New South Wales Court of Appeal CITATION : Eastern Australian Airlines Pty Ltd v Cameron [2000] NSWCA 304 FILE NUMBER(S) : CA 40157/99 HEARING DATE(S) : 27 October 2000 JUDGMENT DATE : 27 October 2000 PARTIES : Eastern Australian Airlines Pty Ltd (Appellant) Anthony Cameron (Respondent) JUDGMENT OF : Handley JA at 71, 73; Powell JA at 72; Heydon JA at 1 LOWER COURT JURISDICTION : District Court LOWER COURT DC 14/98 FILE NUMBER(S) : LOWER COURT Delaney DCJ JUDICIAL OFFICER : COUNSEL : L King SC/J A Kernick (Appellant) R S McIlwaine SC/P J O'Connor (Respondent) SOLICITORS : P W Turk & Associates (Appellant) Lyons Barnett Kennedy (Respondent) LEGISLATION CITED : Workers Compensation Act 1987 DECISION : See paragraph 73 THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40157/99 DC 14/98 HANDLEY JA POWELL JA HEYDON JA Friday, 27 October 2000 EASTERN AUSTRALIA AIRLINES v CAMERON JUDGMENT 1 HEYDON JA: Background This is an appeal by the defendant from a verdict and judgment for the plaintiff in the sum of $810,841.13 given by Delaney DCJ on 3 March 1999 after a trial conducted on 1 and 2 March 1999. 2 On 15 November 1995 the plaintiff was, as he had been for about seven weeks, employed as a trades assistant by the defendant. The defendant conducted a paint shop for aeroplanes at its hangar 2 at Tamworth Airport. The plaintiff had been requested to assist in the stripping of paint from an aircraft and was engaged in that work when he slipped and fell at least 3.2 metres from the top of the fuselage to the floor below via a stand which he hit on the way down. 3 The defendant admitted a breach of its duty of care. It alleged that the plaintiff's injuries had been caused by his contributory negligence. 4 The trial judge found that there was no contributory negligence and that the accident resulted from an "inadvertent slip" by the plaintiff while concentrating on unmasking the plane. 5 The plaintiff suffered "most horrific injuries to his wrists" (Red 17T). Despite considerable surgery, his injuries have led to a permanent condition of stiffness and weakness; moderate constant pain and discomfort in both wrists, worsening in cold or cloudy weather; and a reduction in his earning capacity to a small level. 6 The defendant appeals against the trial judge's orders both in relation to the contributory negligence finding and in relation to various aspects of the damages award. Grounds 1 and 2: Contributory negligence 7 These grounds were: "1. That His Honour erred in law in rejecting the evidence of Mr McDonald. 2. That His Honour failed to give adequate reasons in rejecting the evidence of Mr McDonald and preferring the evidence of the plaintiff." 8 The trial judge's findings in relation to contributory negligence were (Red 15J-17Q): "The allegation of contributory negligence which was made in this case was based on the evidence which was given particularly by the paint shop supervisor, Mr Lyle McDonald. Mr McDonald gave evidence that he was, by trade, a panel beater/spray painter, he had been with the defendant for some 16 years at the date of trial. He was, at the date of accident, a supervisor of the paint shop in hangar 2, and he was working there with other men, including Messrs Ballantyne and Scott. He said that work had commenced on the day. He was involved in the morning, just before 8am, in walking around looking at what was going on. He said that at that stage, in relation to the Dash-8 aircraft which was in the hangar on which the plaintiff was working, that they were in the process of stripping the paintwork. He said that after they stripped the paint they clean the aircraft off, they hot-wash it, and then they unmask all the areas. He said that he was walking in the number 2 hangar, and he then, that morning, saw the plaintiff. He said that Mr Ray Ballantyne was on a stand, the stand is, of course, the stand which was shown in exhibit D1. He said there was another stand with Mr Scott on it. He heard the words 'catch me', and saw the plaintiff sliding slowly from the fuselage of the plane with his, as he described it, backside adjacent to the fuselage facing him. He saw the plaintiff strike the stand, and both the plaintiff, Mr Ballantyne and he all ended upon the ground suffering some injury. In the course of giving his evidence, Mr McDonald said that the plaintiff was out of control. It was suggested in cross-examination of the plaintiff by Mr Maiden that he was, in effect, skylarking in the way that he was removing himself from the plane, that he was sliding down the fuselage to get to the stand. Mr McDonald, who I found to be a man of some credit and dignity, gave his evidence, I believe, to the best of his belief and recollection. However, I find that in relation to his observations of the plaintiff moving down the fuselage of the vehicle, his evidence was mistaken. I think that with the passage of time, he has made an error as to the precise direction that the plaintiff was facing as he fell from the fuselage. As I mentioned earlier, I found the plaintiff's evidence to be compelling. I accept him without any hesitation. I accept that he fell, not having anything to hang onto, from the fuselage of this aircraft. Evidence was led that there was a narrow, flat area at the top of the aircraft on which the plaintiff could work. Any slipping and falling from such a place, without harness, without anything at all to hang onto, could occur at any time. This was, if anything, a momentary inattention. … I find that the plaintiff, a conscientious man, was so concentrating on his task at hand, namely the unmasking of the plane, and that the fall occurred, at the very worst, as an inadvertent slip whilst engaged in that activity. I reject the impression which was suggested as some form of manner of him alighting from the fuselage rather than a real fall by accident. Accordingly, on the question of liability, I reject the allegations made by the defendant that the plaintiff, in some way, was the cause of his own mischief, or a material cause of his own injury, and there will be a verdict for the plaintiff on liability, without reduction for contributory negligence." 