Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Allard v Jones Lang Lasalle (Vic) Pty Ltd [2014] NSWCA 325 Hearing dates: 14 August 2014 Decision date: 16 September 2014 Before: Emmett JA at [1]; Tobias AJA at [7]; Adamson J at [95] Decision: 1. Appeal allowed in part. 2. Cross-appeal allowed. 3. Set aside the verdict and judgment in favour of the appellant in the sum of $303,974 and substitute a verdict and judgment for the appellant in the sum of $257,220. 4. The appellant to pay the respondent's costs of the appeal and the cross-appeal but to have with respect to the latter a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise qualified. [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: TORTS - award of damages for past and future economic loss - use of buffer - whether primary judge erred in making an award for economic loss by way of buffer TORTS - award of damages for past and future attendant care services - whether award supported by evidence - whether award should have been on the commercial or gratuitous basis TORTS - contributory negligence - whether the primary judge erred in failing to find that the appellant was contributorily negligent - whether the response of the appellant was that of a reasonable person in her position Legislation Cited: Civil Liability Act 2002 (NSW) ss 5H, 5R, 5S, 13, 15 Motor Accidents Compensation Act 1999 (NSW) s 126 Cases Cited: Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; (2012) 61 MVR 443 Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; (2012) 83 NSWLR 302 Allianz Australia Insurance Ltd v Sprod [2012] NSWCA 281; (2012) 81 NSWLR 626 Mason v Demasi [2012] NSWCA 210 Miller v Galderisi [2009] NSWCA 353 Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; (2008) 172 IR 453 Purkess v Crittenden [1965] HCA 34 (1965) 114 CLR 164 Ziliotto v Hakim [2013] NSWCA 359 Category: Principal judgment Parties: Joanne Rita Allard (Appellant / Cross-Respondent) Jones Lang Lasalle (Vic) Pty Ltd (First Respondent / First Cross-Appellant) CGU Insurance Limited (Second Respondent / Second Cross-Appellant) Representation: Counsel: T Boyd (Appellant / Cross-Respondent) P Morris SC (Respondents / Cross-Appellants) Solicitors: Herbert Weller (Appellant / Cross-Respondent) Holman Webb Lawyers (Respondents / Cross-Appellants) File Number(s): 2013/362204 Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-10-10 00:00:00 Before: Puckeridge ADCJ File Number(s): 2009/335656 HEADNOTE [This headnote is not to be read as part of the judgment] The appellant sustained an injury when she slipped and fell on a puddle of water on premises for which the respondent was responsible. The primary judge found in favour of the appellant and awarded damages in the sum of $303,974. The appellant challenged the award of damages for past and future economic loss, which was made by way of a buffer in the sum of $25,000. She also challenged the primary judge's award of damages for past and future attendant care services. The respondent filed a cross-appeal, which challenged the primary judge's finding that the appellant had not been contributorily negligent given that she had noticed two warning signs in the area that indicated cleaning was in progress. The Court held: 1. The primary judge did not err in his findings on economic loss, or in the award of a buffer in the sum of $25,000. An award for economic loss by way of buffer was inevitable given that the appellant had no recent history of paid employment and her employment prospects but for the accident were fraught with uncertainty. Provided an award by way of buffer is of a sum within the permissible range appropriate to the case, no basis exists for appellate intervention: [31]-[50] Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; (2008) 172 IR 453; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; (2012) 83 NSWLR 302; Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; (2012) 61 MVR 443; Allianz Australia Insurance Ltd v Sprod [2012] NSWCA 281; (2012) 81 NSWLR 626; Mason v Demasi [2012] NSWCA 210; Ziliotto v Hakim [2013] NSWCA 359; referred to. 2. The primary judge, having awarded the appellant damages for gratuitous attendant care at six hours per week for the period immediately following the accident, erred in reducing that allowance to four hours per week in respect of a later period on the basis that the appellant had been attending to the home schooling of her children. The appellant had been attending to the home schooling of her children throughout each of the relevant periods and the reduction was not supported by the evidence: [59]-[61] 3. The primary judge did not err in awarding damages for future attendant care on the gratuitous basis, rather than the commercial basis. The evidence went no further than establishing that there was a remote, though not entirely fanciful, chance of the need for commercial domestic assistance in the future. The appellant did not discharge the onus of establishing when the need for commercial services would arise: [62]-[74] Miller v Galderisi [2009] NSWCA 353; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; (2012) 83 NSWLR 302; applied. 4. The primary judge erred in failing to find that the appellant was contributorily negligent. The relevant question was not whether the appellant's response to the signs was reasonable, but whether that response was that of a reasonable person in her position: [89]-[90] Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492; applied. Judgment 1EMMETT JA: This appeal is concerned with the assessment of damages suffered by the appellant when she slipped on a clear liquid on the floor of the Richmond Marketplace shopping centre. The puddle had been left on the floor by a machine used for the cleaning of the concourse on which the appellant was walking. 