New South Wales Court of Appeal CITATION : Managrave v Vrazalica [1999] NSWCA 242 FILE NUMBER(S) : CA 40115/98 HEARING DATE(S) : 19 March 1999 JUDGMENT DATE : 16 July 1999 PARTIES : George Vincent Managrave v Serifa Vrazalica JUDGMENT OF : Beazley JA at 1; Stein JA at 2; Giles JA at 55 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 7570/97 LOWER COURT JUDICIAL OFFICER : Delaney DCJ COUNSEL : P Garling SC/S Torrington (Appellant) L Morris QC/E Clarke (Respondent) SOLICITORS : Phillips Fox (Appellant) Keddies (Respondent) CATCHWORDS : District Court - MVA - pedestrian hit by vehicle while attempting to cross the road at a busy intersection - negligence - duty of care - standard of care - contributory negligence - quantum of damages - past and future economic loss - past and future domestic care - loss of superannuation ACTS CITED : Motor Accidents Act 1988 (NSW); s 72 Caldwell v Duka, unreported, Court of Appeal, 16 June 1993 March v Stramare (1991) 171 CLR 506 Nominal Defendant v Heath (1998) 27 MVR 302 CASES CITED: Pennington v Norris (1956) 96 CLR 10 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 Stocks v Baldwin (1996) 24 MVR 416 Wyong Shire Council v Shirt (1980) 146 CLR 40 DECISION : Appeal dismissed with costs; Cross-Appeal upheld with costs; By consent order the appellant pay the respondent's costs of appeal and the cross-appellant's costs of the cross-appeal on a solicitor client basis; Verdict and judgment for the respondent of $255,216.00 entered by Delaney DCJ be set aside and a new verdict for the respondent in the sum of $342,794.00 substituted. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40115/98 DC 7570/97 BEAZLEY JA STEIN JA GILES JA Friday, 16 July 1999 George Vincent MANAGRAVE v Serifa VRAZALICA The respondent was injured in a motor vehicle accident on 23 April 1991. She was struck by the appellant's vehicle while attempting to cross the road at the intersection of George and King Streets, Sydney, during peak hour traffic. She sustained severe injuries and suffers from continuing disabilities as a result of the accident. Delaney DCJ found the appellant negligent and made an allowance of 20% for the respondent's contributory negligence. A verdict and judgment was entered in the respondent's favour in the sum of $255,216.00. On appeal , it was argued that: 1. His Honour erred in finding the defendant negligent; 2. Alternatively, his Honour erred in making an allowance of only 20% for the respondent's contributory negligence. On cross-appeal , it was argued that 1. His Honour erred in his allowance for past and future economic loss; 2. His Honour erred in respect of failing to allow any damages for loss of superannuation; 3. His Honour erred in respect of his allowance for past and future domestic care. Held: On appeal : Delaney DCJ was not in error in finding the appellant guilty of negligence. Similarly, his Honour's finding on contributory negligence was open on the evidence and should not be disturbed. On cross-appeal : His Honour was in error in his assessment of past economic loss and a substituted allowance of $139,616.80 was made in lieu of $100,000.00 determined by his Honour. His Honour was not in error in his allowance for future economic loss as his findings were open on the evidence. His Honour erred in failing to allow any damages for loss of superannuation and an allowance of $9,931.00 was made. With respect to past domestic care, his Honour's findings were open on the evidence, save in one respect which related to a distinct time period. The allowance was recalculated and a substituted amount of $18,452.00 was determined in lieu of $14,494.00 made by his Honour. With respect to future domestic care, his Honour erred in his allowance and a substituted allowance of $112,562.00 was determined in lieu of $48.679.00 made by his Honour. Verdict and judgment for the respondent in the sum of $255,216.00 entered by Delaney DCJ was set aside with a new verdict in the sum of $342,749.00 substituted. ORDERS 1. Appeal dismissed with costs. 2. Cross-appeal upheld with costs. 3. By consent order the appellant pay the respondent's costs of appeal and the cross-appellant's costs of the cross-appeal on a solicitor client basis. 4. Verdict and judgment for the respondent of $255,216.00 entered by Delaney DCJ be set aside and a new verdict in the sum of $342,749.00 substituted. