Woolworths Limited & Anor. v. Lawlor [2004] NSWCA 209

CATCHWORDS : DAMAGES - Assessment - Non-economic loss - Need to demonstrate appealable error - Damages for gratuitous attendant care services - s.15 of Civil Liability Act 2002 (NSW) - Construction - Meaning of "solely because of the injury to which the damages relate". LEGISLATION CITED : Civil Liability Act 2002 (NSW) CASES CITED : Jones v. Bradley [2003] NSWCA 81 Reece v. Reece (1994) 19 MVR 103 Woolworths Limited (First Appellant) PARTIES : Jones Lang Lasalle (NSW) Pty. Limited (Second Appellant) Hilda Lawlor (Respondent) FILE NUMBER(S) : CA 40673/2003 COUNSEL : J. Maconachie QC (Appellants) M. Cranitch SC/M. Inglis (Opponent) SOLICITORS : Herbert Geer & Rundle (Appellants) Commins Hendriks (Wagga Wagga) (Respondent)

LOWER COURT District Court JURISDICTION : LOWER COURT DC 78/2002 FILE NUMBER(S) : LOWER COURT Sidis DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40673/2003 DC 78/2002

BEAZLEY JA HODGSON JA TOBIAS JA

24 June 2004 WOOLWORTHS LIMITED & ANOR. v. LAWLOR

Headnote 1 The respondent fell due to the malfunction of a moving walkway in a shopping complex owned and occupied by the appellants respectively for which she claimed damages. At trial liability was admitted by the appellants and the matter proceeded for assessment of damages only. 2 The appellants appealed against the award of non-economic loss, assessed at 30% of a most extreme case; and against the award for past and future domestic assistance. HELD (per Beazley JA, Hodgson and Tobias JJA agreeing): 3 (i) The assessment of non-economic loss is an evaluative process in respect of which minds may differ. The award made by the trial judge was not outside an appropriate discretionary range.

(ii) In order for the trial judge's assessment of non-economic loss to be disturbed an appellant must demonstrate appealable error.

(iii) The trial judge took into account the extent of household services provided by the respondent's husband for his own benefit and only awarded damages for services that would not have been provided but for the injury as required by s.15(2)(c) of the Civil Liability Act 2002 (NSW).

(iv) On the evidence the need for the attendant care services provided by the respondent's husband for which an award was made, arose solely because of the injury sustained by the respondent to the award made in accordance with s.15(2)(b). (v) (Obiter) Where the need for attendant care services has more than one cause then, without deciding the preferred construction of s.15(2)(b), damages may be awarded for that portion that is attributable solely to the accident provided the requirements of the Act are otherwise satisfied.

1. Grant an extension of time for the filing of the Notice of Appeal.

2. Direct that the appellants file a Notice of Appeal within 3 days of the date of the making of these orders.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40673/2003 DC 78/2002

BEAZLEY JA HODGSON JA TOBIAS JA

24 June 2004 WOOLWORTHS LIMITED & ANOR. v. LAWLOR Judgment 4 BEAZLEY JA: The appellants were the defendants in proceedings brought by the respondent in which she claimed damages for injuries sustained by her on 19 September 2001 when she fell due to the malfunction of a moving walkway in the Marketplace Shopping Centre, Wagga Wagga, owned and occupied by the first and second appellants respectively. Liability was admitted at trial and the matter proceeded before Sidis DCJ for assessment of damages only, which fell to be assessed under the Civil Liability Act 2002. Her Honour awarded damages in the sum of $219,536.60. The appellants appeal against two components of the award of damage: first, against the award of non-economic loss which her Honour assessed at 30% of a most extreme case; and secondly, against the award of $126,453.60 for past and future domestic assistance. 5 There is no dispute as to the nature and extent of the respondent's injuries. The only question is whether, having regard to the injuries sustained, those two components of the damages award were excessive. 6 The respondent was 56 years old at the time of injury. She was married with three adult sons. She was employed by the Attorney-General's Department as a court officer, having been employed in that capacity for eight years (ten years as at the date of hearing). She had in the years prior to her employment with the Attorney-General's Department been employed in a number of different jobs, the detail of which is not relevant to her claim. The respondent had also been very active in community life in Wagga Wagga, engaging in a number of voluntary activities. 7 The trial judge found that as a result of the accident the respondent had suffered aggravations of pre-existing degenerative conditions in both her neck and her lower back which had left her "with continuing symptoms of some significance". The respondent herself described her condition as involving pain in her low back and coccyx area and that she had no pain-free days although her level of pain varied depending upon the particular activities that she undertook. She also had pain and discomfort in the left side of her neck and shoulders. That pain, although not constant, was frequent. This evidence was accepted by her Honour. 8 Her Honour accepted that as a result, the respondent needed to resort frequently to anti-inflammatory and pain-killing medication. Her Honour also found that the respondent suffered a significant interference with her amenity of life to the extent that "her active and fulfilling life has now ceased" with the exception of the respondent's participation in Wagga Wagga's Sister City Programme. It also appears that her Honour accepted that for a period after the accident the respondent was depressed, and that whilst she might have had a predisposition to stress or depression that predisposition "was not assisted by the current incident". 9 Although the respondent had suffered a major interference in her general amenity of life, she had been able to return to work and as the respondent was on leave at the time of the incident, she had suffered no loss of income as a result of her injuries.