2The appellant sued the respondent in the District Court on the basis that it was the occupier of the shopping centre and that it was negligent in failing to warn her adequately of the risk of slipping. In its defence, the respondent pleaded contributory negligence on the part of the appellant. 3Subsequent to her fall, the appellant was involved in a motor vehicle accident in which she sustained further injuries that generally consisted of aggravations of her earlier injuries. She also commenced proceedings in the District Court against the driver of the other vehicle involved in the motor vehicle accident. Both proceedings were heard by a judge of the District Court. On 10 September 2013, the primary judge gave judgment on the question of liability in relation to the appellant's claim against the respondent, finding that the respondent had breached its duty of care. His Honour rejected the defence of contributory negligence. 4On 9 October 2013, the primary judge entered a verdict and judgment in favour of the appellant against the respondent in the sum of $303,974. On the following day, his Honour entered a verdict and judgment in favour of the appellant with respect to her motor vehicle claim. 5The appellant now appeals to this Court in respect of certain aspects of the assessment of her damages by the primary judge. In addition, the respondent has cross-appealed, alleging that his Honour erred in rejecting the defence of contributory negligence. 6I have had the advantage of reading in draft form the proposed reasons of Tobias AJA for concluding that the appeal should be allowed in part and that the cross-appeal should be allowed with an apportionment of responsibility of 20 per cent to the appellant and 80 per cent to the respondent. I agree with the orders proposed by Tobias AJA for the reasons proposed by his Honour. 7TOBIAS AJA: On the evening of 14 December 2008 the appellant entered a shopping centre known as the Richmond Marketplace with a view to attending the Woolworths store within that facility. The pedestrian concourse leading from the entrance to the centre to the entrance to Woolworths comprised a polished marble floor over which the appellant walked to a point where she slipped on a puddle of clear liquid (probably water) which had been left on the floor by a machine used for the cleaning of the concourse for which the respondent, as manager of the centre, was relevantly responsible. She fell heavily to the ground and sustained some severe injuries. 8Subsequently, on 3 November 2009 the appellant was involved in a motor vehicle accident in which she sustained further injuries generally comprising the aggravation of the injuries she had sustained on 14 December 2008. 9On 8 December 2009 the appellant instituted proceedings in the District Court against the respondent, having commenced proceedings against certain other defendants on 18 June 2009, claiming damages in respect of the injuries sustained by her on 14 December 2008. On 9 October 2012 she also instituted proceedings against the driver of the vehicle which caused the motor accident and in respect of which liability was admitted by the relevant CTP insurer. Both proceedings were heard together by his Honour Acting Judge Puckeridge between 22 July 2013 and 31 July 2013. On 10 September 2013 his Honour delivered judgment on the issue of liability in relation to the appellant's claim against the respondent, finding that it had breached its duty of care. In a separate judgment on 9 October 2013 his Honour dealt with the issue of damages, entering a verdict and judgment in favour of the appellant in the sum of $303,974. On the following day, 10 October 2013, he entered a verdict and judgment in favour of the appellant in the sum of $11,070 with respect to her motor accident claim. 10The appellant now challenges the primary judge's assessment of her past and future economic loss as well as aspects of his findings with respect to past and future gratuitous care. There were seven grounds of appeal of which Grounds 1 to 4 related to the issue of economic loss and Grounds 5 to 7 related to the issue of gratuitous care. 11The respondent's defence pleaded contributory negligence, a claim which the primary judge rejected. Accordingly, the respondent has cross-appealed alleging that his Honour erred in rejecting that defence. It asserts that the appellant was guilty of contributory negligence and should bear 50 per cent responsibility for her injuries. The relevant factual background 12The appellant was born on 20 February 1961. At the time of the slip and fall accident (the accident) she was just short of 48 years of age and at the time of the hearing was 52 years of age. She has five children, all of whom had serious medical issues. The eldest child, Rebekka, was at the time of the hearing 33 years of age but no longer lived with her mother. The next eldest child, Rolande, was 22 years of age at the time of trial and lived at home. Notwithstanding his neurological problems, he was at the time of trial a student at a tertiary institution in Penrith. The next child, Rachael, was 21 years of age at the time of trial, and lived at home but was unemployed. After the accident she provided the major part of the gratuitous assistance that the appellant needed as a consequence of the injuries sustained by her in the accident, although some assistance in the form of housework was also provided by Rolande and the youngest child, Rainer. The next child, Reubens, was 19 years of age at the time of trial. He also lived with the appellant and required a deal of care although he was at times of limited assistance to her. He suffered from bouts of violence and, according to the appellant, was very hard to live with and required ongoing treatment. The fifth and youngest child, Rainer, was 16 years of age and living at home at the time of trial. 