Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343 Hearing dates: 15 August 2012 Decision date: 25 October 2012 Before: Allsop P at [1] Campbell JA at [63] Meagher JA at [64] 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 - damages - assessment of non-economic loss - assessment of future economic loss - rejection of "buffer" approach by trial judge - assessment of past and future domestic assistance - factual finding of seven hours per week of gratuitous care by husband - no requirement of objective standard when assessing past domestic care - no error by trial judge Legislation Cited: Civil Liability Act 2002 (NSW), ss 13, 15, 16. Cases Cited: Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 Crystal Wall Pty Ltd v Pham [2005] NSWCA 449 Miller v Galderisi [2009] NSWCA 353 Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 Wynn Tresidder Management Pty Ltd v Barkho [2009] NSWCA 149 Category: Principal judgment Parties: Coles Supermarkets Australia Pty Limited (Appellant) Maria Haleluka (Respondent) Representation: Mr C Bridge SC, Mr S Torrington (Appellant) Ms S Norton SC, Ms L Goodchild (Respondent) Lander & Rogers (Appellant) Brydens Law Office (Respondent) File Number(s): 2010/261191 Decision under appeal Citation: Haleluka v Coles Supermarkets Australia Pty Ltd [2011] NSWDC 47 Date of Decision: 2011-06-23 00:00:00 Before: Elkaim SC DCJ File Number(s): 2010/261191 Judgment 1ALLSOP P: On 19 August 2008, the respondent was injured when hit by a laden trolley in one of the appellant's supermarkets. The respondent was squatting examining products on display when struck by a flat top trolley laden with boxes pushed by an employee of the appellant. The primary judge, unsurprisingly, found the appellant liable in negligence and found the respondent not to be contributorily negligent. 2On appeal quantum was in issue. The damages awarded by the primary judge were set out in a table at [55] of his reasons: Non-economic loss $115,000.00 Out of pocket expenses $8,240.04 Future medical treatment $40,000.00 Past economic loss $8,500.00 Future economic loss $111,992.80 Lost superannuation benefits $13,254.20 Past care $22,540.00 Future care $177,826.40 Total $497,353.44 3The three complaints on appeal were: (a)The primary judge's assessment of non-economic loss of 30 per cent of a most extreme case for the Civil Liability Act 2002 (NSW), s 16, was said to be erroneous and should have been 22 per cent of a most extreme case. (b)The correct assessment of future economic loss was said to be to award the respondent a buffer of $40,000. (A change to the amount of superannuation flowing from that was also called for.) (c)There should have been no award of damages for past or future care. The assessment of non-economic loss The primary judge's reasons 4The primary judge's reasons describe the respondent, her background and the effect that the injury has had upon her, as follows. 5The respondent was born in 1960 and left high school in 1975 with the School Certificate. She became a registered nurse in 1980. From that time she engaged in a range of employment, generally associated with nursing. For instance, she worked in a high level care spinal unit, at a weight reduction centre, in the prison service and at an aged care facility. She had also worked for pharmaceutical companies and on one occasion for a film company as the nurse on the set. She had attempted various courses. She completed a Bachelor of Health Science at the University of New England. The respondent married in 1986. This relationship ended in 2002. In 2005 she married her present husband. There were no children from either marriage. However, in June 2009 the respondent and her husband became the long term foster carers for a ten and a half month old child, they are hoping to adopt. He has some developmental abnormalities, such as a mild hearing loss, diminished muscle tone and delayed speech. He is also very active. 6The respondent was diagnosed with breast cancer in January 2008. She had surgery and radiation therapy. While recuperating from surgery she completed her bachelor's degree at the University of New England. The primary judge remarked upon this as a measure of her fortitude. 7The respondent had had low back pain in October 2006 and at that time consulted an osteopath. 8Prior to the accident, following the successful treatment for breast cancer, the respondent said that she was feeling happy and looking forward to enjoying life. By August 2008, she was planning to return to work initially on a part-time basis and then, if happy in her job, she would progress to full-time work. Of course, the taking of responsibilities in relation to the foster child would have, in any event, affected those intentions, as the primary judge found. 9The respondent and her husband lived and remained in a large two storey free standing house which has four bedrooms and a number of bathrooms, a study, a family room and a billiards room. She attended to the inside of the house and he to the outside. 10I will refer in a little more detail in due course to the views of the doctors who gave evidence in the proceedings. For present purposes it suffices to deal with the primary judge's findings about the respondent and the medical evidence. 11The respondent was referred to physiotherapy and to the osteopath whom she had earlier seen. She described her right hip pain over the months that followed the accident as "dreadful". I interpolate at this point that the primary judge found the respondent to be a truthful and genuine witness who did not exaggerate. No attempt was made to challenge this credit finding. 