Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Upper Lachlan Shire Council v Rodgers [2012] NSWCA 259 Hearing dates: 13 August 2012 Decision date: 23 August 2012 Before: Allsop P at [1] Campbell JA at [52] Barrett JA at [53] Decision: Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: NEGLIGENCE - duty of care - breach - inadequate lighting in car park - car park user tripped on log in darkness en route to vehicle - reasonable requirement for car park operator to take precautions - no contributory negligence NEGLIGENCE - damages - past domestic assistance - sufficient evidence to justify conclusion of 1-2 hours per day of gratuitous care Legislation Cited: Civil Liability Act 2002 (NSW) Interpretation Act 1987 (NSW) Cases Cited: Carey v Lake Macquarie City Council [2007] NSWCA 4 Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380 Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380 Hill v Forrester [2010] NSWCA 170 Pacific Steel Constructions Pty Ltd v Barahona [2009] NSWCA 406 Category: Principal judgment Parties: Upper Lachlan Shire Council (Appellant) Terry Rodgers (Respondent) Representation: R Sheldon SC/G Donnellan (Appellant) D Campbell SC/A Foel (Respondent) DLA Piper (Appellant) Galland Elder Lulham (Respondent) File Number(s): 2009/338667 Decision under appeal Date of Decision: 2011-09-28 00:00:00 Before: Murrell SC DCJ File Number(s): 2009/338667 Judgment 1ALLSOP P: On the evening of 11 October 2008, the plaintiff (respondent to the appeal), Mr Terry Rodgers, then 65 years of age, fell in the darkened car park adjacent to the corner of Spring and Goulburn Streets in Crookwell. Mr Rodgers and his wife had just had dinner across the road at the "Top Pub Hotel". Mr Rodgers was not affected by alcohol. The car park was owned and operated by the defendant (appellant in the appeal), the Upper Lachlan Shire Council. 2Mr Rodgers had parked his car in a north/south direction in the north east corner of the car park during the hours of dusk. Visible at that time, and to Mr Rodgers, was a wooden pole or log lying horizontally in an east/west direction some feet from a brick wall in the same direction. The pole acted as a barrier to further movement by cars in the direction of the wall. The log was at about shin height, somewhat below the knee height of an average adult. Also adjacent to the north east corner of the carpark was a bus shelter. From where Mr Rodgers parked his car there were two ways of reaching the footpath near the corner of Spring and Goulburn Streets, from which one would cross Spring Street to the Top Pub: walk between the bus shelter and the pole in a direct line to the footpath, or, walk in a southerly direction for a short distance past the bus shelter and on to the footpath at the point of the easterly vehicular access to the car park. This was a slightly longer distance, but only by a few metres. 3At the time of arrival, with adequate light at dusk in which to see the structures, either course was perfectly safe. From the driver's side, Mr Rodgers took the shorter route between the bus shelter and the pole. 4Upon their return to the car some time around 8.00 pm the north eastern corner of the car park was in complete darkness. There was no lighting of the car park. The street lights provided illumination along the foot path; but no light shone into the car park where the Rodgers' car was parked. The wall in front of the car also blocked light from a northerly direction. 5Mr Rodgers recognised the potential hazard of the darkness. He told Mrs Rodgers to walk to the exit of the car park where there was light and to wait there. He then set off in the direction of the car by the same route that he had left the car: between the bus shelter and the pole. Unfortunately, he walked into the end of the pole, causing him to fall to the right of the pole, injuring his right knee and right shoulder. 6These injuries were moderately serious. The primary judge entered a verdict for $422,140. The only aspect of that sum in issue was $42,000 for past gratuitous care. 7The primary juge concluded that the Council had breached its duty of care and that Mr Rodgers was not guilty of any contributory negligence. 8There were three substantive complaints on appeal: that the primary judge erred: (a) in concluding that the Council had breached its duty of care; (b) in concluding that Mr Rodgers was not guilty of contributory negligence; and (c) in awarding any damages for past gratuitous care given the requirement of the Civil Liability Act 2002 (NSW) ("CLA"), s 15(3). 