13In 2002, due to medical problems from which the four youngest children suffered and the fact that they were bullied at school, the appellant took them out of the public school system and schooled them at home. At the time of trial, only Rainer was still undergoing home schooling. The other three children who lived at home were on one form of welfare or another. The appellant herself received a carer's pension. 14Although the appellant had been separated from her husband, Lee Rolande Hallett, since 1999, they were on friendly terms and after the accident Mr Hallett provided gratuitous assistance to her from time to time. 15The appellant married Mr Hallett in June 1990. Although since leaving school in Year 11 she had had a number of modestly paid jobs, given her children's needs she had not been involved in any paid employment of any kind since 1987. 16However, she had undertaken some courses at TAFE, obtaining a Certificate IV in Information Technology (Network Management) in December 2006 and a Certificate IV in Training and Assessment in November 2007. She had also commenced a TAFE course in Project Management which she abandoned after she sustained her injuries in the accident. She stated that the purpose of obtaining the Certificate IV in Training and Assessment was to qualify her to teach or to train persons in information technology subjects at TAFE or at a training organisation. She further stated that her purpose in undertaking further training in Project Management was to give her more of an all-round capacity for work so she would be more attractive to a potential employer. 17Although the appellant's interest was in information and communications technology, her involvement before the accident related to the hardware rather than the software side of computers. Thus from time to time she had serviced computers for family and friends and people who were unable to afford a retail service provider, but this work was unpaid. The appellant further stated that she did not intend to seek employment until September 2012 when her youngest child turned 16 and even then she only ever intended to work 20 hours per week. Although it would appear that at first instance, and notwithstanding a lack of evidence on her part to support it, the appellant submitted that she intended to return to full-time employment, on the appeal it was accepted that she never intended to undertake employment for more than 20 hours per week in the information technology field. 18It was common ground at trial that the extent of her injuries sustained in the accident were such that she was incapable of undertaking employment in her chosen field. However in a vocational assessment report dated 26 February 2013 obtained from Mr OJ Burchett, a vocational psychologist, her intellectual ability was assessed as above average and she was considered to be well qualified for employment of an administrative or clerical nature. Some of the specific options that, in Mr Burchett's opinion, the appellant could consider given her injuries, included bookkeeper, logistics or production clerk, purchasing officer, accounts clerk, payroll clerk, desktop publishing operator or word processing operator. However Mr Burchett also noted that if the appellant saw unreliability as a potential difficulty for her in obtaining regular employment she could explore options for doing clerical work from her home provided there was an employer who was prepared to offer her that option. 19After considering the medical evidence, the primary judge found that the appellant suffered in the accident an injury to her neck, lower back and right knee by way of aggravation of a pre-existing arthritic and degenerative condition in her neck and back as well as an underlying condition in her knee. So far as the motor vehicle accident on 3 November 2009 was concerned, his Honour found that that resulted in aggravation of her neck and back condition but only for a period of between six to nine months so that her continuing condition and the pain which she was experiencing in her neck, back and shoulder at the time of trial were due to the fall on 14 December 2008. 20Nevertheless, during that six to nine months she had increased difficulty in carrying out her domestic chores which resulted in her children and husband being required to provide further assistance over and above that which she required both before the motor vehicle accident and after her symptoms from her injuries caused by that accident had subsided. The issue relating to past and future economic loss (Grounds of Appeal 1-4) The primary judge's findings 21The primary judge noted that the appellant made a claim for past loss of earning capacity from 24 September 2012 (when her youngest child reached 16 years of age) to the date of hearing. He noted her evidence that but for the accident she wished to perform 20 hours per week casual employment but was not sure as to whether or not she would now be able to perform work for that period given her injuries. 22The primary judge then referred to the appellant's attempt to gain experience in the workplace and in particular in the computer field. He noted that her expertise was confined more to hardware than to software and that she would have difficulties in relation to that work as it required bending, kneeling and squatting as well as lifting heavy items. Further, his Honour considered that age was another factor which was against her. 23His Honour then found that the reality of the situation was that the appellant would be unlikely to obtain paid employment "as at this time". He considered that that may be due to the pain in her neck, back, shoulder and knee which she was experiencing and would continue to experience as a result of the fall. Significantly, he considered that he could not disregard the underlying arthritic and degenerative condition of her neck, back and knee. He stated: "Had she not sustained that fall, it is likely that some incident or an event could have precipitated the pain and symptoms of a similar kind to which she had suffered since the fall." That finding was not the subject of challenge. 