12The respondent has continued to have treatment and seek medical advice. Her right hip never feels normal and there is low dull pain. At worst she has a heavy throbbing pain, the latter occurring three or four times a week. She takes pain relief to combat the increased discomfort. Certain activities aggravate her pain such as too much walking and carrying weight. 13The respondent's low back continues to be a problem and the respondent said that it seemed to be more uncomfortable when her right hip was also aggravated. There were times when her low back did not cause any discomfort. 14The respondent said that she found housework very difficult because of her hip. It was now done by her husband and with some help from her mother. The respondent's husband, a cabinet maker, since the accident has left for work very early in the morning (3.30 am) to enable him to return home at 1.00 pm and carry out domestic duties. He has given up overtime and work on Saturdays for the same reason. He does most of the housework although the respondent still cooks and does some aspects of the washing and ironing. 15The respondent estimated that on average her husband took about seven hours per week to do the necessary tasks. It should be noted at this point that the primary judge said at [18] of his reasons: "This impression affirmed my impression of her honesty. It was reasonable and far from the embellished estimates one often receives in cases of this nature. It was also not challenged although the plaintiff's capacity to do the work was questioned." 16As to the respondent's evidence about her own capacity, the primary judge found that this was corroborated by her husband who said that the respondent "suffers for doing things". It can be taken from the primary judge's reasons that he accepted Mr Haleluka's evidence. 17The respondent gave evidence that in respect of the future she would prefer to have paid care. The primary judge considered this a reasonable request considering the sacrifices Mr Haleluka had been making to find time for domestic activities. The respondent estimated that the house would require some six hours per week, leaving her husband to do about two hours per week of domestic activity. I will return to the question of domestic assistance in due course. I deal with this evidence at this point for its relevance to her condition and non-economic loss. 18The evidence of the respondent and the reasons of the primary judge recognised the effect that the arrival of the foster child in June 2009 would have had, in any event, on the respondent's life. The respondent said that but for the accident she would have tailored any return to work around the child's needs, perhaps working one or two days a week and then increasing her hours when he went to school. 19The primary judge adverted to the cross examination of the respondent to the effect that she was capable of many of the lighter jobs that she had done in the past. It was suggested that she could work at the Red Cross or a medical clinic or at a doctor's surgery. The respondent agreed that she could, but said that she would be unreliable. She felt that if she had a job on a set day per week, there may be days when she could not attend because her hip was particularly bad on that day. 20The primary judge recited at [25] of his reasons evidence from the respondent that he described as graphic and to his observation sincere, in which she described the upset that had flowed from her hip injury. The primary judge summarised the matter as follows: "The optimism that had blossomed after her recovery from breast cancer has been destroyed by the pain she suffers from her right hip. The plaintiff said that she 'hates' what has happened to her. She said 'this has just wrecked everything'. She said she 'should be enjoying [her foster child]'. She puts on a subterfuge so that the child does not suffer and endeavours to do things despite the pain she endures. She was anxious that '[the child] doesn't suffer' because of her disability." 21The primary judge described the treatment of the respondent. She sees a physiotherapist from time to time and attends the osteopath. She takes a muscle relaxant that helps with severe spasms. She is reluctant to have cortisone injections but will undergo surgery if necessary. 22The primary judge then adverted to the film footage that was in evidence (Exhibit 1 tendered by the appellant and Exhibit C tendered by the respondent). The primary judge's findings about this film were at [27]-[29] as follows: "[27]The plaintiff was shown DVD footage that had been exposed of her (Exhibit 1). The footage includes a good deal of time during which the plaintiff is carrying [child's name] on her right hip. I asked her why she carried him on this hip rather than the left. She said it was because she was right handed and her right arm was stronger. This was consistent with an earlier answer in which she said that she used her arm to take the weight of [child's name]. [28]It was also put to the plaintiff that she was able to walk freely. This was not my observation of the footage. I thought there was a limp, in particular demonstrated by the extra raising of the plaintiff's right foot. The limp is not marked but I thought it was apparent. I also noticed that the plaintiff, when she bent down, did so making use of her knees rather than through flexion of her lumbar spine. [29]The DVD tendered by the plaintiff (Exhibit C) clearly depicts the plaintiff rubbing her hip consistent with her evidence of pain in that location and the 'catching' sensation she described." 