Award of non-economic loss 10 In making the award of non-economic loss, her Honour said: "The principles of the decision in Reece v. Reece (1994) 19 MVR 103 were not raised in argument, although I have taken into account the plaintiff's age in assessing her injuries and ongoing disabilities at thirty per cent of a most extreme case." 11 Reece's case was an appeal involving a 64 year old female plaintiff who was injured in a motor vehicle accident. She suffered extensive injuries and was left with disabilities which were such that she had lost much of the efficient use of her right wrist, including the right thumb and two fingers. She was also affected by pain and weakness which affected her ability to carry out the myriad of daily tasks that are carried out with the dominant hand. The plaintiff also had an injury to her left thumb and partial loss of the efficient use of the left wrist. It was likely that she would suffer degenerative and arthritic changes. She too, like the respondent in this case had, pre-accident, led an active personal life which was substantially impaired as a result of the on-going effects of her injuries. The trial judge awarded damages for non-economic loss, assessed at one third of a most serious case. 12 Handley JA, with whom Clarke and Sheller JJA agreed, held that a finding of 33 1/3% of a most extreme case represented "a wholly disproportionate assessment of the … plaintiff's loss". His Honour continued: "The difficulty, in my opinion, with his Honour's assessment is to reconcile it with the assessment that might properly be made in the case of a much younger woman, say thirty, who before her injury had a similar range of interests and hobbies but had young children to help bring up and who of course, faced a much longer period during which she would experience the pain, the disabilities and the progression of her condition."

His Honour held that if that hypothetical comparison was made, it was not possible to support the trial judge's finding that the plaintiff should be assessed as being one-third of a most extreme case. The Court substituted an assessment of twenty-two and one-half percent of a most extreme case. 13 This case, of course, differed in a significant respect from Reece in that there was a substantial age difference between the respective plaintiffs. In Reece, the plaintiff was 64 years old at the time of accident. In this case the plaintiff was 56 years old. The life expectancy of each thus differed markedly. Mrs. Reece's life expectancy was, at the date of trial, 18 years, the accident having occurred 2 years previously. In this case, the Court was informed by senior counsel for the respondent that the respondent's life expectancy was 28.58 years. There was a faint protest from senior counsel for the respondent at this information being placed before the Court in this way. However, as I understand it, this Court would have been entitled to have regard to the life tables itself in considering the matter. But in any event, the respondent's life expectancy can be ascertained from the Schedule of Damages which were handed to her Honour by the parties for the purpose of calculating the judgment sum. The Schedule of Damages was part of the material before this Court on the appeal. 14 The injuries suffered by the plaintiffs in the two cases were quite different, although both were serious. The seriousness of the injuries and their on-going effect were matters to be assessed in each case, having regard to the plaintiff's personal circumstances. In this case, the injuries were aggravation injuries to the respondent's spine from her neck down to her coccyx. Those injuries had the effect on the respondent and impact upon her lifestyle as found by her Honour. It is necessary for the appellants, in order for the trial judge's assessment of non-economic loss to be disturbed, to demonstrate appealable error. The assessment of general damages is an evaluative process in respect of which minds may reasonably differ. Senior counsel for the appellants termed it an impressionistic process, although that terminology may not accurately reflect the process of judicial evaluation involved. Senior counsel submitted however, that the purpose of the Civil Liability Act 2002 was to achieve moderation in verdicts and that an assessment in the order of fifteen to twenty percent of a most extreme case would more than adequately have compensated the respondent for the injuries which she sustained. 15 In my opinion an assessment in that order would be too low. The plaintiff has significant on-going pain on a daily basis, she requires on-going medication and she has had a significant interference with nearly all aspects of her personal life. Her life expectancy is almost another thirty years and there was no medical evidence to the effect that her condition was likely to improve. Looked at another way, her life expectancy is such that she still has about a third of her life to live. In my opinion, the appellants have failed to demonstrate that her Honour's assessment is excessive given the type and expected duration of the respondent's injuries. Accordingly I would dismiss this ground of appeal.