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40115/98 DC 7570/97 BEAZLEY JA STEIN JA GILES JA Friday, 16 July 1999 George Vincent MANAGRAVE v Serifa VRAZALICA JUDGMENT 1 BEAZLEY JA: I agree with Stein JA. 2 STEIN JA: Introduction 3 The appellant, George Managrave, appeals from a judgment of Delaney DCJ delivered on 18 February 1998. By cross-appeal, the respondent, Serifa Vrazalica, appeals on quantum of damages for past and future economic loss, loss of superannuation and past and future domestic care. Brief Facts 4 At approximately 8.30 am on 23 April 1991 the respondent attempted to cross the road at the intersection of George and King Streets, Sydney, during peak hour traffic. She had alighted from a bus in George Street and, after visiting a fruit stall, headed towards her workplace in the Mid City Centre. Stepping from the western footpath of George Street, the respondent walked through two lanes of stationary traffic. The evidence indicates, although there was no finding by the trial judge, that she stopped upon reaching the end of the second of three lanes and looked to her left towards the King Street traffic lights. The lights were red and, upon taking two small steps to cross the third lane (which was, at the time, a right hand turn lane into King Street) she was hit by the appellant's vehicle. The vehicle was estimated to be travelling at a speed of 20 - 30 kph upon entering the right hand turn lane. 5 While the respondent was acting in accordance with the directions given by the traffic lights, she did not make use of the available pedestrian crossing. Both the appellant and the respondent were familiar with the intersection of George and King Streets. 6 The accident was witnessed by Constable O'Brien. He was positioned in the second lane of traffic in George Street when the respondent walked in front of his stationary vehicle. 7 The respondent was 57 years of age at the date of the accident. She sustained severe injuries including a fractured right tibia. The respondent suffers from continuing disabilities as a result of the accident. Negligence 8 Counsel for the appellant, Mr Garling SC, submits that his Honour erred in finding the appellant negligent. He argues that the appellant had seen the respondent prior to the accident and that, when examining the circumstances of the appellant's driving, the appellant was not negligent. It was not disputed that the appellant owed the respondent a duty of care, rather it was contended that a breach of that duty did not occur. 9 The appellant gave evidence that he had first seen the respondent in the second lane of traffic in George Street. To his recollection she was stationary. He asserted that he only momentarily turned his attention away from the respondent to look at the King Street traffic lights to ascertain whether he was able to make a right hand turn into King Street. This was submitted to be in accordance with his obligation to also keep a proper lookout for other matters which required his attention as a driver. Further, it was submitted that the respondent only momentarily failed to cover the brake at a point when he was considering his course of travel within the right hand turn lane. There was claimed to be no reasonable measure that the appellant could have taken to avoid hitting the respondent. The speed at which the appellant's vehicle was travelling, it was contended, was not excessive. The fault of the accident lay with the respondent because of her recklessness and indifference to the way she crossed the road. She failed to look to her right and stepped into a position of danger. 10 The respondent did not see the appellant's vehicle approaching as she crossed the road. She later made an admission in hospital that she believed the accident to be her fault and that she should have crossed at the pedestrian crossing. In relation to the respondent's manner in crossing the road, his Honour made the following findings: The plaintiff agreed that she did not see the defendant's vehicle prior to collision, but I am satisfied that this was not due to the fact that she did not look at all or was recklessly indifferent in the way that she crossed the road. The plaintiff explained during the course of evidence the way that she did cross the road through the first two lanes of stationary traffic. I formed the distinct impression that the way she did it was at an angle, albeit slight, which inclined towards the south of George Street and therefore when she was answering Mr Torrington's questions about whether she looked to the right, that is whether she made a conscious turn to the right to see what was there, she was truthfully answering that she did not because the traffic that was to her right was in her line of vision at all times as she was crossing the road. [Red AB 16] 11 Constable O'Brien gave evidence that he could see the appellant's vehicle approaching the King Street lights in his rear view mirror. The officer said that he expected an accident to occur because of the speed of the appellant's vehicle in failing to slow down upon approaching the intersection. 