23I have examined the film and would not amend any aspect of the primary judge's finding. 24The primary judge then examined the medical evidence. Dr Edwards, whose evidence was tendered by the appellant, stated in his report of 12 November 2010 that the respondent appeared genuine in her complaints, but thought she was fit for her normal work duties and for any activities she may wish to attempt. The primary judge rejected this evidence and preferred the evidence of Dr Deveridge. No attempt was made on appeal to contest the preference for Dr Deveridge's evidence. Therefore, the assessment of the non economic and economic loss, to the extent that it depends on medical evidence, should have its source in that of Dr Deveridge. 25Dr Deveridge had little doubt about the link between the accident and the respondent's ongoing condition. The primary judge summarised Dr Deveridge's views at [35]-[36] of his reasons: "[35]In case logic does not suffice Dr Deveridge (Exhibit E) had little doubt about the link between the accident and the plaintiff's ongoing condition. In his report dated 5 May 2011 he expressed his opinion in this way: 'The clinical presentation and medical imaging indicates that there has been a derangement in the region of her right hip - a gluteal tendinosis and a cleavage tear of the labrum of the hip joint. This is consistent with the clinical presentation of "deep hip pain" stemming from the original injury. The mechanism of the injury described could well have resulted in post traumatic changes of the nature demonstrated.' [36]It is further worth noting that Dr Deveridge thought the plaintiff's condition was 'chronic and stabilised'. He did not 'anticipate any significant change in the foreseeable future'. He also was of the view that the plaintiff would have difficulty with the demanding tasks associated with nursing." 26At [38] of his reasons the primary judge expressed his conclusion from the acceptance of the plaintiff's evidence and the opinion of Dr Deveridge as follows: "I am satisfied that as a result of the trolley striking the plaintiff she suffered injury to her right hip as well as an aggravation of pre-existing degenerative change in her low back. I am satisfied that her injury will continue to affect her for the remainder of her life, although there will no doubt be periods when the severity fluctuates." 27At [39] the primary judge also said: "The depth of feeling expressed by the plaintiff about her condition emphasises the significance of the effect it has had upon her." 28The primary judge then at [39] drew his conclusions about non-economic loss as follows: "The defendant submitted that non-economic loss should be in the order of 22% of a most extreme case. The plaintiff submitted that 33% was the right assessment. In my view the plaintiff's figure is closer to the mark and I assess non-economic loss at 30% of a most extreme case. This equates to $115,000 pursuant to Section 16 of the CLA." The argument of the appellant and its resolution 29The appellant's written submissions could be described as less than helpful. After citing some aspects of the evidence perceived to be favourable to the appellant's case, the submissions asserted that the primary judge's view was excessive, in particular by reference to the surveillance film. No reasoned basis was put for the challenge. 30In oral address, Mr Bridge SC who, with Mr Torrington, appeared for the appellant put the matter essentially as follows. 31He submitted that when one had regard to the medical evidence and the degree of restriction of movement (or limited nature of it) shown on the film, 30 per cent of a most extreme case was not reasonably open. 32The parties were not at issue as to the relevant standard of review. It is in the nature of a discretion which is neither scientific nor normative: Crystal Wall Pty Ltd v Pham [2005] NSWCA 449 at [49] and Wynn Tresidder Management Pty Ltd v Barkho [2009] NSWCA 149 at [110]-[111]. Here no specific error was pointed to; rather, it was submitted that the percentage was outside any legitimate or reasonable range - so excessively high as to reflect a wrongful exercise of discretion. 33I do not accept the criticism of his Honour's assessment. The respondent was 50. On her evidence she lives with pain every day, some days being worse than others. She has difficulty playing with her child. She has a degree of immobility. When one examines the medical evidence there is a sufficient basis upon which to found the conclusion. The general practitioner Dr Aitken's letter and report discloses muscle spasms and pain, reduction in flexion and adduction to the right hip. The osteopath reported chronic hip and back pain, and the lack of likelihood of complete recovery or the resolution of hip pain. Dr Deveridge reported restrictions of movement and pain, mild trochanteric bursitis and mild gluteus medius tendinopathy, residual disability, suspected further derangement of the hip joint and derangement of the right hip. Dr Matalani reported pain, use of Panadol and Valium (for spasms), soft tissue injury to the right hip and a cleavage tear of the labrum, likely to develop into mechanical symptoms in her right hip and aggravation of degenerative changes in the lumbar spine. 