Damages for gratuitous attendant care services 16 Her Honour made the following award for domestic assistance. She allowed fifteen hours per week for the eight weeks immediately after the accident and then nine hours per week for the next ninety-four weeks. The combination of these two allowances made provision for domestic assistance up until the date of trial. For the future, her Honour allowed nine hours per week for a further two years and then seven hours per week for twenty-four years, thus making an allowance for the balance of the respondent's life expectancy. 17 In making the award, her Honour accepted the respondent's husband's evidence as to the tasks to which he now attended, estimating the time spent in tasks he now undertook and which he had not performed prior to the accident. Her Honour calculated that work at twenty hours per week. She reduced that assessment by half to take account of the extent to which Mr. Lawlor would have provided those services in any event, given that he was retired and the respondent had continued to work. The calculation was further reduced to take into account that Mr. Lawlor perhaps performed those tasks more slowly than someone with more experience in undertaking household chores. Her Honour then made another deduction of one hour to take account of the fact that on occasions Mr. Lawlor combined shopping with driving the plaintiff to work. 18 When dealing with the allowance for future assistance, her Honour deducted a further two hours to take account of the fact that an allowance had been made for future medical expenses for counselling for the respondent which, it was hoped, would assist her to overcome the fears which she had in driving post accident. Accordingly, she reduced the allowance for domestic assistance to seven hours per week after two years. It was apparent that her reason for doing so was that with counselling over such a period, it was likely that the respondent's reliance upon her husband to drive her to and from work and to other activities would lessen. 19 In their written submissions, the appellants challenge the award for gratuitous care on the basis that her Honour failed to take into account that the tasks were performed, not for the benefit of the respondent, but for the benefit of the household. It was submitted, that, in effect, her Honour had included amounts that compensated for the domestic work Mr. Lawlor performed for his own benefit in addition to allowing damages to compensate the respondent for her need or assistance. In support of this argument the appellants relied upon the express provisions of s.15(2)(c) of the Civil Liability Act 2002 and Jones v. Bradley [2003] NSWCA 81 at [156]-[159]. As I understand the appellants' argument under this head, it was that the evidence did not satisfy the statutory requirement that the respondent was only entitled to damages for the gratuitous provision of attendant care services if those services would not be provided to the claimant but for the injury. In other words, the appellants contended, that the tasks that Mr. Lawlor was performing accrued to his benefit as much as they did to the benefit of the respondent. 20 In my opinion, her Honour took into account the extent to which Mr. Lawlor provided services which fell within the statutory prescription and made the appropriate deductions for the amount of household services that he would have been providing in any event even if the accident had not happened. In my opinion there was no error in her Honour's approach or in the assessment she made given the uncontested evidence in the case. 21 In his oral submissions, senior counsel for the appellants raised, for the first time, a further discrete challenge to the award of attendant care services, namely, that the respondent was not entitled to any award because she had not established that her need for such services arose "solely because of the injury". As this challenge raises the question of the proper construction of s.15 it is necessary to look at the statutory regime that now governs the award of damages under the Civil Liability Act. 22 The Act, which is taken to have commenced on 20 March 2002, is "An Act to make provision in relation to the recovery of damages for death or personal injury caused by the fault of a person …" 23 Its purpose is to provide a statutory regime for the award of damages resulting from negligence, "regardless of whether the claim was brought in tort, in contract, under statute or otherwise": s.5A. 24 Relevant for present purposes is the definition of "harm" and "personal injury". In s.5 "harm" is defined to mean: "harm of any kind, including the following: (a) personal injury or death … (c) economic loss."