12 In Caldwell v Duka, unreported, Court of Appeal, 16 June 1993, Kirby P said: The criterion of negligence is the standard required of an ordinarily careful driver in charge of a motor vehicle upon a road in this State. Although not absolute, the duty is a high one. This is so because of the risk of serious injury which almost inevitably follow a collision between a motor vehicle and a pedestrian. The high standard of vigilance and care imposed upon motorists derives from a recognition by law of the fact that, usually, the motorist is in the best position, and has the responsibility, to control events which might lead to a collision between (relevantly) the motor vehicle and the pedestrian. In a number of cases this Court has emphasised that the standard of care of motorists does not extend to avoiding collisions with pedestrians in every conceivable circumstances of the conduct of such persons. In particular, the law does not extend to avoiding impact where a pedestrian has exhibited irrational or clearly careless conduct which disregards his or her own safety and is, effectively, the sole cause of the collision. 13 In Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 - 48 Mason J (as he then was) said that there must be: A consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. 14 Such matters are to be 'balanced out' when determining the appropriate standard of care of a reasonable person. 15 Mahoney P in Stocks v Baldwin (1996) 24 MVR 416 at 420 said: I have stressed that the reasonable person would accept that it is not the duty of a driver so to drive that there is no foreseeable risk of injury to others. To think otherwise would be to ignore the realities of city life. But it is not to be taken from what I have said that risks may be ignored. In the 'balancing' process to which Mason J referred, at least four things are to be borne in mind: the extent of damage that may be done by a driver to a pedestrian; the degree of likelihood that a pedestrian will suddenly come into the path of an ongoing vehicle; the consequent extent of the precautions which a driver must take against that eventuality; and the extent of what a driver is able to do when confronted with such a danger. The damage which a driver may do to a pedestrian is great: the injuries suffered by the present plaintiff show this. This is an important matter when deciding what a driver must do. The inconvenience of driving slower is to be measured against, inter alia, what may be done to a pedestrian if the driver's estimate of the risk is wrong. Pedestrians sometimes act carelessly. I do not mean by this that they do so more often than not. But, in my opinion, they do so with sufficient frequency that a prudent driver would take account of it. The likelihood of that occurring is not a 'far-fetched or fanciful' risk which is to be put aside or discounted. It is something which occurs often enough for the prudent driver to foresee it and take it into account. 16 On the issue of the appellant's liability, Delaney DCJ concluded: I find that the defendant failed to keep a proper lookout, was travelling on the basis of his statement, too fast in the circumstances in which he was then able to see namely the position of the plaintiff on the roadway adjacent to his lane. That is not to say that cars have to stop for every pedestrian on our streets, but it is to say that when the defendant is placed in a position such as the defendant was in this case and notwithstanding the submissions of Mr Torrington to the contrary, I am satisfied that the defendant breached his duty of care, did not keep a proper lookout and it was his failure to watch carefully what was happening that, in my opinion, was the major cause of the accident. [Red AB 18] 17 The duty of care of a driver of a motor vehicle involves a duty to persons who may themselves be careless: March v Stramare (1991) 171 CLR 506. Notwithstanding the respondent's failure to look out for approaching vehicles, his Honour was correct to conclude that such evidence did not justify a conclusion that the appellant was not negligent. The appellant clearly breached his duty of care owed to the respondent. The evidence indicates that after the appellant had first seen the respondent he failed to apply the brakes before diverting his attention to the traffic lights. A reasonable person in the appellant's position would have foreseen that a failure to slow down once he had seen the respondent on the roadway involved a significant and foreseeable risk of injury. The appellant was familiar with the intersection of George and Kings Streets and was aware that it was the habit of many pedestrians to cross George Street outside the pedestrian crossing. The likelihood