9 The plaintiff's theory of the case was that he had slipped from the top of the fuselage and descended with his stomach and face pointing to the fuselage. The defendant's theory was that the plaintiff did not slip but deliberately chose to descend with his buttocks and legs against the fuselage: it was suggested that he was using the fuselage as a slippery dip in a careless fashion. 10 The defendant's submissions to this Court were: (a) The plaintiff had presented no evidence establishing what actually happened, Mr McDonald had, and, being "a man of some credit and dignity, [who] gave his evidence … to the best of his belief and recollection", to quote the trial judge (Red 16L), should have been accepted, not rejected. (b) Alternatively to (a), if the plaintiff had given evidence establishing what actually happened, it was inconsistent with Mr McDonald's evidence; since there was a conflict between witnesses whom the trial judge had found to be credible, there was a duty on the trial judge to resolve it and give reasons for his resolution of it. This he did not do. (c) Mr McDonald was not cross-examined to suggest that he was mistaken about the way the plaintiff was facing. (d) Mr McDonald was not cross-examined to suggest that his recollection had faded. 11 The trial judge faced considerable problems in finding exactly what happened, because the only observer of events who was called, apart from the plaintiff, namely Mr McDonald, only saw the latter stages of the fall, not its beginning (CAB 9F-H and 60G-W). As for the plaintiff, the accident caused him to be badly shaken; he cut his eye (CAB 9Y and 35R), immediately noticed and complained of broken wrists (CAB 9X-10G and 60X-61C) and saw "stars" when he hit the ground (CAB 9V-W and 37Q-R). All this may have affected his recollection. 12 One preliminary difficulty can be dealt with. The trial judge said that it was put to the plaintiff in cross-examination that he was skylarking and deliberately sliding down the fuselage to get to the stand. Though some such suggestion may have been made in address, and though the tone of the cross-examination may have suggested this, the mere text of the transcript of it does not, and neither Mr McDonald's evidence nor the defendant's submissions to this Court made that suggestion. Indeed, any such suggestion would have been outside the particulars of contributory negligence in paragraph 4 of the Defence (Red 6E-J). 13 If skylarking is left out of account, and attention is paid only to the allegations of contributory negligence, which of them is supported by the evidence? The particulars were (Red 6E-J): "(a) Failure to take any or adequate care for his own safety as he performed his duties. (b) Failure to follow the normal safety procedure of his work. (c) Failure to comply with the normal recommended and accepted system of conducting the work on which he was engaged. (d) Failure to request any assistance in the carrying out of an activity which the plaintiff knew or ought to have known was beyond his capacity. (e) Failure to keep any or any proper lookout." Particulars (a), (d) and (e) do not appear significant: they either state ultimate conclusions or make pro forma allegations only. The gist of the defendant's case as pleaded was that the normal way of descending from the fuselage was for the plaintiff to adopt some method other than sliding down with his buttocks and legs against it. 14 The key finding of the trial judge was that while working on the top of the fuselage the plaintiff slipped, not having anything to hang onto, and that that slip was an inadvertent slip while he was engaged in his work. 15 There is no reason to doubt that finding. 16 First, the plaintiff gave evidence to that effect several times (CAB 9J-P, 34J-P, 34Q-S and 46G-N). 17 Secondly, though it was suggested to the plaintiff in cross-examination that the slip arose from choosing to descend with buttocks and legs against the fuselage, the plaintiff resisted that suggestion quite firmly (CAB 34T-W, 35I-L, 35P-R, 35X-36C, 36H-L and 36S-U). 18 Thirdly, there is no reason to doubt either the trial judge's favourable conclusions on the plaintiff's general credibility (Red 14J-U and 16R-T) or his favourable view of the plaintiff's reliability on the question of slipping: he said the plaintiff's evidence on that subject was compelling and that he accepted it "without any hesitation". 19 Fourthly, Mr McDonald accepted that the plaintiff was required to work on top of the fuselage - a curved metallic surface - without anything to hold onto to prevent sliding off the top of the fuselage in the event of accidentally slipping, and without anything to break his fall except the stand about two metres below him if he fell at that point (CAB 64Y-65F). Mr McDonald also accepted that that was what happened to the plaintiff. "Q. And indeed that's what happened to Mr Cameron wasn't it, he slipped off the top of the fuselage, he crashed into the stand on the way through, and the stand, with the force of him hitting it, moved away, and then he continued on and crashed to the floor, that's what happened wasn't it? A. That's correct" (CAB 65U-W). 20 Fifthly, the defendant's submissions on appeal were that "Mr McDonald's evidence supported the inference that the respondent had chosen to come down from where he had been working on the fuselage of the aircraft by slipping down on his buttocks and legs … and had lost control of his descent in the process": CAB 60H-S (paragraph 3, written submissions). That evidence does not support the inference: rather, it is neutral, since Mr McDonald's observations only began when the plaintiff's movement down the fuselage, whether the result of a slip or the result of a deliberate decision to descend in a careless manner, was unstoppable, and began at a time which was too late to cast light on the cause of that movement. 