" Personal Injury " is defined to include " … (b) impairment of a person's physical or mental condition." 25 The award of personal injury damages is specifically governed by Pt. 2. In s.11 "injury" is defined as "personal injury" and includes the same matters as are defined in s.5. 26 Damages for gratuitous attendant care services are provided for in s.15, which is in the following terms: "(1) In this section: attendant care services means any of the following: (a) services of a domestic nature, (b) services relating to nursing, (c) services that aim to alleviate the consequences of an injury. Gratuitous attendant care services means attendant care services: (a) that have been or are to be provided by another person to a claimant, and (b) for which the claimant has not paid or is not liable to pay. (2) No damages may be awarded to a claimant for gratuitous attendant care 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. (3) Further, no damages may be awarded to a claimant for gratuitous attendant care services if the services are provided, or are to be provided: (a) for less than 6 hours per week, and (b) for less than 6 months. …" 27 Senior counsel for the appellants submitted that the respondent had not established an entitlement to damages for such services because she had not satisfied the provisions of sub-s.2(b). The argument, as I understand it, was that the respondent suffered from pre-existing degenerative changes and there was medical evidence (although the appellant did not identify the medical report that was relied on for this argument) that those degenerative changes may have remained asymptomatic but for the accident. It followed that a converse inference could, and it would seem on the argument should, have been drawn that those pre-existing degenerative changes may have become symptomatic. It was submitted, therefore, that as the injury had impacted upon a pre-existing condition, it could not be said that the need for the gratuitous attendant care services arose "solely" because of the injury. 28 As developed, it seems there were two aspects of the argument. One argument proceeded as a matter of construction of the section and the second on the evidentiary framework which I have just outlined. I will return to the latter of these arguments shortly. Insofar as the argument proceeded in respect of the proper construction of the section, it was submitted that sub-s.2(b) only operated where there was no other cause or reason why the gratuitous services needed to be provided. An example on the appellant's argument in which an award under s.15 would be precluded was where a plaintiff with pre-existing symptomatic degenerative changes already required assistance of say five hours per week at the time of an accident. If, as a result of an accident causing an aggravation of those pre-existing changes, it was found that such a person needed more attendant care services, say 15 hours per week, there was no entitlement under s.15 because of the operation of s.15(2)(b). In other words the need for attendant care services had more than one cause. The opposing argument and one which was adopted by senior counsel for the respondent, was that in such a case, the plaintiff would be entitled to an award of ten hours for gratuitous attendant care services because the need for those ten hours had arisen "solely because of the injury to which the damages relate". This construction derives directly from the definition of "injury" which includes "impairment of a person's physical or mental condition". 29 Although the matter is not without difficulty, I am inclined to the view that the second of these constructions is correct. It derives from a construction of the Act as a whole. In my opinion, such construction does not do any violence to the express words of the section. Senior counsel for the appellant argued that if such a construction was intended some word other than "solely" would have been used. He postulated that "substantially" would have been a likely candidate. In my opinion, that argument reinforces the likelihood that the second construction is correct. If the word "substantially" were used, instead of the word "solely", then the section would have directed the Court to make an assessment whether the need for the services arose substantially or mainly because of the injury. If the need arose substantially because of the injury a plaintiff would be entitled to an award notwithstanding that portion of the need was attributable to some other cause. So in the example given in the previous paragraph, a plaintiff would be entitled to an award for 15 hours of attendant services, not 10. 30 But in any event, it is not strictly necessary to determine the construction of the section for the purposes of this case. The evidence was that the plaintiff's need arose because of the injury. True it was that the injury itself was an aggravation, but there was no medical evidence that the plaintiff's pre-existing degenerative condition would have, on the balance of probabilities, brought her to the same condition at some stage in the future. Accordingly, her Honour was entitled, and indeed it was probably the only finding available on the evidence, to find that the respondent's need for gratuitous attendant care services arose solely because of the injury. 31 It follows, in my opinion, that the appeal should be dismissed with costs. 32 The matter came before this Court on the basis that the Summons for Leave to Appeal would be heard simultaneously with the argument on the appeal. It became apparent during the course of argument that leave was not required, as the amount in issue was in excess of $100,000.00. Accordingly, the matter proceeded before this Court on the basis that it was an appeal as of right. 33 There was a further technical defect in the appellant's case in that the Summons for Leave to Appeal itself was filed one day out of time. This should have been brought to the Court's attention as an extension for time to file the Summons would have been required had the matter been one requiring leave. Although leave to appeal is not required, the appeal is out of time and an extension of time for that is necessary. In the normal course, the extension of time should have been sought in a Notice of Motion supported by Affidavit. Notwithstanding this omission, as the failure to take steps to initiate the appellate process was only one day late an extension of time ought to be granted. 34 The Court does not have before it however, a Notice of Appeal. As proceedings were commenced by way of an Ordinary Summons for Leave to Appeal there is only a draft Notice of Appeal. A Notice of Appeal should be filed, and I propose directions to take account of that. 35 Accordingly I propose the following Orders;

1. Grant an extension of time for the filing of the Notice of Appeal.

2. Direct that the appellants file a Notice of Appeal within 3 days of the date of the making of these Orders+.

4. The appellants to pay the respondent's costs. 36 HODGSON JA: I agree with Beazley JA 37 TOBIAS JA: I agree with Beazley JA

Last Modified: 08/16/2004 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.