that a pedestrian would suddenly appear from stationary traffic was high. Further, it was not impracticable for the appellant to have taken evasive action in the circumstances: Nominal Defendant v Heath (1998) 27 MVR 302. It was the duty of the driver to proceed at such a speed so as to be able to stop if necessary. Accordingly, his Honour's finding on liability was open on the evidence and ought not be disturbed. Contributory Negligence 18 Counsel for the appellant submits, in the alternative, that the verdict should have been reduced in a greater proportion than 20% which his Honour allowed for contributory negligence. Such a finding, it was argued, was manifestly inadequate and failed to demonstrate that the preponderance of blame for the accident lay with the respondent. 19 The respondent failed to cross George Street at the available pedestrian crossing and, in doing so, failed to take reasonable care for her own safety. In addition, it would have been more prudent of her to have paid closer attention to where vehicles were coming from in George Street. The respondent clearly contributed to her misfortune by her own negligence or want of ordinary care. In apportioning responsibility for the accident his Honour made the following finding: It is clear that he did not apply his brakes or attempt to slow down at any stage and when he did take evasive action it was far too late. Accordingly, I think that the preponderance for the responsibility of this accident lies on the defendant, but I am satisfied that the defendant has discharged the onus of proof indicating that the plaintiff was a material cause of her own injury and that there should be a finding of contributory negligence against the plaintiff at 20%. [Red AB 19] 20 In Pennington v Norris (1956) 96 CLR 10 at 15 the High Court considered the extent to which damages recoverable by a plaintiff were to be diminished by reason of the plaintiff's contributory negligence. The court stated: The Act intends to give a very wide discretion to the judge or jury entrusted with the original task of making the apportionment. Much latitude must be allowed to the original tribunal in arriving at a judgment as to what is just and equitable. It is to be expected, therefore, that cases will be rare in which the apportionment made can be successfully challenged. 21 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 493 - 494 reinforced the same principle. The court said: A finding on a question of apportionment is a finding upon a 'question, not a principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds': British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201. Such a finding if made by a judge is not lightly reviewed. 22 On a consideration of the circumstances of the present case, his Honour's finding on the issue of contributory negligence was open on the evidence and should, therefore, not be disturbed. It was within the reasonable discretionary range available on the evidence. It follows that the appeal should be dismissed with costs. Cross-Appeal on Damages 23 His Honour entered a verdict of $255,216.00 in the respondent's favour. It comprised the following: Non economic loss $ 80,000.00 Past out-of-pocket expenses $ 16,888.00 Future out-of-pocket expenses $ 20,000.00 Past economic loss $100,000.00 Future economic loss $ 35,000.00 Past domestic care $ 18,452.00 Future domestic care $ 48,679.00 Total $319,019.00 20% deduction for contributory negligence $ 63,804.00 Judgment entered for the plaintiff $255,216.00 24 The respondent challenges the damages assessment in respect of economic loss and domestic care. In addition, she seeks to claim damages for loss of superannuation. Past Economic Loss 25 Counsel for the respondent, Mr Morris QC, submits that his Honour erred in the allowance for past economic loss. The respondent was, at the time of the accident, engaged in two sources of income. She worked as a cook at a coffee lounge and also as a cleaner. Her weekly net earnings totalled $480 (consisting of $330 net from her work as a cook and $150 net from her cleaning job). For 12 years the respondent had pursued both occupations. 