21 In oral argument, the defendant attacked the plaintiff's evidence essentially for its vagueness. For example, reference was made to the answer at page 34K of the Combined Appeal Book when the plaintiff said, "that's all I can remember, just pulling the tape and sliding, going. I don't know what happened". It was submitted that the last sentence of that answer in some way cancels out the first sentence. However, the evidence of the plaintiff here and elsewhere in my judgment does support the trial judge's conclusion of an involuntary slip. 22 Since the finding that the plaintiff accidentally fell from the top of the fuselage by reason of the lack of a harness or anything else to hang onto is impregnable, it is to my mind immaterial whether the plaintiff fell with his stomach facing the fuselage, as he suggested he did in accordance with his normal practice, or the other way, as Mr McDonald said. It was unnecessary for the trial judge to choose between these possibilities. It was not suggested that it was possible for the plaintiff to remedy the potential consequences of slipping by falling one way rather than the other. Similarly, the issue of whether, as particulars (b)-(c) alleged, and as the cross-examiner suggested, there might have been a safe way of leaving the top of the fuselage (CAB 34B-I), was an immaterial issue if that course was not open because the plaintiff was falling involuntarily. The failure of the trial judge, if it was a failure, to give reasons for rejecting Mr McDonald is therefore an irrelevant error. 23 Another supposed conflict between Mr McDonald's recollection that someone ("As far as I know it was Paul Cameron" (CAB 60K-L)) called "catch me" and the plaintiff's non-recollection of this is equally irrelevant. Such a call might be relevant to a skylarking case, but if skylarking is put out of account, it is quite possible that those words were said and forgotten. 24 I would reject grounds 1 and 2. Ground 3: award for non-economic loss 25 This ground complains that the award of damages for non-economic loss based on 75% of a most extreme case was excessive. 26 The defendant's submission to this Court was: "11. However, in finding that the respondent's injuries constituted him as 75% of a most extreme case of injury, notwithstanding that there was some discretionary component of this aspect of the decision made by his Honour, he was excessively generous. 12. The proposition just put can be tested on fairly mundane lines. Judicial decision establishes that there is no one category of 'most extreme case'. Rather there is a range of injuries which are fairly to be seen as being of that order such as the case of a paraplegic, quadriplegic, or severely brain damaged person. Such unfortunates have one thing in common, namely that they are substantially helpless, almost inevitably wheelchair-bound, and undoubtedly dependent upon others to a very large extent if not exclusively. To say that a man like the respondent, grievously injured in both lower arms as he is, but who is fully mobile and on his own case only reliant now upon his wife to the extent of one hour's assistance a day 'on the average', constitutes three quarters of a case of such a catastrophically injured person as say a paraplegic is clearly erroneous. Cases falling in the range of say two thirds of a most extreme case up to the maximum amount are usually cases of outright amputation of a limb or limbs in whole or in part or blindness in large part or combinations of such severe disabilities. It is submitted that the proper exercise of the discretionary component of decision making pursuant to s 151G of the Act could not have yielded an assessment of more than 50% of a most extreme case which would give damages for non-economic loss of $109,350." 27 The plaintiff submitted that the injury had caused gross disruption in function to the plaintiff and had caused many restrictions in daily life. It had caused, and would continue to cause, severe pain; and there had been a considerable emotional injury as well. Reference was made to passages at CAB 19-20 and 24-25, and in relation to pain at CAB 16-17 and 21. 28 The plaintiff's counsel submitted that, in effect, the plaintiff was now suffering a deep sense of failure. His existence had essentially been a physical one. His self-esteem had rested on doing physical things and on being physically strong. The future held out no hope of improvement and indeed matters were likely to worsen. 29 The plaintiff, it was submitted, had to look forward forever to a complete change in what he was and what he could do. He had to live with great pain and with deep emotional scarring. 30 It was submitted that the plaintiff plainly fell within the upper levels of non-economic loss. He had had his entire life changed forever. 31 Though Mr McIlwaine SC, who appeared with Mr O'Connor for the plaintiff, did not advance this submission except by adoption of a suggestion from the Bench, to my mind, though the plaintiff was able to father a child who was three months old at the time of the trial, his injuries must have had some effect on his sexual relations with his wife by reason of the impact on his hands. 32 In short, the plaintiff submitted that 75% was not an excessive percentage of a most extreme case. 33 The reasoning of the trial judge appears at Red 17R-22S. He made the following points. The injuries were "most horrific". The plaintiff had suffered generalised pain and numbness in the fingers and stiffness in both wrists. He would have permanent weakness and stiffness. He was permanently unsuitable for the numerous manual occupations he had pursued. He would suffer moderate constant pain and discomfort in both wrists for the rest of his life, and that pain and discomfort would be worse in cold weather. He was unable to perform the most simple tasks without difficulty. He required what were referred to as special "gloves … supports and assists". He would require an operation to fuse his left wrist, and might require an operation to fuse his right wrist. He had "a permanent loss of efficient use of his right arm below the elbow of the order of some 22%, and of his left arm below the elbow of the order of some 24%". His condition appeared to worsen in the perception of each medical specialist who has seen him more than once. The trial judge said (Red 22B-D): "In summary, the plaintiff, who came to his job with two good hands, has neither hand which is good, neither hand which can work effectively, neither hand which can support him in his life or income-earning capacity." 