34Of course, the assessment is not a mere list of medical conditions. However, when one absorbs the medical reports, as no doubt the primary judge did, and weighs them with the evidence of the respondent which his Honour accepted of constant pain and the prevention of her doing housework, the conclusion of 30 per cent of a most extreme case was open to the primary judge. Future economic loss 35The primary judge dealt with future economic loss at [44]-[46] of his reasons as follows: "[44]In respect of the future and for purposes of Section 13 of the CLA, I am satisfied that but for the accident the plaintiff would have returned to part-time work at the beginning of 2013 and then gradually built up her hours, perhaps over two or three years to fulltime work which she would have maintained to age 65. I am also satisfied that the vicissitudes should be slightly higher than normal, at say 20%, to take into account that the plaintiff's care for and devotion to [her foster child], bearing in mind his developmental problems, may have increased the likelihood of her perhaps not reaching fulltime employment as soon as anticipated and there being periods when she did not work. The base rate for nurses of the plaintiff's experience seems to be in the order of about $1,000 per week net (Exhibit D). The plaintiff has submitted that she should receive half of this amount for the remainder of her working life, reflecting a 50% incapacity. [45]The defendant suggested a buffer around the $30,000 mark. While I agree that 50% diminished capacity is about right I do not think it should be applied to a wage of $1,000. Firstly, for reasons I have set out above, I think the commencement of future economic loss should be delayed until 2013 and it should then reflect a graduated return to the work force. Taking these matters into account I will assess the plaintiff's future economic loss at an average of $300 per week for 13 years, deferred for 18 months and then reduced by 20% for vicissitudes. On the 5% tables the calculation is as follows: 300 x 502.3 x .929 x .8 = $111,992.80. [46]The total amount I have awarded for economic loss is $120,492.80. The lost superannuation benefit on this amount, at 11%, is $13,254.20." 36It can be seen immediately that the primary judge referred to the Civil Liability Act 2002 (NSW), s 13. That section is in the following terms: "Future economic loss-claimant's prospects and adjustments (1)A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2)When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3)If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted." 37One can see from his Honour's reasons that he was attempting to follow the mandate of the legislature. He was first satisfied that but for the accident the plaintiff would have returned to part-time work at the beginning of 2013 and then gradually built up her hours over a period to full-time work which she would have maintained to age 60. His Honour then calculated the vicissitudes at higher than the usual 15 per cent to take into account the plaintiff's care and devotion to her foster child. His Honour can be seen to be dealing with the matters in s 13(2). His Honour then dealt with incapacity and calculated that at 50 per cent, thereby also dealing with the contents of both ss 13(1) and 13(2). The use of $300 is more favourable to the appellant than merely applying 50 per cent to $1,000. The primary judge, though not elucidating precisely why he fixed upon $300, can be seen to have taken account of her work history, available work and effects of the incapacity. 38The primary judge rejected a simple buffer of $30,000. Rather, he took a percentage incapacity, an intention to resume full-time work over time and a proportion of the monetary sum for nurses as that which had been lost. The approach appears to have been both conservative and not necessarily entirely favourable to the respondent. 39The appellant's submissions once again reverted to the video surveillance. They also were based upon the acceptance by the respondent that she was capable of doing some of the jobs she had done in the past. It was also submitted that upon the medical reports there was minimal interference with the plaintiff's "economic ability". The preference for a buffer-style approach was urged. 40In oral address Mr Bridge put it that the only appropriate way to look at the facts was by way of buffer. He said that the respondent's history did not bear out the likelihood of her going back to nursing had she not had the injury. It was submitted that the respondent had undertaken a number of jobs in the past which were still in all likelihood available to her. 41The difficulty with criticising the primary judge's approach is that the latter conforms in substance with the evidence of the respondent. She was asked what would in all likelihood have been her course of action had it not been for the accident, bearing in mind that she undertook the care of her foster child in 2009. She accepted that the arrival of the child would have modified her plans. She said that she would enter the workforce sooner rather than later. At a point when the child was at school, whether a special school or a mainstream school, she would have time to go back to work. She said that she would re-enter the workforce perhaps in a year's time or two years' time. Her intention was to begin to go back to work one or two days a week, of which she was capable, and as the child settled down she would increase her workload depending upon the job. She said that when her foster child got to more mature years she would increase to full-time work because that was part of her intended running of the household. The respondent's evidence was that she would stay in the nursing profession. That evidence was not challenged. In short, she intended to work part-time around her foster child until his schooling permitted five days a week full-time employment. She was skilled as a nurse; and she had a related tertiary qualification. The approach of the primary judge seems entirely sensible. 