9For the reasons that follow all three grounds fail and the appeal should be dismissed with costs. The finding of negligence 10The substance of her Honour's reasons as to liability in her extempore judgment were at [9]-[14], as follows: "[9] The uncontested evidence of Doctor Cook was that the relevant Australian Standard 1986 required a minimum level of lighting of 0.7 lux for car parks under ordinary conditions. Doctor Cook un-controversially characterised the log as a 'particular hazard.' For such an area, the level of lighting should have been a minimum of 10.0 lux. When Doctor Cook undertook a lighting test at what appears to be the precise location where the accident was sustained, he returned a reading of 0.1 lux, the minimum reading that his instrument would record. It appears that, at most, the lighting at the point of the accident was 1% of that required pursuant to the Australian Standard 1986. [10] As I have mentioned, the problems associated with the lack of lighting at that location were, if anything, exacerbated by the fact that a person walking into that darkened area walked into a shadow, coming from an area of some ambient light directly into an area of complete darkness. The fact that the area had almost no light (was 'pitch black', or very close to it) is confirmed by the uncontradicted evidence of the plaintiff's wife that she could not see the plaintiff when she looked for him. She had to go to the car and turn on the headlights in order to locate him, such was the lack of illumination in the area in question. [11] On the question of liability, the defendant's case was that the plaintiff was aware of the existence of the log because he had seen it when he parked the vehicle and he was aware that it was dark in that general area. Consequently, as a reasonable person, he should have taken a different route. He should have walked back to the vehicle entrance driveway and entered via that route. According to Doctor Cook, the lighting at the driveway entrance point would have been better or, to use his words, there certainly would have been more light at the main car park entrance. However, Doctor Cook was unable to indicate (nor did any other witness indicate) just how much more light was available at that point. Doctor Cook was not asked to measure the lighting at that point and did not do so. He conceded that, at the driveway entrance, a person would have been able to see one to three feet in front of them, whereas, according to the plaintiff's evidence (which was not contradicted) at the point where he fell he could not even see his hand in front of his face. [12] In relation to the question of liability, the defendant pressed, but I think only faintly, that the accident was, in effect, solely caused by the plaintiff's own negligence. The defendant also argued that the log or the log in darkness constituted an obvious risk within section 5F of the Civil Liability Act. [13] Prima facie, the defendant is liable for creating a situation where a log is positioned at a height that makes it a substantial obstacle and then the area is left in complete darkness at night time, when members of the public might be expected to park immediately adjacent to the log, as they did on this occasion. The defendant's argument about the route that the plaintiff ought to have taken has difficulties because, although [there is] evidence [that] the driveway was somewhat better lit, there is no evidence as to how much better it was lit, and it is difficult to conclude that a reasonable person would probably have adopted the course suggested by the defendant, particularly when, as here, the vehicle was parked very, very close to the roadway, only a matter of metres from the bus shelter that was on the roadway. [14] As for the issue of obvious risk, an obvious risk is relevant to a duty to warn or lack of duty to warn pursuant to sections 5F, 5G and 5H of the Civil Liability Act. One of the plaintiff's arguments - although certainly not the main one - was that there was no warning of the log and in particular there was no [warning] by the placement of reflectors on the log. The defendant sought to characterise the failure to place reflectors on the log as an argument about warning. It is rather a strained characterisation of that omission. That is not the sort of failure to warn to which the provisions are directed. In the decision of Carey v Lake Macquarie City Council [2007] NSWCA 4, a cyclist rode into a bollard that had been erected on a pathway. The Court concluded that the bollard was not the sort of obvious risk [with] which the legislation was concerned. In this case, the more common sense way of looking at the factual situation is that it is a question of whether the bollard was an obvious risk. In the dark, the log most certainly was not an obvious risk." 11It can be seen from the reasons that there was no direct engagement with the CLA, s 5B, which is in the following terms: "(1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm." 12This was said to be error. 13Whilst an engagement with the terms of s 5B is necessary, that can be implicitly done by reference to how a trial is fought by competent counsel. A brief recounting of the conduct of the trial explains the primary judge's approach. Dr Cook gave evidence as to lack of lighting, lack of compliance with Australian standards and availability of alternative measures should lighting not be provided. No evidence was called in answer to him. There was some debate in cross-examination with him as to whether the passage between the shelter and the pole could be taken to be a walk way, by design or by default, and the characterisation of the pole as a particular hazard. There was, however, no fundamental challenge to his views. Plainly the pole was a hazard and common sense as well as the Australian Standard would have some illumination provided or the area made unavailable for passage without light. The Council conceded that the lighting was inadequate. The gravamen of its case was that the route taken by Mr Rodgers was not a thoroughfare and that he should have taken the route from behind the bus shelter commencing where the car park was better lit; that Mr Rodgers knew of the existence of the log; and that the darkness and the log were thus obvious and known risks. 