34 The trial judge's findings about the plaintiff's stoic approach to his predicament must be borne in mind in attempting to assess the extent of the injuries and their effects (Red 14L-T): "I have not the slightest hesitation in accepting the plaintiff on his evidence. If anything, when one considers the nature of his injuries, and the effect that they have had on his daily life, the evidence that he gave about those effects, and the way that the incident occurred, was a significant understatement of those effects. It took substantial effort for Mr McIlwaine to prise from him the emotional and psychological effects of having really no hands, before he was able to express, in terms which I found compelling, the daily disability, and daily pain, which he has had ever since … 15 November 1995." 35 There are other findings made in other parts of the reasons for judgment which are relevant. 36 At Red 22T-23D the trial judge said: "The plaintiff gave evidence about the effect that this accident had on his daily life after the accident. He informed the Court about the fact that he could do nothing for himself in the initial stages after this injury. He said that his wife had to take all the steps necessary to make him comfortable on a daily basis. She had to attend to his toiletries, she had to attend to his dressing and food requirements. For a man who I perceived as a independent, self-motivated person this must have been serious, as he eventually developed a psychological problem." 37 At Red 29C-H the trial judge said: "There is no doubt that the plaintiff, a well-motivated man, would, in my view, seek to obtain and retain employment for the dignity which employment brings to him, and the satisfaction that it would bring to his life. He has not been someone who has slackened in that area for one moment during the course of his life-time endeavours on behalf of his family." 38 At Red 30E-M the trial judge said: "There is no doubt that the injuries suffered by the plaintiff were, as I have already said, at the risk of repeating myself a dozen times in this case, grievous and permanent. He has little education, he has enthusiasm, he has personality, but he does not have the skills to do the non-manual work which the doctors have said he must now undertake. He has a love of horses. He has, as Mr Maiden tried to suggest, a capacity of using such love to produce some work. That may be so. However, broadly, his earning capacity has been destroyed. I think that some earning capacity remains, as it must, but it is small." 39 Though the observations just quoted led the trial judge to particular conclusions in relation to other heads of damages, they assist in clarifying the state of affairs which led the trial judge to his conclusion about non-economic loss. In particular, the effect on a man who liked work and found dignity and satisfaction in it of not being able to work very much in the future is likely to be very damaging. 40 If anything, the trial judge's findings give only a rather diluted and feeble impression of the evidence. For example, the plaintiff has to wear a kind of splint on his arms whenever he has to go out or do anything, particularly with his right hand, so as to stop pain (CAB 14B-F). He suffers pain at night, only controllable by special thermal gloves, tablets, or placing his hands in the air (CAB 14G-M). He has other velcro-secured splints for both wrists to assist in driving (CAB 14V-15E). Since the period which expired fifteen months after the accident, he suffers constant pain on a scale of 5-6 out of 10 in both wrists (CAB 16R-V and 18Q). He has no strength in his left hand (CAB 16W) and could not pick up a book he pointed to in court (CAB 18M). Even minor weather changes like clouding increase pain, and the colour of his left hand and wrist changes to black (CAB 17J-V). Parts of his wrists and hands are permanently numb (CAB 17Q-18E). Particular uses of his right hand increase the pain to 7-8 on a scale of 10 (CAB 18T-W). He cannot cut up steak and has changed his diet to some extent (CAB 18X-19F). Knocking his wrists causes "a big pain" (CAB 19G). His former recreations - playing hockey, riding a pushbike, playing tennis, playing with his children and horse riding - are no longer open to him (CAB 19Q-20D). These are serious impairments of the enjoyment of life for an active man who spent five years as a jockey and whose youngest child was aged three months at the time of the trial. 41 The plaintiff gave the following evidence (CAB 24N-25Q): "Q. Given all these problems and the fact that you have to wear this brace and so on, or this splint, what effect has that had on your feeling of self-esteem? A. A lot. Q. Could you just describe to his Honour please precisely how you've reacted emotionally to the consequences of this accident? A. Well, I can tell the Honour that when I go down shopping it's very embarrassing when your wife's got to carry everything and you can't, especially when she's pregnant. Because I had two old people at a butcher ask me why wasn't I carrying them and I had to explain that I couldn't. You know, that gets very embarrassing. Or when you've got to ask your kids to open a drink bottle or something, you know, things like that and you've got to explain to everybody why you can't do it. Q. Does this get you down? A. Yes. Q. Are you familiar with the expression 'depression'? A. No, not really, no. Q. You know what sadness is? A. Yes. Q. I just want his Honour to have it in your words, don't worry about anybody else's words, your words. Just describe if it be the case whether the consequences of this disability has changed your feelings about yourself for the worse and made you sad? A. Yes I think so because you just can't do anything, it just makes you feel like a, I don't know, like you're no good any more. You've got to explain to the kids why they've got to mow the lawn and you can't, things like that. Q. What about the fact that, like other fathers, you don't go to work? How does that make you feel? A. Yes, when I got hurt my wife had to go and find a job because we couldn't afford it, not to work. And then I had to stay home so -- Q. How does that make you feel in