26 In respect of past economic loss, it was contended that his Honour was wrong to conclude that after the respondent suffered a myocardial infarct on 26 November 1996, and underwent bypass surgery on 4 April 1997, she would have been unfit to undertake any work until June or July 1997, and thereafter, she would have been only able to undertake restricted work. The respondent argued that his Honour should have made a finding that she was fit to undertake work on a restricted basis from June to July 1997 and that from July 1997 she was fit to undertake unrestricted work. It was contended that a failure to make such a finding explained the low allowance made by his Honour for past economic loss. 27 In coming to the above conclusion it appears that his Honour relied on a report of Dr Davis dated 5 February 1998. The relevant paragraph in the report is as follows: Under normal circumstances I would expect that she would have been fit to undertake restricted work, not requiring any heavy lifting or force from around 4 June 1997 to 4 July 1997 after which time she should have been able to return to unrestricted duties. [Emphasis added] 28 However, it appears that his Honour misread 'unrestricted' as 'restricted'. In this respect he was in error and accordingly, the award needs to be adjusted. From the date of the accident to the date of trial (a period of 6.83 years) the respondent's past economic loss, calculated on a weekly net income of $480.00, amounts to $170,476.80. One year's income of $24,960.00 is to be deducted to reflect the respondent's inability to work for the period following the myocardial infarct. His Honour so found and respondent's counsel does not seek to argue to the contrary. A further deduction of $5,900.00 is to be made to take into account the respondent's earnings as a cooking teacher. Accordingly, the award for past economic loss is $139,616.80 in lieu of $100,000.00 which his Honour awarded. A question arises as to whether this figure should be further discounted for vicissitudes. However, it may be noted that health vicissitudes have already been deducted, and for a period of one year rather than 8 months following the infarct. In addition, not all the vicissitudes are necessarily negative. For example, the respondent's skill, experience and work record as a chef led his Honour to find that she would have no difficulty with employment. Indeed, her post accident employment as a cooking teacher is indicative that she could have earned more than $480 net per week. No further deduction for vicissitudes is necessary. 29 It was further contended that the trial judge erred in assessing past economic loss on the basis of loss of opportunity. The day before the accident the plaintiff had resigned from her job at the coffee lounge. She was, therefore, unemployed as at the date of the accident. The accident, however, occurred when the respondent was on her way to the coffee lounge to discuss with her employer the possibility of restoring her employment. His Honour was not satisfied that the respondent would have recovered her job, notwithstanding his acknowledgment that her excellent work record would suggest that it was likely. Accordingly, his Honour approached the issue of past economic loss on the basis of loss of opportunity for employment. He stated: Therefore, the way that I have decided to approach her past economic loss is by assessing it was a loss of opportunity for employment based on my acceptance of her excellent work record and work ethic and the likelihood that she would have, if she was not re-employed by the Palm and Reflections Coffee Lounge, have been employed elsewhere in a similar capacity because of her excellent credentials as a chef. [Red AB 30] 30 In my opinion, there is no appellable error in the manner in which his Honour approached the assessment of past economic loss. It cannot be inferred that the respondent would have been successful in restoring her employment given that her employer was not called to give evidence to that effect, but it matters not having regard to his Honour's above finding. Future Economic Loss 31 In respect of future economic loss, his Honour considered the likelihood of the respondent working full-time to age 70, but found that from age 65 to 70 she would work only on a part-time basis. While it was Mrs Vrazalica's intention to continue working until the age of 70, the judge rejected the likelihood of continuing full-time work past the age of 65 based on a variety of factors. These included the respondent's receipt of a pension for 3 years; the myocardial infarct; the insulin controlled diabetic problem; degenerative changes in the lumbar spine and assistance given to her by her son in respect of the cleaning job. His Honour concluded: These matters lead me to the view that whilst she may have wished to work to age 70, the likelihood is that any such working period would have been on a restricted basis and would be unlikely to be the two jobs which she was working and was able to work when this terrible accident happened to her. [Red AB 31] 32 Respondent's counsel pointed to his Honour's earlier finding that notwithstanding the diabetic problem and degenerative changes, Mrs Vrazalica was 'fit and able to engage in permanent, full-time work as a cook and permanent full-time work as a cleaner at the date of the accident' [Red AB 28]. It was submitted that his Honour was not entitled to make the finding that the respondent's work fitness would have been significantly altered. Further, the assistance rendered by her son should not have been a discounting factor. 