24With respect to her underlying arthritic and degenerative condition, his Honour noted the evidence of Dr Harvey that it was of a progressive nature. Had she not had the fall, according to his Honour, she was certainly vulnerable because of that underlying condition to suffering in the future from pain of a similar nature "on an event occurring to her such as a fall or in the ordinary course of life in carrying out her domestic duties." 25Read in context, this last finding of his Honour is more likely a reference to an incident or event that could occur in the ordinary course of life rather than a finding that the symptoms would present simply due to the passage of time. 26It is in the following passage of his Honour's judgment that, in my view, he makes his ultimate finding as to the appellant's prospects of employment but for the accident. He said: "I would consider that the fall did prevent her from continuing to acquire some further expertise and that it is possible that that further expertise may have resulted in some increased earning capacity." There was no challenge to this finding. 27His Honour then referred to the report of Mr Burchett, noting that he had considered that a number of factors, unrelated to the injuries sustained by her in the accident, which could continue to restrict the appellant's competitiveness in the labour market. He observed that Mr Burchett had also noted that she had been out of stable employment for some 26 years and during most of that time had been out of the workforce, either in a casual or permanent capacity. Accordingly, she was likely to find considerable competition, at her present age of 52 years, from workers who were younger and also had experience that she did not have. Again these findings were not the subject of challenge. 28The primary judge then concluded as follows: "I consider that a buffer of $25,000 could be given for the loss of the opportunity as a result of the fall in December 1998 [sic] to continue to gain further qualifications for work in the computer field." The appellant's submissions 29The appellant submitted that his Honour committed three relevant errors in assessing damages for economic loss. The first was that he had limited the appellant's loss of earning capacity to past economic loss only. Secondly, he had ignored s 13 of the Civil Liability Act 2002 (NSW) as he had not determined the appellant's most likely future circumstances but for the injury. Thirdly, in having regard to the appellant's underlying degenerative condition, he had failed to apply the principle espoused by the High Court in Purkess v Crittenden [1965] HCA 34 (1965) 114 CLR 164 at 168 to the effect that in a case such as the present where there was a prima facie incapacity resulting from a defendant's negligence, the onus of adducing evidence that that incapacity was wholly or partly the result of a pre-existing condition or that that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rested upon the defendant; and in the event that this was established, the appropriate course was to apply a larger discount for vicissitudes. The appellant proposed a discount of 25 per cent, rather than that of 20 per cent applied by the primary judge. 30The appellant submitted that her primary case was that she was entitled to past economic loss for 52 weeks based on Average Weekly Earnings for 20 hours per week plus superannuation and for future economic loss for 40 hours per week for 14.5 years plus superannuation with a deduction for vicissitudes of 25 per cent. If that approach was rejected it was accepted, as had been her case at trial, that it was appropriate for his Honour to provide a buffer with respect to her loss of earning capacity. It is fair to say that although the appellant did not abandon her preferred case, it was understandably not pressed with any vigour. Accordingly, the issue on appeal was whether the buffer his Honour provided was manifestly too low or otherwise affected by relevant error. Did the primary judge err in allowing a buffer of $25,000 for past and future economic loss? 31The relevant principles with respect to the awarding of a buffer for future economic loss were summarised by McColl JA, with whom Mason P and Beazley JA agreed, in Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; (2008) 172 IR 453 at [84] where her Honour relevantly said (omitting citations): "As to the future economic loss, it is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case, the Court still undertakes a comparison between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer." 32More recently, in Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; (2012) 83 NSWLR 302 at [7]-[9] McColl JA noted that first, the task of assessing damages for lost earning capacity was necessarily impressionistic; secondly, although statutory principles (such as s 126 of the Motor Accidents Compensation Act 1999 (NSW) and s 13 of the Civil Liability Act, both of which are in the same terms) that apply to the assessment of damages as to future hypothetical scenarios are intended to "promote intellectual rigour", there is a point at which even with the application of the requisite degree of intellectual rigour, an element of impression must be involved; and thirdly, buffers should not be awarded indiscriminately particularly where the evidence enables a more certain determination of the difference between the economic benefits the plaintiff derived from exercising earning capacity before and after injury. I note that this last mentioned proposition has no application on the facts of the present case. 33In Kerr Basten JA at [30] observed that: "there is a point ... beyond which the selection of a figure for economic loss is so fraught with uncertainty that the preferred course is to award a lump sum as a 'buffer', without engaging in an artificial exercise of commencing with a precise figure, and reducing it by a precise percentage." 