42I see no basis to require his Honour to approach the matter by way of a buffer. The underlying facts were not so imprecise and impossible of assessment as to require that. In these circumstances, there is no call to discuss the proper approach to buffers and the operation of s 13, as to which see generally Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 at [84] and Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 at [33] and following paragraphs. 43It can be accepted that the respondent was a skilled and resourceful person who in the past had undertaken a variety of roles and in the future may do so again. It is also clear, however, that accepting her evidence and the medical evidence, the approach to the impairment of earning capacity based on full-time employment was entirely legitimate. There was no basis to think that because of the kinds of employment in which the respondent had engaged in the past, there was any sufficient uncertainty about impairment of earning capacity so as to mandate the application of a buffer. 44It can be accepted that the respondent now has a tertiary qualification. However, that degree was particularly fitted to employment in nursing. The evidence does not support a conclusion that her opportunities are now so meaningful and diverse that assessment of damages for impairment of earning capacity would be misleading by reference to full-time work in the nursing profession. 45In my view there is no foundation for the conclusion that the primary judge erred in failing to take a $40,000 buffer (being equivalent to approximately $100 per week). 46This part of the appeal fails Domestic Assistance 47The primary judge dealt with this at [47]-[54]. As to past domestic assistance, the primary judge accepted the respondent's evidence that her husband provided 7 hours a week care. The challenge was to the need for him to undertake it because, it was put to the primary judge, the respondent had the capacity to do it. This issue was resolved by a finding (based on credit) accepting the evidence of the respondent that she could not do the work. Thus, the conclusion as to past domestic care was for gratuitous services, with the preconditions of 6 hours and 6 months satisfied. 48On appeal, this credit finding was challenged on the basis that the primary judge did not balance what was in the video surveillance with the respondent's oral evidence. This submission should be rejected. The primary judge had regard to the contents of the surveillance video. Having viewed that surveillance film, I find no error in his Honour's acceptance of the respondent's evidence. 49The appellant also relies on evidence of Dr Matalani that was led on behalf of the respondent. His professional opinion was as follows: "I estimate that because of her injuries and resulting symptoms, she requires domestic assistance in the vicinity of 4-5 hours per week." 50The primary judge, however, commented upon the evidence of Dr Matalani (in the context of discussing future paid assistance) by reference to its assumptions in [52]-[53], as follows: "[52]A more sound basis for adjusting Dr Matalani's hours stems from his assessment being based on a four bedroom house with two bathrooms and a large yard. As seen above, the evidence was that the house is more extensive so that extra time would be needed in its cleaning. Against this approach, however, is Dr Matalani's inclusion in the tasks to be performed of 'gardening, lawnmowing, external maintenance of the house such as cleaning gutters and heavy handyman's work' . [53]I do accept, especially in a case where I have entirely accepted the plaintiff's evidence, that her opinion about the number of hours needed to clean her house is significant. However, I must also have regard to medical opinion concerning her capacity to carry out various tasks. Dr Matalani provides this opinion. It seems to me that balancing his opinion with his incorrect history of the size of the house, but on the other hand the inclusion of tasks the plaintiff would not do in any event, that a reasonable assessment for paid care in the future is five hours per week. This also takes into account the likely efficiency of paid cleaners. [54]The plaintiff is now almost 51 years of age. Her life expectancy is a further 37 years. The only hourly rate of which there was evidence is $39.80 (Exhibit D). I will apply that rate. On the 5% tables the calculation is as follows: 893.6 x 39.8 x 5 = $177,826.40." 51The evidence of Dr Matalani was said to be relevant to both past and future domestic assistance. The past assistance was gratuitous. Acceptance of Dr Matalani's opinion was said to undermine the seven hours spent by the husband according to the respondent's evidence. It was also said to raise a question of construction as to what s 15 is compensating: how long a person takes to do voluntary or gratuitous assistance or what is reasonably required. 52No part of s 15 refers to the services being assessed as though they were performed by professional providers or by reference to any posited objective standard. There must be a reasonable need for the services: s 15(2)(a). The phrase "gratuitous attendant care services" is defined as meaning the services that have been or are to be provided by another. Section 15(3) sets a time for those services by that other person. The number of hours is a factual question, on what has occurred or will occur. Here, the evidence of the plaintiff was accepted: that because of the accident she could not do the housework. There was, therefore, a reasonable need for the services of domestic duties to be provided by her husband. He provided them. It took him seven hours. This was longer, on the findings, than the five hours per week that would be taken by paid professional cleaners. 