33 His Honour found that the respondent may have continued working part-time as a chef, and may have, despite her pre-existing conditions, have done so to the age of 70. He approached future economic loss on the basis that the respondent's earnings would be in the vicinity of $200.00 net per week. The approach was as follows: I think it is appropriate to approach this by not using statistics or the figures in the way suggested by Mr Whelahan, but by approaching it on the basis of a buffer or cushion, as indicated it was an appropriate way of approaching this type of assessment in the decision of the Court of Appeal in Ahmedi v Ahmedi 23 NSWLR …. [Red AB 33] 34 The respondent claimed $400.00 per week as a proper allowance for future economic loss from age 65 to 70. I do not consider such an allowance to be appropriate in the circumstances. It would be highly unlikely that the appellant would have been able to continue with her pre-accident workload between the age of 65 to 70. The factors which his Honour considered in reaching his conclusion were significant and could not be overlooked. In my opinion, his Honour's finding should not be disturbed. The respondent fails on this aspect of the cross-appeal. Superannuation 35 Counsel for the respondent submits that the trial judge erred in failing to allow damages for loss of superannuation. It was submitted that upon acceptance of the Dolan Bateman calculations, his Honour should have allowed an amount for loss of past and future superannuation. Such an allowance was not specifically included in any identifiable award of damages and no award was made by his Honour. However, the appellant submits that an allowance for loss of past and future superannuation was included in his Honour's assessment of economic loss because such figures were incapable of precise calculation on a weekly basis. 36 Although his Honour referred to the respondent's superannuation within his discussion of economic loss, he said nothing to indicate that any allowance was made within the damages he assessed. What was allowed for past economic loss does not, on its face, appear to include any element of superannuation. The same may be said with respect to future economic loss. The respondent is entitled to receive damages for loss of past superannuation from the date of the accident to the date of trial. Calculated on net weekly income of $480.00, the amount to be awarded to the respondent for past superannuation loss is $4,816.00, accepted by the appellant as to the arithmetic. This allows a credit for one year whilst not working due to the myocardial infarct. 37 As to loss of future superannuation the costs consist of two components. Superannuation loss from the date of trial to age 65, calculated on a weekly net income of $480.00, amounts to $1,811.00. For the reasons given under the heading 'past economic loss', it is unnecessary to make any further adjustment for vicissitudes. Future superannuation loss from age 65 to 70, calculated on weekly net income of $200.00, amounts to $3,304.00. The reduction of net earning at $200.00 per week is of itself a substantial discount. The aggregate for loss of future superannuation totals $5,115.00. Accordingly, the verdict is to be adjusted by $9,931.00 to reflect the respondent's loss of past and future superannuation. Past Domestic Care 38 The respondent also contends that his Honour erred in his allowance for past domestic care. By way of background, I mention that two injuries were the subject of the respondent's claim for damages. The first arose from the motor vehicle accident which occurred on 23 April 1991. Injuries were also sustained on 24 December 1993 when the respondent fell in a busy shopping centre which led her to suffer additional disabilities. The appellant concedes the causal relationship between the two accidents. 39 In respect of past domestic care, the respondent submits that while an initial allowance of 40 hours per week was appropriate for immediate post accident gratuitous care, it should at no time have been reduced to less than 20 hours per week. An allowance of less than 20 hours per week was said to be inconsistent with the evidence of Dr Davis which was broadly accepted by the trial judge. Accordingly, there was said to be an appellable error in not accepting the evidence of Dr Davis in its entirety. 