 141B(3).
In the present case, the trial judge found that the intensity requirement was not satisfied and, accordingly, no amount should be awarded for gratuitous domestic assistance. That finding was not affected by the erroneous reference to s 15 of the Civil Liability Act, which includes a similar restriction.
Even if the additional cleaning and domestic services, partly for the benefit of the family, were included, it is by no means clear that the threshold would be reached. In any event, that approach is not in accordance with the authority of Allianz Australia Insurance Ltd v Ward [2010] NSWSC 720; 79 NSWLR 657 (Hidden J). Mr Ward had claimed an amount for gratuitous domestic services for himself and also for his loss of capacity to care for his children. Hidden J stated at [8]: "These are distinct, albeit related, heads of damage, each governed by statute. Mr Ward's claim in respect of gratuitous care afforded to himself was subject to s 128 [now s 141B] of the [Motor Accidents Compensation Act], dealing with compensation for the value of 'attendant care services'. … His claim for loss of capacity to provide services to his children was subject to s 15B(2) of the Civil Liability Act 2002, which is concerned with an award to a claimant in respect of loss of capacity to provide gratuitous domestic services to his or her dependants."
The judge then noted that each provision placed limitations upon an award of damages by reference to the intensity and duration requirements referred to above. After identifying the manner in which the claims assessor had combined the various services, Hidden J noted that the statutory provisions were distinct and continued at [17]: "Claims under them must be separately assessed, with an eye to the limitations upon an award imposed by each provision. That includes the 6 hour/6month threshold, which must be applied to each claim. The statutory requirements are not met by the application of that test in some global way to the two claims, viewed in combination."
It follows that commingling, where the elements are severable, is an impermissible approach with respect to claims for gratuitous assistance. (Although the decision in Allianz v Ward has been referred to by this Court on at least two occasions, the correctness of that analysis has not been addressed: see Hill v Forrester [2010] NSWCA 170; 79 NSWLR 470 at [38] (Handley AJA); Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 83 NSWLR 302 at [62].) While the submissions of the plaintiff were inconsistent with this approach, the reasoning of Hidden J was not directly challenged and, there being no reason to doubt its correctness, should be accepted and applied. Although the plaintiff complained that the approach was inconsistent with that adopted by this Court (Allsop P, Campbell and Meagher JJA agreeing) in Coles Supermarkets Australia Pty Ltd v Haleluka [2012] NSWCA 343 at [50] and [54], the issue was quite different. The passage relied on in Haleluka merely identified the need to make an adjustment with respect to the evidence to allow for the fact that the house the plaintiff occupied was not as large as that on which the calculation was based and to exclude tasks which she would not have done in any event.
The plaintiff's claim for gratuitous domestic assistance in the present case turned on acceptance of her evidence that her husband undertook 1.5-2 hours per day performing the household tasks formerly performed by her: at [40]. That, the plaintiff noted, supported a claim in excess of seven hours per week. The claim at trial was for seven hours per week: at [39]. Once the tasks were divided between services to the plaintiff and assistance with care of her dependant children, it is apparent that neither claim would rise above six hours per week. As the children grew older, there may well have been some diminution in the time required of the parents: at least, the case presented did not provide a basis for a finding that future services would be at an increased level of intensity. The judge accepted she could carry out non-strenuous activities, such as making lunches.
There is no reason to interfere with the rejection by the trial judge of the claim for gratuitous domestic services.