14In address, counsel for the appellant began by addressing on contributory negligence (CLA, s 5R), then obvious risk (CLA, s 5F) and then breach of duty (CLA, s 5B), saying in respect of the last (Black 188): "5B is about - well it's headed 'General principles' and 5B(1) says that a person is not negligent in failing to take precautions against risk of harm unless (a) that risk was foreseeable, that is, it is a risk which the person knew or ought to have known, (b) the risk was not insignificant, (c) in the circumstances a reasonable person in the person's position would have taken those precautions. 5B(2) states that in determining whether a reasonable person would have taken precautions against the risk of harm, the Court is to consider the following amongst other relevant things: the probability that the harm would occur if care were not taken, the likely seriousness of the harm, the burden of taking precautions to avoid the risk and the social utility of the activity. Your Honour, the question is really whether the council owed a duty to a person in Mr Rodgers' position who knew that there was a log in the darkened passageway which was not a walkway and proceeded to choose that passageway over the open - the wider passageway. I should also - this goes to contributory negligence as well. You heard from Dr Cook his view that the wider passageway did receive light from the street light and that he, on his evidence, could - said that you could probably see 3 feet and perhaps 6 feet in front of you." 15Later in address, the following exchange took place between the primary judge and counsel for the appellant at trial (Black 243): "HER HONOUR: But really, Mr Donnellan, what it comes down to is your argument that the plaintiff should have taken the different route via the driveway. MR DONNELLAN: Yes." 16With the utmost respect to counsel on appeal, now to criticise the primary judge for not expressly engaging with s 5B beyond the controversy put to her is a little unfair. 17Her Honour's approach, in the context, was reasonable. In any event, a more detailed consideration of s 5B would have led to the very same conclusion. The risk of someone tripping or falling over the log in complete darkness was plainly foreseeable. This was a public carpark into which people were invited to place their cars. If returning after dark, a person who had parked where Mr Rodgers had would be required to navigate a distance without any light at all in an area where there was a low hazard over which one could easily trip and fall. There was a reasonable probability that harm would occur. The risk was plainly not insignificant. People can be injured badly in falls on to hard surfaces. A reasonable person would have taken precautions, either of lighting or blocking access to where the pole would have been in darkness. The burden of taking the precaution of some lighting or a barrier was not great. No case was made that it was. Reliance on the CLA, s 42, was expressly abandoned. The obstruction had been created by the appellant and allowed to remain in darkness. There was no social utility in leaving a hazard such as the pole in darkness. 18On the evidence, the route taken by Mr Rodgers was one that was plainly available and, to a point, more convenient. It was readily foreseeable that people would use that route to get to their cars. Whether there was a better route is very debateable. To begin from the other side of the bus shelter would be to begin from a place of better light, but one would still have to walk into the darkened space of the car park. 19The primary judge's conclusion as to negligence was plainly correct. In the light of how the case was presented to her, subject to one matter, there was no error in approach or lack of reasons. If I be wrong about that, such occurred error was not operative for the reasons expressed above. 20The qualification as to her Honour's approach is in the treatment of obviousness of the danger. To the extent that her Honour may be seen to have said that obviousness of risk was irrelevant to the determination of risk, that was, with respect, wrong. It is one factor which may affect the response of the reasonable person. Why, one might ask in a given situation, must I take precautions against a clear and obvious risk which anyone will see and avoid? See generally Carey v Lake Macquarie City Council [2007] NSWCA 4 at [45]-[55] and Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380 at [36]-[58] and the discussion there and cases there cited. Contributory neglience 21The primary judge dealt with contributory negligence at [15]-[16], as follows: "[15] The arguments that the defendant advanced in relation to what the plaintiff ought to have done, i.e. to say that he ought to have used the driveway to the car park rather than walking between the bus shed and the brick wall, were the primary foundation for the defendant's argument in relation to contributory negligence. The defendant relied heavily upon contributory negligence, contending that the level of negligence by the plaintiff was such that, as in Carey v Lake Macquarie City Council, there should be a deduction of