40 Section 72 of the Motor Accidents Act 1988 limits the amount which may be awarded for damages of a domestic nature provided by a member of the same household or family as the claimant. Compensation will not be awarded for the first six months, and in addition, it will not be awarded for the first six hours of domestic care provided each week. Accordingly, taking into account the six hour statutory deduction under s 72, it was submitted that the appropriate amount of past domestic care which should have been awarded was 14 hours per week. 41 In assessing domestic care his Honour made varying allowances in respect of separate and distinct time periods. It is evident that while his Honour generally accepted the evidence of Dr Davis, he did not accept him as to the specific figure of 20 hours domestic care per week. Although his Honour's allowance for past domestic care may have been based on the evidence, it is unclear from his judgment how he arrived at the various assessments which he did. 42 Counsel for the appellant submits that each of the time periods referred to in his Honour's judgment was referable to some evidence or event. For the immediate post accident period, November to December 1991, an allowance of 40 hours per week domestic care was made. The respondent makes no challenge regarding this period. 43 From January to October 1992 his Honour allowed 13 hours per week. In accordance with the six hour statutory deduction under s 72, a net 7 hours per week allowance was made. It was submitted that this assessment reflected the evidence of the respondent being able to walk and look after herself to some extent. In respect of this period, the respondent submits that a net 14 hours per week is a more appropriate allowance. 44 From November 1992 to December 1993 his Honour allowed a net 4 hours per week. It was submitted that this allowance reflected the respondent's improvement from the motor vehicle accident and, in addition, her capacity to undertake some part-time work as a cooking teacher. In respect of this period, the respondent submits that a net 14 hours per week is a more appropriate allowance. 45 From January to April 1994 his Honour allowed a net 12 hours per week. This reflected the increased need for care arising from the respondent's fall in a shopping centre which occurred in December 1993. In respect of this period, the respondent submits that a net 14 hours per week is a more appropriate allowance. 46 From 5 April 1994 to 1 October 1996 his Honour allowed a net 4 hours per week. This restored the amount of domestic care back to the pre shopping centre accident level. In respect of this period, the respondent submits that a net 14 hours per week is a more appropriate allowance. 47 From October 1996 to June 1997 his Honour allowed a net 7 hours per week. Such an increase would appear to reflect a general degeneration as the respondent grew older. In respect of this period, the respondent submits that a net 14 hours per week is a more appropriate allowance. 48 Finally, from June 1997 to February 1998 his Honour allowed a net 6 hours per week. In respect of this period the respondent submits that a net 14 hours per week is more appropriate. 49 The respondent contended that there was an absence of any medical evidence in the appellant's case disputing the respondent's medical history or any reasonable need she had for assistance. Additionally, there was no evidence that the respondent's prognosis or dependency was likely to improve. 50 The appellant maintains that Dr Davis' evidence was disputed in a number of ways. Firstly, in the report of Dr Olsen dated 11 July 1995 the reasonable level of domestic assistance was assessed at the rate of 6 hours per week. Secondly, the oral evidence of Ms Jacqueline Henry was that, assuming the plaintiff was capable of doing most tasks such as washing and dressing herself, doing meal preparations and carrying a plate to the table, only 2 hours per week of domestic assistance was necessary. Thirdly, during examination in chief, Ms Henry stated that the respondent required 8 - 10 hours domestic assistance. Fourthly, the evidence of the respondent's children was that 20 hours domestic assistance per week was no longer needed as the level of assistance provided by the children had diminished. 