Commercial services

The second basis of the challenge to the assessment of domestic care was the rejection of the claim for services of commercial providers in the future. The temporal limits did not apply to such a claim. However, the acceptance of such a claim must rest on a finding that such services would at some point be availed of in place of the gratuitous services. (This element of damages is unusual because it refers not to the plaintiff's tortiously caused disability or incapacity, but the means by which she will address it: this factor follows from the differential approach required by statute to an assessment of a claim for gratuitous services.)
The judge rejected the plaintiff's express evidence that she would pay for such services in the future: at [56]. Her reason for wishing to pay for such services was that her husband was "a busy man and he pulls a lot of hours right now, and I think it's unfair for Alan for me to continue to ask him to do stuff that I normally would be doing." The judge stated that he was "not persuaded by this evidence that there is any likelihood that Mr White will, at any time in the future, cease providing services to Mrs White": at [57]. He further stated at [58]: "Even if the test were whether it was reasonable that the services be procured on commercial terms I would hold that in the circumstances that test was not satisfied."
What the judge intended by the last observation is not entirely clear: the need for the services must be shown to have been caused by the injury and the services must be shown to be reasonably necessary to make good the incapacity caused by the injury. Beyond that, the test is whether the plaintiff might avail herself of commercial services in the future.
At least in this Court, the plaintiff asserted error on the part of the trial judge in failing to adopt the approach to the last question identified in the joint reasons of Mason CJ, Toohey and McHugh JJ in Van Gervan v Fenton [1992] HCA 54; 175 CLR 327 at 336. The reasoning in question was not directed to the likelihood that commercial services would be availed of, but rather the reason for assessing the value of gratuitous services by reference to the market rates for such services, rather than the loss to the gratuitous provider. In any event, the passage relied on in the joint reasons stated: "The task of reliably determining whether a person will continue to provide personal services on a voluntary basis is much more difficult than the task of determining the traditional types of hypotheticals which come before the courts in damages cases, such as whether a plaintiff is likely to obtain employment or whether a medical condition is likely to improve or worsen. The relationship between the parties may end for any of the myriad reasons which bring about the end of relationships. But the predictability of a relationship continuing in this class of case is made more difficult than usual by the effect that the plaintiff's condition and needs have or may have on the emotional needs of those involved in caring for him or her. There is also the prospect that the care provider will not reveal to the court his or her true feelings about continuing to provide the services even in cases where the provider is conscious of those feelings."
The evidence with respect to household domestic tasks was, as a proportion of the plaintiff's evidence, quite extensive. It is true that the questions with respect to obtaining commercial assistance were brief, but the answers do not appear to have been directly challenged in cross-examination, although the broad topic was quite extensively tested by the cross-examiner.
Mr White gave evidence but was not asked about use of commercial assistance. The cross-examination as to his assistance with domestic chores focused on the contribution made by the family cat to the need for vacuuming.
The trial judge did not give a specific reason for rejecting the plaintiff's evidence: rather, he appears to have applied the following test, which was not entirely subjective, at [55]: "However the plaintiff must establish that a need for commercial assistance is likely to arise in the future after the availability of gratuitous assistance ceases (Miller v Galderisi [2009] NSWCA 353)."
It is necessary to refer to the passages in Miller v Galderisi, as to the proper approach to a claim for damages for commercial domestic assistance, a topic dealt with at [14]-[25]. It is true that the Court stated that it was "not appropriate in this case to simply pluck a figure out of the air because there is a remote, though not entirely fanciful, chance of the need for commercial domestic assistance in the future": at [24]. However, that statement was made in a context where the plaintiff had been in receipt of gratuitous assistance prior to, and was at the time of, trial and the Court accepted that there was "no evidence that as a result of the injury suffered …, or indeed for any reason, he required, or would require, commercial domestic assistance": at [14]. The Court also held that there was "no evidence that this gratuitous assistance would cease at some time in the future": at [15]. However, the Court stated at [18]: "There is no reason in principle why, if the evidence justifies it, damages may not be awarded in respect of a need for commercial domestic assistance likely to arise in the future after the availability of gratuitous assistance ceases."
After considering a number of variables relevant to any such assessment, the Court then referred - at [22] - to the necessary exercise as "a form of speculation guided by knowledge of the plaintiff's past and expectations, derived from general experience, as to the future", adopting the approach to contingencies identified by the High Court in Malec at 640 and 643.
Although it is not entirely clear what standard the trial judge was applying by reference to what was "likely" and whether there was any "likelihood", it seems that he was applying a more definitive test than that required by Malec with respect to future contingencies. Further, as is clear from the general assessment of the evidence in Miller v Galderisi undertaken by this Court at [20]-[21], it would be wrong to place too much weight on the existence or absence of direct evidence of intention. It was open to the trial judge to place limited weight on the plaintiff's expression of intention, although the fact that it was not challenged in cross-examination meant that it should not have been dismissed out of hand without reasons being given. It is also true that the plaintiff's case was not helped by her failure to adduce evidence from her husband as to whether, if funds were available, he would have undertaken less household cleaning, in favour of a commercial service.
What was required was consideration of the family circumstances, including the fact that Mr White was self-employed and apparently busy; that his wife was unable to do heavy cleaning and hanging out clothes; and that cleaning services are not the kind of personal domestic assistance which one spouse may prefer to obtain from another. Rather, they are services which are readily available and availed of by those who can afford them and who are otherwise engaged in remunerative employment or have a disability.
It may be that the approach adopted by the trial judge applied correct principles and gave consideration to all the relevant material: however, that does not appear from the reasons. I would accept that there was error in the test derived from Miller v Galderisi and the failure to apply the essentially speculative exercise required by Malec.
It is clear from the course of submissions that the claim for commercial assistance did not include her own personal care or making lunches for the children but rather was limited to the heavier tasks which she used to, but could no longer, do. Although she said she did mow the lawn "sometimes" and did gardening, she also agreed that her husband did that work. The evidence as to what she could not do after the accident involved cleaning the floors, vacuuming, sweeping, mopping, "heavy cleaning of the bathrooms and any heavy kitchen cleaning" and placing clothes on the line.
Counsel accepted that the claim for seven hours a week included work done for the children. Although Mr White said that he did an unusually high volume of clothes washing, it may be assumed that that would reduce when the children were older.
Her counsel at trial accepted a calculation at the rate of $25 per hour; a reasonable allowance for assistance with cleaning and washing would be three hours per week. That would provide an allowance of $75 per week, over a period from the present (the plaintiff being 44 years of age), to throughout her life, but, say, for 30 years. Despite the abbreviated term, it is appropriate to reduce the amount by 15% for vicissitudes; although there is a significant chance that commercial assistance will not be obtained, a greater reduction would be self-fulfilling. The amount so calculated is, in round figures, $52,400. I would allow that amount by way of future domestic assistance.