front of your children? A. Not very well because they've got to ask what your father does and they've got to say nothing, you know, where before they could always say I done something. Now they always come home with school letters, you know, 'What's your father's employment?' None. You know, that's a bit embarrassing when you've got to do that for the school. Q. Are your children playing any sports themselves? A. My daughter plays soccer and Mark, he, only a skateboard, that age where they just ride skateboards. Q. Are there things that if you were able to you'd do with them? A Yeah, I'd go riding the bike with them and we used to get out the back yard and muck around with the tennis balls and racquets and that, you know. We always went riding our bikes it was something to do on a Sunday or something with the family. Q. So what do you do now? What's an ordinary day for you? A. Just going for a walk and sitting at home. Q. Do you get bored? A. Yes." The plaintiff told Dr McKesser on 19 June 1998 that he felt as if no-one wanted him (CAB 84C). This evidence reveals that the accident has had consequences for the plaintiff which are very far from trivial. 42 The defendant submitted, not without some force, that the trial judge was "excessively generous". He certainly was very generous. The plaintiff is obviously much better off than a paraplegic, a quadriplegic, or many persons with severe brain damage. But, to take one instance relied on by the defendant, if it is true that the courts treat persons who have had all or most of a limb amputated as being in the range of two-thirds of a most extreme case, I am not convinced that the plaintiff's serious injuries to both limbs do not put him in an equivalent position with a person who has lost an arm or a leg, because the combination of two partially disabling injuries has produced a very substantial disabling result. The trial judge's decision was in the nature of a discretionary decision, necessarily based on impression. However, even taking into account the plaintiff's sufferings before trial, his likely sufferings in the future, the extent to which he has been incapacitated, the many years he is likely to live (he being 41 at the trial), and the impact on a man of his character, background and personality of what he has suffered and will suffer, I am persuaded that the trial judge's generosity was appellably excessive. Though other minds may have come to other percentages, the trial judge's figure simply appears to be too large and a sounder figure would be 66 and two-thirds per cent. Ground 4 43 Ground 4 was abandoned. Ground 5: past domestic assistance 44 Ground 5 provides: "That his Honour erred in assessing quantum for past domestic assistance in that he failed to: (i) give reasons for assessing the hours allowed in the period from March 1997 to March 1999; (ii) give proper weight to the evidence and to the weight of the evidence." 45 The defendant submitted: "13. The evidence as to past domestic assistance was: (a) In the first twelve weeks post-injury the respondent received almost full time care from his wife or mother. (b) Thereafter for the next twelve months post-injury his wife spent about three hours a day seven days a week doing things that he would ordinarily have done for himself. (c) Since the expiry of the first twelve months post-injury on average the respondent was getting at least an hour's assistance each day: CB12. 14. It is conceded that if the Court feels that the trial Judge's acceptance of the respondent's evidence as 'compelling' at least in relation to matters of damages, means that the respondent's bare assertion that that assistance was given to him in the past is sufficient to establish both the fact that it was given and that there was an actual reasonable need for it, then this ground of appeal fails. In this connection a couple of leading questions were put to the respondent which implied a conclusion of reasonable need as distinct from the mere fact that the assistance was given: see CB11L ('Your wife had to do everything for you') and CB12G-H ('Has your wife continued to have to do things for you?'); CB12M-N ('What kind of things does she need to do for you?'); and CB12P-Q ('reasonable estimate of the time that she needs to spend even now'). 15. However it is customary, and it is customary because it is essential, to support a claim for hours of domestic assistance by reference to expert opinion from doctors, usually rehabilitation specialists. This is for the obvious reason that on the one hand a loving spouse or family member may be too indulgent or on the other hand an injured person may be too stoical or too accepting of an inadequate regime of assistance. It is better for the affected person and his carers that the proper amount of care be given and it is only just as between the parties that the proper amount of care be proved when it is to be brought home to the defendant by way of damages. 16. There was a complete absence of such medical evidence in this case and his Honour did not in his reasons say why he was prepared to act upon the assertion of the respondent, however impressively made, in the absence of such evidence and why he did not regard the absence of sch evidence as a substantial flaw in the respondent's case on this head of damage. 17. Nonetheless the appellant concedes that it would be unjust to deprive the respondent of all compensation under the head of past care given the nature of his injuries and the period of surgery and convalescence. At the same time the appellant submits that it would be unjust to visit the defendant with the whole of the respondent's claim without a counter check of medical evidence as to reasonable need. An arbitrary allowance of some lower amount is called for and the appellant has nominated $28,980 under this head." 46 I agree that in many cases it might be desirable, for the reasons given in the defendant's submissions, for persons in the position of the plaintiff to call expert evidence of the type suggested. However, it is not "essential" that evidence of that type be called. So far as the plaintiff gave evidence of what his wife actually did, it was open to the trial judge to accept him, as he did accept him. So far as the issue of reasonable need is concerned, it is possible to infer reasonable need from proved circumstances. The plaintiff gave evidence of intense pain at various stages and of chronic pain and weakness at other stages. It was open to the trial judge to infer from these circumstances that the plaintiff had particular needs and that they were reasonable. 