51 In my opinion, his Honour's findings on past domestic care were open on the evidence save as to one respect. There appears to be an inconsistency contained in his Honour's assessment. During October 1996 to June 1997 the weekly allowance was increased to a net 7 hours per week. The basis for this increase, as mentioned earlier, was said to be due to the respondent's degeneration. In the subsequent period from June 1997 to February 1998 the allowance was reduced to a net 6 hours. If anything, one would expect the allowance of domestic care to increase, if not at least remain constant, to reflect the respondent's degeneration. The weekly allowance granted for past domestic care should not have fallen below the level of a net 7 hours, which appears appropriate given the respondent's condition. Accordingly, the allowance for past domestic care for this period needs to be recalculated. Making allowance for the extra 1 hour net per week between June 1997 and February 1998 adds $391.00 to the allowance. However, it appears that his Honour did not apply s 72 by making an allowance for the first six months. This period involved past domestic care totalling $4,349.60. Overall, therefore, the amount allowed for past domestic care needs to be adjusted by a reduction of a net figure of $3,958.60. Accordingly, the award for past domestic care is to be reduced from $18,452.00 to $14,494.00 as per the table which follows. Although the 6 months deduction was not a ground within the appellant's appeal, it was raised in argument by Mr Garling SC. In the respondent's amended calculations, lodged with leave after the completion of the appeal hearing, the 6 month statutory deduction was conceded. Future Domestic Care 52 In respect of future domestic care his Honour accepted that the respondent would live for another 20.5 years and, upon that basis, allowed a net 6 hours domestic care per week. The total amount allowed for future domestic care was $48,679.00. The respondent submits that the gross allowance of 12 hours per week reflects an error on his Honour's part. The net amount cannot have been correct, as again one would expect the domestic care to remain constant or increase from the previous net 7 hours. As previously mentioned, his Honour 'broadly' accepted the evidence of Dr Davis which assessed the appropriate amount of care at 20 hours per week. See Dr Davis' report dated 26 June 1997 - 'at least 20 hours per week'. In the context of his findings, it was argued that his Honour intended to allow 20 hours per week, but in performing the statutory deduction under s 72, an error was made. Instead of deducting 6 hours from Dr Davis' recommendation of 20 hours, it was contended that his Honour incorrectly deducted 14 hours, arriving a net 6 hours per week. There may be some substance in this argument. His Honour appears to have accepted the assessment by senior counsel for the respondent, see AB 35 M. However, his Honour then gives no reasons for arriving at a gross allowance of 12 hours. It is puzzling. However, since his Honour broadly accepted Dr Davis, who in his abovementioned report and oral evidence opined the respondent's need for at least 20 hours per week of domestic assistance, and in the light of the other relevant evidence, I have concluded that his Honour was in error and probably intended to allow 20 hours less the statutory deduction of 6 hours. It may be noted that Dr Davis was of the opinion that the respondent's needs would increase with age as her mobility decreased, as a result of her continuing disabilities from the accident. Indeed, Dr Davis said that she would require (eventually) a total 'knee replacement'. In my opinion, future domestic care should be recalculated on the basis of 14 hours per week. This amounts to $112,562.95 in lieu of $48,679.00 which his Honour awarded. Again, the verdict requires adjustment. Adjustments to Verdict 53 It is convenient to restate the various heads of damage to accord with my calculations. With adjustments to past economic loss, superannuation and past and future domestic care, the recalculated damages are as follows: Judgment Quantum Substituted Judgment Quantum Non economic loss $ 80,000.00 $ 80,000.00 Past out-of-pocket expenses $ 16,888.00 $ 16,888.00 Future out-of-pocket $ 20,000.00 $ 20,000.00 expenses Past economic loss $100,000.00 $139,616.80 Future economic loss $ 35,000.00 $ 35,000.00 Past superannuation loss - $ 4,816.00 Future superannuation loss - $ 5,115.00 Past domestic care $ 18,452.00 $ 14,494.00 Future domestic care $ 48,679.00 $112,562.95 Total $319,019.00 $428,492.75 20% contributory $ 63,804.00 $ 85,698.55 negligence deduction Judgment entered for the respondent $255,216.00 $342,794.00 Orders 54 Accordingly, the following orders should be made: 1. The appeal is dismissed with costs. 2. The cross-appeal is upheld with costs. 3. By consent order the appellant pay the respondent's costs of the appeal and the cross-appellant's costs of the cross-appeal on a solicitor client basis. 4. Verdict and judgment for the respondent of $255,216.00 entered by Delaney DCJ be set aside and a new verdict for the respondent in the sum of $342,794.00 substituted. 55 GILES JA: I agree with Stein 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.