53The maximum rate for gratuitous assistance is set by ss 15(4) and 15(5). It will likely be, as here, significantly less than the sum for professional rates. Here the agreed figure for gratuitous care was $23 per hour and for paid care $39.80 per hour. Sections 15(4) and 15(5) provide a limit; they do not prescribe an amount. Parties often agree the sum (as they did here). If a gratuitous provider of services was sufficiently slow or inefficient to warrant treatment in the evidence, the appropriate way to reflect this is in the sum awarded per hour. 54Here there was a demonstrated need for housework by the acceptance of the respondent's evidence as to her inability to do it. There was evidence accepted by the primary judge of seven hours per week for over six months. That Dr Matalani expressed an opinion that, properly understood, founded a conclusion that five hours of paid professional assistance was needed, did not make unacceptable the evidence of the respondent that her husband took seven hours. This is especially so in circumstances where Dr Matalani's qualifications for such an opinion (as opposed to medical evidence as to need) are far from clear. 55It was submitted that one only gets payment for satisfying the reasonable need created by the injury. Thus, it was submitted that some objective assessment of reasonable time is implicit in the satisfaction of the reasonable need. But the section does not identify some standard of efficiency in delivery of the services. The services by the person who is providing them gratuitously must be in response to a reasonable need. Those services must be provided for a specified time. The section does not require only those services of a length of time reasonably or professionally provided by some posited objectively skilled person. The section is dealing with the commonplace circumstance that a family member will take up tasks that he or she may not normally do. There is no warrant to imply into s 15(3) a requirement that the time taken to perform the services must be referable to some objective standard of efficiency. 56I see no error in the primary judge's approach to past gratuitous care. 57Criticism was made by the appellant of the reconciliation of Dr Matalani's evidence. It was said to be speculation. I do not agree. The primary judge was alive to the inaccuracies and deficiencies in the assumptions and adjusted the evidence accordingly. That was part of the legitimate process of fact finding. 58As to future care, the primary judge allowed 5 hours per week for the rest of the respondent's life: see [53]-[54] of the reasons. 59The written submissions did not focus upon any particular error in the finding of paid care other than lack of necessity. The evidence, however, gave ample basis for paid assistance. The voluntary assistance by the husband was coming at a financial cost to him and the family. Not only was he leaving home at 3.30 am and commencing work at 4.30 am in order to be home in the early afternoon to attend to household chores, but also he was giving up overtime and Saturday work to enable him to carry out domestic duties. That evidence justified paid assistance. The evidence was that the husband was making economic sacrifices to do domestic duties which a paid professional would take five hours per week. It was legitimate to provide for that need at commercial rates to enable the husband to cease sacrificing economic benefits to provide it. 60Thus, I do not see any reason why paid care at five hours per week should not be awarded. In oral address, it was submitted by Mr Bridge that the judge failed to address (in the lifetime award) the recognition that age alone was likely to create a similar need for domestic assistance in later years: see Miller v Galderisi [2009] NSWCA 353 at [20]. Further, some degree of gratuitous assistance could be reasonably be expected from the husband. 61The matter was only lightly touched on in oral argument. No real evidential foundation was laid for the argument. As the years advance, it can be accepted that there will be a need for assistance with housework and domestic chores because of age. That said, for some, as age progresses the tortiously caused injuries may magnify the need for assistance and earlier than would otherwise be the case. It is also reasonable to expect a smaller house in later years. Little assistance was given by the parties in address, or in evidence about these matters. The primary judge did not address this because it was not put to him. In these circumstances it is not proper to interfere on appeal with an approach which if challenged might have been met by evidence. 62The order that I would make is: appeal dismissed with costs. 63CAMPBELL JA: I agree with Allsop P. 64MEAGHER JA: I agree for the reasons given by Allsop P that the appellant's challenges to the primary judge's assessments of non-economic loss and future economic loss fail. I also agree for the reasons his Honour gives that the primary judge is not shown to have erred in relation to the awards of damages for past gratuitous care services and for paid future domestic assistance. The appeal should be dismissed with costs. ********** 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: 26 October 2012