at least 50% for contributory negligence. In Carey, the contributory negligence which resulted in the 50% reduction involved three aspects. First, the cycle rider should have realised that he was at risk of encountering the bollard. Second, he was riding at an excessive speed and in an irresponsible manner. Third, he failed to keep a proper look out. Although he had lights, he failed to utilise them in a reasonable manner and therefore did not see the bollard. [16] The present case is very different. There was no suggestion that the plaintiff was walking other than in an appropriately cautious manner. As to failure to keep a proper look out, there was no suggestion that he failed to do so. It is true that he was well aware that he was walking into an area of complete darkness, although he would have stepped into the dark area fairly suddenly and he had only just entered the area when the accident occurred. He was also aware that the log was in the near vicinity and that he was traversing somewhat uneven ground (he knew that the ground cover was blue metal). In relation to the plaintiff's awareness of the log and the fact that he was walking into an area of darkness, these factors create a somewhat borderline situation in relation to contributory negligence. The onus is on the defendant to show that, given this scenario, a reasonable person in the plaintiff's position would have adopted the alternative route of walking up the vehicle entrance to the car park. It has not been clearly established on the evidence that this was a significantly better route; certainly it was a longer route. A reasonable person was entitled to take into account that there was a very short route between the bus shelter and the brick wall on the one hand and a significantly longer route which was better lit, although the Court does not know how much more light was available on the route. On the evidence, it is not established that a reasonable person would have taken the alternative route. It was a 'judgment call.' A reasonable person in the plaintiff's position was quite entitled to elect to take the route that he took. Had there been evidence that the lighting situation was far better via the other route, then the position might have been different. The onus lies upon the defendant. I am not satisfied that there was contributing negligence." 22At first blush, the proposition that Mr Rodgers did not take due care for his safety has some greater attraction. On analysis, however, there is no reason to conclude that her Honour's approach displayed error. 23Mr Rodgers was faced with a choice of route. One was longer, one was shorter (not by much, but sufficient to lead to an understandable and reasonable human preference or choice). Each route started in an area of illumination. Each proceeded into an area of darkness. Mr Rodgers perceived a hazard - that of the darkness. He said in chief (Black 29): "Q. Could you tell us, in your own words, what you did in terms of where you went and what happened? A. I realised it's so dark, I said to the wife, she's on my left hand side, I said 'You go that way and wait'. I stipulated wait. Cause I knew as soon as I looked in that dark area, the whole place was dark, that we were going to have trouble, you know, and I went towards the car, just to turn the lights on so the wife could see, you know. Plus myself and next thing I know I'm on the deck, you know. Q. What, if anything, could you see in front of you as you were walking towards your car? A. Nothing. Q. Were you walking in the same way you had walked out? A. I was walking, that's right, the same way. Q. How close to your car where you when something happened? A. Well I don't know, it was that dark, I couldn't see me own feet even." In cross-examination he said (Black 69, 70, 71): "Q. I think you said when you were giving evidence earlier this morning that you thought, you stopped there and you told her to wait there cause you know it was dark and you knew there'd be trouble? A. I told her I was in trouble, yes. Q. Right. You knew didn't you that there was a car bumper in there, a log? A. I knew that yeah, but I didn't know where it was. ... Q. You knew that on the other side of the bus stop, where you told your wife to stop and you subsequently wandered in, there was a log? A. Yeah. Q. But you say you didn't know where it was? A. That's right. Q. Now, had you thought carefully about it, it would have been more sensible to go in the other entrance wouldn't it? A. Why should I? Q. Because you know that there's not a log there, that you might trip over, you can see that would have been the more sensible course -- A. I took the shortest - do you go the long way when you go out? I don't. I go the short way. Q. So the reason, so you're saying the reason you went on the right hand side of the bus stop is because it was shorter, it was easier? A. Well yes, exactly. Q. But you did it despite knowing that there was a hazard in there and that you couldn't see that hazard? A. I didn't know it was a hazard. Q. Well -- A. I knew after I'd fell over it. Q. Right -- A. It was a hazard, yeah. Q. Mr Rodgers you knew that you could have tripped over that log, if you stumbled upon it, you would fall over it? A. It's hypothetical isn't it?" 24The choice was made by him to enter the car park by a route that was available