47 While the leading character of the questions which elicited some of the evidence may affect the weight of the answers, they were not objected to, which is not surprising in view of their uncontroversial character, and the fact that the trial judge invited this course (CAB 10Q), and they are supported by other parts of the plaintiff's evidence. Ground 6: quantum for future domestic assistance 48 Ground 6 was: "That his Honour erred in assessing quantum for future domestic assistance in that he failed to: (i) give reasons for assessing the hours allowed in the period from March 1999 onward; (ii) give proper weight to the evidence and to the weight of the evidence." 49 The defendant put the following submissions: "18. The appellant repeats the submissions made above as to the insecure foundation afforded by the respondent's own assertion and the absence of reasons on the part of his Honour in respect of past domestic assistance. They go squarely to the allowance in respect of future domestic assistance of one hour per day. 19. One hour per day was the assertion made by the respondent, however impressive, in self-interested support of his own claim. It is a significant amount of attention for a person who is able to walk freely, drive a car admittedly with power steering etc, who has applied for some jobs obviously genuinely believing he could do them, and who agreed he did not have every meal at home. 20. In all the circumstances the appellant submits that the appropriate allowance in respect of future care was zero." 50 For the reasons given in relation to post domestic assistance, I would reject the defendant's contentions. In particular, the trial judge's conclusions are supported by the following evidence (CAB 12J-O): "Q. It is now the case that she would spend at least an hour each day, seven days a week doing things for you, as a reasonable average, that you would otherwise do for yourself? A. Yes. Q. Sometimes it's more and sometimes it's less but if you averaged it out it'd be an hour a day? A. Yes. Q. What kind of things does she need to do for you? A. Even today she still cuts my meat if I can't get it. She has to shampoo my hair and wipe my back because I couldn't reach it. Just the normal toiletry jobs and that, you know; open my drinks, like bottles and cans and that." In cross-examination some attempt was made to minimise the amount of time spent in this way (CAB 40E-41D), but I am unpersuaded that the trial judge's conclusions based on the plaintiff's estimate are appellably wrong, let alone that the correct conclusion was to allow zero. Grounds 7, 8 and 9: past and future economic loss 51 These grounds are as follows: "7. That His Honour's award of damages for past and future economic loss were excessive. 8. That His Honour erred in assessing quantum for past economic loss in that he failed to: (i) give reasons for finding that the respondent's economic capacity was nil; (ii) find as the respondent's economic capacity after March 1997 at least $200.00 per week; (iii) give proper weight to the evidence and to the weight of the evidence. 9. That His Honour erred in assessing quantum for future economic loss in that he failed to: (i) give reasons for finding that the respondent's economic loss into the future would be $500.00 per week; (ii) find that the respondent's economic loss into the future would be less than $500.00 per week; (iii) find that the respondent's economic capacity into the future would be at least $200.00 per week; (iv) give proper weight to the evidence and to the weight of the evidence." 52 The defendant submitted: "21. Ground 8(i) asserts that the trial Judge found that the respondent's economic capacity (i.e. post-accident pre-trial earning capacity) was nil. That seems to be one view of his Honour's decision, since he expressly said at RAB27N-S that he would add to the net earnings in the respondent's job with the appellant some allowance in respect of possible casual bar work and round the past weekly amount the respondent would have earned uninjured 'to the sum of $600' on a weekly basis. But following that his Honour also expressly held that some earning capacity must remain 'but it is small': RAB30L-N. He immediately followed that comment with an assessment of past wage loss at the full figure of $600 per week: RAB30N-P. 22. The comment as to small residual earning capacity was expressed in the present tense but seemed to encompass at least some of the past period as well as the present and the future. On that basis his Honour gave conflicting and confusing reasons which must be said to be inadequate. 23. Since in respect of future diminution of earning capacity he went on to allow a residual capacity of $100, thus arriving at a continuing weekly measure of $500 per week as the loss (RAB30Q-S) it is difficult to see why some residual allowance was not made in respect of the past and his Honour did not overcome that difficulty by proper reasons. 