Conclusion

For the reasons set out above, the appeal should be allowed in part and the judgment in favour of the plaintiff increased by an amount of $76,100. The amount for future domestic assistance should not carry interest prior to the date of this judgment. Nor, given the amount involved, should any allowance be made for pre-judgment interest on the balance.
The judgment given in the District Court should be set aside and in lieu thereof the plaintiff should have judgment for $278,250.
The affidavit of the plaintiff's solicitors in support of the existence of a right of appeal without leave identified the amounts in issue as being in excess of $500,000. On this basis, the plaintiff has been largely unsuccessful on the appeal. On the other hand, it may be said that she has increased her damages by approximately one-third and in that sense has had a significant degree of success. Assuming there are no outstanding offers of compromise, she should be granted 50% of her costs in this Court. If there are offers of compromise outstanding, the Court would expect that the parties would come to some agreement as to the appropriate order as to costs. The order proposed below can, of course, be varied by consent.

Orders

The Court should make the following orders: (1) Allow the appeal and set aside the judgment given in the District Court on 10 October 2013. (2) In lieu thereof, give judgment for the plaintiff against the defendants in the amount of $278,250. (3) Order that the respondents pay 50% of the appellant's costs in this Court.
MEAGHER JA: I agree with Basten JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 March 2015

Motor Accident Compensation Act 1999(NSW)

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