and shorter. The finding was that he was walking in a cautious manner, keeping such look out as he could, knowing that the log was in the vicinity, but attempting to get to his car. In doing so, in the dark, he hit the log. The assessment as to whether this was a choice reflecting a lack of objective care for his own safety is an evaluative one, dependent in part upon the choices available to him. He could have approached the car from where he asked his wife to stand. Had he done so, he would have had a slightly longer walk over a blue metal surface partly in the pitch dark. He may, in those circumstances, have faced the danger of walking too far, past the door of his car, and tripping over the log. These were not the conscious thought processes of Mr Rodgers, but they reflect the objectively equivocal nature of the choice. I am not persuaded that the choice he made was not reasonable. 25A number of cases were cited to us. No real assistance is obtained from recitation of fact situations in other cases in which factual evaluations about the operation of s 5R were made. Section 5R is in the following terms: "(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time." The question whether a person has taken proper responsibility for his own life and safety and not put himself at risk is undertaken by reference to the straightforward words of s 5R. In this case, Mr Rodgers displayed the standard of care of the reasonable person. The challenge to the award of damages for past domestic assistance 26Section 15(3) of the CLA is in the following terms: "Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided): (a) for at least 6 hours per week, and (b) for a period of at least 6 consecutive months." 27The submission of the appellant was that in the weight of dicta in this Court the statutory threshold is only met if the gratuitous services have been provided for at least six hours per week during an unbroken period of six months: Pacific Steel Constructions Pty Ltd v Barahona [2009] NSWCA 406 at [163]; Hill v Forrester [2010] NSWCA 170 at [8]-[9] and [29]-[37], though see [95] and [105]-[108]. To the extent that s 15(3) may be ambiguous, recourse may be had to extrinsic material under the Interpretation Act 1987 (NSW), s 34(1)(b). The mischief or purpose in the amendments bringing s 15(3) into its current form were to bring the operation of the provision back to the position before Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380. No argument to the contrary was put. In these circumstances it is appropriate to proceed on the basis of the appellant's construction. 28The accident was in October 2008. The hearing was in September 2011. 29The primary judge dealt with the matter at [22]-[23] of her reasons, as follows: "[22] Past gratuitous care was a contentious issue in the proceedings. There was uncontradicted evidence from the plaintiff's wife, which I found quite compelling. In effect, prior to the accident, the couple shared domestic duties, i.e. both internal domestic duties and yard and maintenance duties, on a fifty/fifty basis. Now she performs almost 100%, and he does almost nothing. She also gave evidence that, over the period, she has done about two hours extra work per day of a varied nature. She conceded that the two hours of extra work a day may have taken her considerably longer than someone younger and fitter. She may have been slower, but that is not to the point. I accept that evidence. It is very consistent with the evidence of the plaintiff's occupational therapist. I have a feeling the housework is a counsel of perfection for her, but taking into account the limitations occasioned by her own health problems, two hours a day is quite reasonable. I am more than satisfied that the threshold for an award for gratuitous care under the Civil Liability Act 2002 of at least six hours per week for a period of at least six months is satisfied. [23] Ms Alach, the plaintiff's occupational therapist, has done a number of fairly complex assessments of how many hours were required at certain periods of time. Obviously, more hours would have been required in the first three months after the accident. The plaintiff said that he spent a good deal of that period in bed and effectively unable to do anything. There would also have been an increased requirement for work by the plaintiff's wife in the period after the knee surgery, i.e. from mid August 2010, and after the shoulder surgery, i.e. from 16 December 2010, when the plaintiff was discharged with his right arm in a sling. Taking into account those factors, the period of two hours a day or fourteen hours a week referred to by Mrs Rodgers appears quite modest. Based on Ms Alach's assessment and deducting the amounts that Ms Alach has allowed for emotional support (which the plaintiff agrees are not permissible), the plaintiff has put a claim of $42,000 for past gratuitous care. The calculation, based on fourteen hours a week at the statutory rate, would result in an amount of more than $52,000. In relation to past gratuitous care I allow the sum of $42,000." 30The appellant's complaint about this approach was that her Honour was in error in accepting the figure of at least two hours per day. In particular the appellant criticises the conclusion that the estimate of two hours per day was consistent with the evidence of the occupational therapist called by the respondent (plaintiff), Ms Alach, and of the plaintiff himself. 