24. There were expressions of opinion in the medical reports that the respondent had a residual capacity at and prior to the date of trial and as abovementioned the respondent indicated that he had applied for some jobs and indicated as well in evidence that he felt there were things he at least might be able to do. The Court will be taken shortly to these matters in oral address but the following are some references: (i) He could probably do some supervisory work at an appropriately sized stable: CB27P-Q. (ii) He could do office work at least to the extent of counting money: CB29K-L. (iii) He had sought work at the Tamworth Services Club in 1998: CB29O and had applied for work as a gateman in 1997 (and although he would not have got it in the absence of a medical certificate presumably when he applied not knowing that he thought he could do the job): CB30J-K. (iv) The report of Dr Honner dated 25 May 1998 (part of Exhibit A) indicated at the foot of p.2 (CB75Y) that the respondent was using his dominant right hand to a greater extent than his left and the doctor expressed the view at the head of p.4 (CB77F-G) that the respondent was fit for selected duties in a bar. 25. His Honour's reasons were also deficient in that they did not take account of the evidence of Mr Jones to the effect that the respondent was a casual employee only with the appellant, whose tenure depended upon demand, and that the work was dirty and saw a significant staff turnover (CB49F-50O). This ought to have caused his Honour to reduce the base figure of $543.81 net per week as probable weekly earnings had the respondent stayed with the appellant against the likelihood that he may well not have, or to explain satisfactorily why no such reduction was being made. Likewise the example at CB28K-L that the respondent had at least [on] one occasion taken about three months to find a new job after leaving his last job ought to have been seen to be a further factor justifying a reduction in the base figure or satisfactorily explained away as not justifying any such reduction." 53 The defendant's complaint about the "conflicting and confusing reasons" in relation to past economic loss approach the trial judge's reasoning with an eye too sharply focussed on the possibility of error. To say that "broadly" the plaintiff's "earning capacity has been destroyed" is not inconsistent with saying that "some earning capacity remains, as it must, but it is small." The trial judge was asserting, soundly in the light of all the evidence, that as a practical matter whatever earning capacity the plaintiff had for the past was not likely to be translatable into significant income, and on that basis there was no contradiction in calculating past loss as $600 per week. The past was the period in which for some time the plaintiff was completely dependent on his wife, and the period in which extensive surgical and other procedures were undertaken. 54 I would reject the defendant's complaint that since in respect of future diminution of earning capacity the trial judge allowed a residual capacity of $100 per week, thus producing a loss of $500 per week, he had contradicted his conclusions as to the past. In the post-trial period, according to the trial judge, the plaintiff is much less likely to be troubled by surgical procedures. Low though the plaintiff's earning capacity may be in the future, it was not unreasonable to estimate it at $100 per week, and not unfair to the defendant. 55 So far as the defendant contended that the plaintiff had a greater residual capacity than the trial judge found, the plaintiff's opinions about the things he could do or wanted to do scarcely establish a capacity to do them. These opinions simply illustrate the extent of the impact on the injuries on a well-motivated man who, having experienced pleasure from work and having felt dignity in doing it, wants those advantages in the future. The existence of those desires does not prove that they can be fulfilled. 56 The types of work to which the submissions point as probabilities are scarcely attractive, in any practical sense, to any but the most benevolent employer - "some supervisory work at an appropriately sized stable", "counting money", "selected duties in a bar". Capacity to do jobs never done before, or jobs done only briefly before, and capacity to do limited parts of much broader jobs, do not suggest that the trial judge erred in quantifying the worth of what capacity the plaintiff had left at $100 per week. 57 The plaintiff correctly said that in some stables he did not know which employers would want "anyone just to stand there" (CAB 27M-P). He agreed he could supervise in a bigger stable; but the owners of bigger stables would no doubt look for a person with specialised and continuous experience. The plaintiff said he could count money: no medical evidence confirmed that he could do so repetitively and permanently without ill effects. As to Dr Honner's views, they were stated in the following passage (CAB 77F-I): "His prognosis is not good. He is used to heavy labouring and bar work, involving some lifting, and in my opinion he is permanently unfit to ever return to labouring work, but he would be able to carry out selected duties in a bar, as long as he did not have to carry heavy boxes or trays, or handle kegs. He has been left with significant stiffness and weakness in both wrists, and is very likely to develop a post-traumatic arthritis in his left wrist, and will probably require an arthrodesis of the left wrist." Unfortunately, those who work in bars often have to carry heavy things. They also have to engage in continuous use of their hands in repetitive activities involving some strain, particularly in serving draught beer. The defendant has not established capacity in the plaintiff to carry out that kind of work. As Dr Honner noted, the plaintiff's "overall grip strength" was found by him to be "very weak" (CAB 76E). Bartenders must also open bottles and cans, and the plaintiff cannot do that without the aid of his children or his wife (CAB 12M-O and 24S). He cannot carry a tray. 58 At one point the plaintiff worked two hours over three days at the TAB in Tamworth. He gave the following evidence (CAB 21M-O): "Q. What did you experience when you did that work? A. My hands cramped up and everything at night and they ached 'cause I had to do a bit of pencil writing, you know, writing down results and my fingers just cramped up on me. Q. Could you do the work? A. No." This suggests extreme difficulties ahead in any job involving the use of his hands. 