31It is necessary to examine the evidence in some detail. 32Mrs Rodgers gave direct evidence on these matters. Her evidence was accepted by the primary judge. No suggestion (at trial or on appeal) was made that her evidence was deliberately exaggerated. It was submitted on appeal that when regard is had to the totality of the other evidence, her estimate of two hours per day should be viewed as unreliable. 33In chief, Mrs Rodgers was asked at some length about what the plaintiff did around the house, both inside and outside. He would take the washing out and assist with hanging it up; sometimes he did the washing; he would get the vacuum cleaner out; the cooking was done "50/50", including preparation, cooking and cleaning up (estimated at 20 minutes per day); he used to help every day with "making beds and things like that"; he would help with cleaning things, such as the curtains; he used to do the dusting; they shared the cleaning of the bathroom and shower, including scrubbing tiles on the floor; he looked after the chooks outside; they shared "50/50" the maintenance on the chicken coop; he attended to a vegetable patch; he also did gardening and maintenance. 34After the accident, some of the tasks that the plaintiff had done were left unattended: gardening and home maintenance, and the vegetable patch, although Mrs Rodgers did attempt some work on the vegetable patch. 35Mrs Rodgers was then asked what her husband did after the accident. She said he did none of what he had done beforehand. Some things were not done: anything involving reaching overhead, the gardening and maintenance. She gave the following evidence: "Q. What sort of things were you doing to help him after the accident in a way that you weren't doing for him before the accident? A. Well I was bringing the wood in, looking after the chooks, looking after the rabbits when - and then, it just got too much for me and I got rid of the lot. Q. Well that wasn't until recently - more recently. I'm focusing on - I should have made it clear, it's my fault. I'm focusing on the period from his accident to when he had the knee surgery? A. Yep. Q. Through that period, you were doing those outside things you just described? A. Yes. Q. Were there additional things you were doing inside that he was doing before that he wasn't then able to do? A. Well I was trying to but - do things that he used to do for me, and I just couldn't. Q. You said it was 50/50 on a lot of things? A. Yep. Q. Did that 50/50 arrangement change? A. Yes. Q. What? Did it become 60/40, 70/30, 100/0 - what - A. Well it was virtually zero. Q. Zero/100 your way? A. Yep. Q. I know it's always difficult to work these things out, but doing the best you can, if you were to take on a day-by-day, week-by-week basis, about how many extra hours were you doing things for Terry because he couldn't do them himself as a result of how he was after the accident? A. Can you repeat it? Q. You know how you told us that you were doing extra work around the house and outside the house for him - A. Yep. Q. - because he couldn't do it after his accident - A. Yep. Q. - how long would it take you each day extra [compared] to how it was before? A. Ages, I just - Q. I know it's hard, but in terms of an hour or hours - A. Hours. Q. - would you say two hours a day or more? A. About two hours. Q. Did it vary day by day? A. Yes. Q. Could it be a little bit less some days, little bit more others? A. Yes. Q. Obviously I take it because of problems you had, you were a little slower doing some of these things than might somebody who didn't have the problems you had, is that right? A. Yes. Q. Did you want to do all those things, or did you do them for some other reason? A. I did them because I realised he couldn't do them for me. Q. Would you have, if you had the financial resources, preferred to have someone else do those things for you? A. Yes I would." 36In cross-examination, Mrs Rodgers confirmed that cooking was 20 minutes per day, with his help (especially in preparation) about 10 minutes per day. The curtain cleaning was accepted to be spring cleaning. Dusting was once a week. She could not give an estimate of how long the dusting took. She could not recall how long the bathroom took to clean. 37The cross-examination did not elicit sufficient material to undermine her general conclusion of two hours per day, sometimes more, sometimes less. 38The appellant's attack focused on three periods: (a) 11 January 2009 to 16 August 2009, being a period after an initial period of 13 weeks following the accident; (b) 29 September 2010 to 16 December 2010, being a period after a period of convalescence following knee surgery; (c) 5 January 2011 to 26 September 2011, being a period after another period of convalescence. 39These periods are taken from Ms Alach's report. She was the plaintiff's occupational therapist. Ms Alach's report was prepared after consultation with both the plaintiff and Mrs Rodgers. Ms Alach stated in [7.3.1] of her report: "Past gratuitous care requirements are based on Mr Rodgers' and his wife's reports of assistance provided to him at various periods since the accident. It is up to the Court to decide whether that amount of assistance was reasonable and necessary given his circumstances." 