59 The defendant's submissions based on the contention that the casual nature of the plaintiff's job should have led to some reduction in the base figure of probable weekly earnings, and the plaintiff's difficulties in finding new jobs after leaving earlier jobs, are invalid. The question is not what the plaintiff actually earned up to the time of the accident, but what his capacity was up to the time of the accident, and what his capacity is since the accident. Before the accident he had full capacity. After the accident he had a very low capacity. Assuming that a full capacity which could not be converted into income might not justify recovery, in my judgment it would be necessary for the defendant to demonstrate at least a significant risk of a substantial period of unemployment in the period before trial. This it did not do. 60 Before the accident, the plaintiff had shown, for one who had left school before his 15th birthday, a solid record of near-continuous employment over more than 20 years in a variety of labouring and manual jobs. Mr Jones, on whose evidence the defendant's submission relies, accepted that the plaintiff was a willing worker. He accepted that if his competence was less than satisfactory he would have heard of it, and he had not heard of it. He also said that a willing, competent worker would be more likely to be retained than one who was not willing or not competent (CAB 57K-V). 61 I do not understand the basis of the criticism that the trial judge did not take account of Mr Jones' evidence. The trial judge referred to the aspects of it on which the defendant relies and also to the aspects of it on which the plaintiff relies in the following passage (Red 31B-X): "Mr Maiden submitted that I should depart from the usual percentage of the vicissitudes of life set out by his Honour Mr Justice Jacobs in [ Todorovic ] v Waller . He said that the basis upon which I should do that is three-fold. Firstly, the plaintiff at the time of the accident had only been employed for two months as a trades assistant with the defendant; secondly, that that form of employment was casual; three, that the plaintiff has had, albeit constant work, various forms of work, and that there would well be, there might well be as he gets older, some periods when he would not be able to continue on in work because of short periods of unemployment or change in jobs. Mr McIlwaine, on the other hand, referred to the fact that when one looked at the evidence of Mr McDonald, and also the evidence of Mr Jones, that one could see that there has been work continually available over the years as a trades assistant in hangar number 2 doing painting work. And therefore, with the fact that his former employers accept that he was a good worker, accept that he was a person who they could trust doing the job, this, in my view, counters the argument put up by Mr Maiden. In my finding, the plaintiff would more likely than not have continued as a trades assistant, because he would do the hard work, he would do the dirty work which others, I find, might well not, as was described by Mr McDonald. Accordingly, I do not see a basis for departing from the usual amount of vicissitudes of 15% either by reducing it or by extending it." 62 That passage was directed to the question whether the 15% figure for future vicissitudes should be changed to a greater number, but its reasoning equally deals with the submission under consideration so far as it is directed to pre-trial economic loss. 63 The risks of the plaintiff having lost his job if the accident had not happened and of not obtaining another one quickly are in my judgment not significant enough to justify a reduction in the figures for either pre-trial or future economic loss. 64 Mr L King SC, who appeared for the defendant with Mr J A Kernick, argued that the trial judge fell into error at Red 29P-U. The error was to fail to observe that statute had reversed the onus there referred to: see Workers Compensation Act 1987 s 151L. It was submitted that had the error been avoided, it would have led to a finding of higher residual capacity. I am unable to see that this affected the outcome. As the passage is expressed, the trial judge was only recording a submission. In any event, wherever the trial judge perceived the onus to lie, the topics of the plaintiff's condition and the plaintiff's capacity for employment were thoroughly examined. 65 It was submitted that the plaintiff had failed to engage in retraining. Reference was made to CAB 170Y and 103W-104C. In my judgment it has not been demonstrated that there would have been any point in the plaintiff engaging in retraining. 66 Finally, it was submitted orally that the trial judge erred in selecting $543 per week as the base rate of pay and that a figure nearer a base rate of $400 per week should have been selected. There is nothing to suggest that this point was taken before the trial judge. In these circumstances, the point should not be entertained on appeal. Ground 10 67 This ground is as follows: "That His Honour's award for lost superannuation benefits was excessive." 68 The defendant submitted: "26. Loss of superannuation is directly linked in quantum to economic loss and loss of earning capacity, making allowance for the fact that the former is based on gross award rate figures and the latter on net figures. 27. It is the submission of the appellant that if economic loss is adjusted downwards in respect of the past and the future so must the superannuation component of the respondent's damages be adjusted downwards." 69 In my opinion, since the extent of the plaintiff's award in relation to economic loss should not be adjusted downwards, there should be no downwards adjustment in the superannuation component either. 70 Orders I favour orders of the following kind, though I would wish to hear submissions at least in relation to costs. 1. Appeal allowed. 2. Substitute for the verdict of the trial judge whatever the appropriate sum is in light of the adjustment to the figure for non-economic loss. 3. An order relating to costs. 4. An order that the respondent is to have a certificate under the Suitors Fund Act . 71 HANDLEY JA: I agree. 72 POWELL JA: I agree. [Counsel addressed on costs] 73 HANDLEY JA: The orders of the Court therefore will be appeal allowed. Set aside the judgment of the District Court and substitute in lieu judgment for the plaintiff for $792,616.13 and costs with effect from 3 March 1999. Respondent to pay one-quarter of the appellant's costs of the appeal and to have a certificate under the Suitors Fund Act. ********** 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.