40In a period identified as 11 January 2009 to 16 February 2010, Ms Alach identified: (a) personal care: 2 hours/week; (b) domestic assistance: 2.75 hours/week; (c) gardening (mowing the lawn and additional gardening tasks): 2 hours/week; (d) home maintenance (assistance to feed the chickens, stack wood and other miscellaneous tasks): 2 hours/week; and (e) emotional support: 4 hours/week, totalling 12.75 hours/week. 41Emotional support was not pressed. 42It was submitted that gardening was ignored and maintenance was not done and both could be eliminated. The evidence is not so categoric. The plaintiff said in cross-examination: "Q. Do you remember, you wouldn't have been doing any gardening when you were in that state would you? A. No, no way, nothing. Q. Did your wife do the gardening? A. No she tries. Q. Did she do - do you remember her doing it - I mean she was taking care of you at that stage, was she doing the gardening as well? A. She was trying to but she won't pick her mess up. Q. So it got- A. I'll sack her. Q. So it got a bit out of control did it? A. Sorry? Q. Got a bit out of control did it, the garden? A. Yeah, yeah. Q. And I don't suppose you would have been doing any handy man jobs in that period? A. No. Q. And your wife, she's not handy is she? A. Not at all. ... Q. Again just to be clear, this is the period in the first half of 2009, were you mowing the lawn then? A. 2009? Q. First half? A. Partly, some mowing, yes. Q. You were doing some mowing? A. Yeah tried to. Q. But not as often as you'd like or? A. Yeah. Q. And were you doing a bit of gardening? A. Little bit. Q. But was the gardening - was the garden a bit unkempt, bit out of control then? A. Yes it was. Q. You weren't able to keep on top of it, did your wife help? A. Not really, she's pretty busy in the house." 43Mrs Rodgers said in examination: "Q. What did you see about him trying to cut the wood? A. Well he was in pain. Q. Well you could see that? A. Yes. Q. Did he stop or did he continue? A. No, he stopped. Q. Had you ever seen him do that before? A. No. Q. Did you then make a decision about cutting wood? A. Yes. Q. You got someone to do it for you? A. Yes. Q. What, if anything, did you see about him pruning the trees that you've told us he used to do after the accident? A. They were left. Q. What about the vegetable garden and I'm talking about in the period between the accident and up until when he had his knee surgery, what did you notice about the vegetable garden during that period? A. Overgrown with weeds. Q. Did he do any work in it at all? A. No. Q. Did you get any vegetables out yourself? A. I tried. Q. When you say you tried, were you successful or not? A. No. Q. Why not? A. Well, I just couldn't manage it. Q. Did you try to do any pruning to the trees or did you decide that wasn't something you could do? A. I just said I couldn't do it and I left it. Q. What about the lawn that you've told us about? A. I got somebody I to do -- Q. The garden, what happened to that? A. They were just left." 44This evidence makes it difficult to reconcile the not entirely commensurate categories of activity undertaken by Mrs Rodgers and variously referred to in her oral evidence and in the reports of the expert, based in part on what she and her husband said. 45The expert's report of Ms Hammond tendered by the appellant had a number of comments about the assessments by Ms Alach. For instance, she said about the domestic assistance, gardening and home maintenance (after agreeing about personal care): "[Domestic assistance -] Disagree Mrs Rodgers has always had prime responsibility for internal domestic tasks. Mr Rodgers' injury did not impact on her performance of her domestic responsibilities. [Gardening -] Disagree Gardening was largely ignored. The couple paid for a lawn mowing service on occasion and should be reimbursed for the cost of the same. [Home Maintenance -] Disagree The couple paid for wood delivery and should be reimbursed for the same. No other allowance for home maintenance is recommended." The conclusions were not drawn from speaking with the plaintiff or Mrs Rodgers. 46For the period 29 September 2010 to 16 December 2010, Ms Alach identified: (a) personal care: 2 hours/week (b) domestic assistance: 2.75 hours/week (c) gardening 2 hours/week 47The same evidence of the plaintiff, Mrs Rodgers and Mr Hammond qualified this. 48The surrounding evidence is insufficient in my view to destroy as valueless the evidence given by Mrs Rodgers of about 2 hours per day. It can be accepted that it was an estimate. The statute requires 6 hours per week. That is a little under 1 hour per day. The judge allowed $42,000 being equivalent to under two hours per day but more than 1 hour per day. 49Fairness in the conduct of the trial required that the evidence of Mrs Rodgers be confronted with the detail said to require a conclusion of no more than 4.75 hours. The balance of the evidence did not, without more, require the rejection of Mrs Rodgers' estimate and its replacement by 4.75 hours per week based on Ms Alach's report. 50The appeal in this regard is not made out. 51Thus, I would dismiss the appeal with costs. 52CAMPBELL JA: I agree with Allsop P. 53BARRETT JA: I agree with Allsop P. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 August 2012