34Macfarlan JA agreed with Basten JA but added the observation at [69] that the buffer adopted by the assessor in that case would have likely been arrived at by an intuitive assessment of the claimant's possible future loss. I would add that provided the figure adopted is within the permissible range appropriate to the case, no basis exists for appellate intervention. 35In Mason v Demasi [2012] NSWCA 210 at [15] Meagher JA, with the agreement of Beazley and McColl JJA, noted that the assessment of future economic loss by awarding a buffer is not precluded by s 13 of the Civil Liability Act, citing Kerr. 36Basten JA, with the agreement of McColl and Macfarlan JJA, returned to the issue in Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; (2012) 61 MVR 443 at [33] and [38] where he observed: "[33] The calculation of economic loss, whether in the past or for the future, involves a comparison between the actual circumstances of the claimant, as a result of the accident, and the circumstances which would probably have continued or come to pass but for the accident. On the assumption that the accident has resulted in a loss of earning capacity, the court must also consider whether such a loss might have occurred independently of the accident. ... [38] Under the general law, it has long been accepted that, at least in some cases, the assessment will involve such a degree of speculation as to render a calculation by the conventional techniques inappropriate. In those cases, a lump sum is awarded by way of 'buffer', the court being satisfied on the probabilities that a loss will be suffered or, indeed, has been suffered." 37At [39] Basten JA noted that the award of a lump sum buffer will "usually incorporate the element of vicissitudes into the global assessment" and at [46] that although such a lump sum could be characterised as arbitrary or capricious, it could also be characterised, in the circumstances of the particular case, as impressionistic or evaluative. As Macfarlan JA remarked at [51] and [52], where the calculation of future economic loss involves, in the circumstances, speculation and extreme difficulty, the award of a buffer is appropriate. See also, Allianz Australia Insurance Ltd v Sprod [2012] NSWCA 281; (2012) 81 NSWLR 626 at [30]; Ziliotto v Hakim [2013] NSWCA 359 at [56]. 38On the facts of the present case there can be little doubt that an award of economic loss in the form of a buffer was not only appropriate but also inevitable. The appellant had no history of paid employment for many years; her future as an employee was fraught with uncertainty given the medical difficulties of her children who, in all probability, would need her assistance during their adulthood. Notwithstanding her above average intelligence, her competitiveness in the labour market was restricted as detailed by Mr Burchett. She was also vulnerable due to her underlying degenerative condition to an incident or event in the future producing the same or similar disabilities that she sustained in the accident. 39Although the appellant had stated that she wished to return to work but for the accident when her youngest child turned 16 in September 2012, she recognised that it would take about a year for her to finish the course which she had been forced to abandon when she sustained the accident. However, her evidence was that she expected to complete the course by that time. Accordingly, there was the possibility that she may have gained some remunerated employment between September 2012 and July 2013, being the time of trial, a period of only 9 or 10 months. 40The primary judge made no separate allowance for economic loss for the period referred to. Rather, he seems to have awarded the buffer of $25,000 as covering the period commencing September 2012. Given the shortness of that period and the paucity of the evidence as to whether the appellant would have gained some employment during that period, I detect no relevant error in the primary judge's approach to this aspect of her economic loss claim. 41In view of the matters to which I have referred at [38] above, of which the primary judge was cognisant, and the matters referred to at [39]-[40], the issue thus became one of determining an appropriate buffer with respect to the future. It was submitted that notwithstanding that his Honour had stated that the fall that she sustained in the accident had prevented the appellant from continuing to acquire some further expertise and that it was possible that that further expertise may have resulted in some increased earning capacity, when he came to consider an appropriate amount he confined the buffer he determined ($25,000) to the loss of the opportunity, as a result of her fall, to continue to gain further qualifications for work in the computer field. He had therefore failed to take into account his own finding that it was possible that that further expertise may have resulted in some increased earning capacity. 42In my view, the primary judge's findings to which I have referred at [22]-[27] above must be looked at as a whole. It is more than apparent that his Honour expressed doubt, by the use of the word "may", as to whether any further expertise of which she had been denied by the accident would necessarily have resulted in some increased earning capacity. This was because of his reliance upon the views of Mr Burchett to which I have referred at [27] above. The appellant on her own account had been out of the workforce for some 26 years either in a casual or permanent capacity; she was at the time of trial 52 years of age and would, in her chosen field, be likely to find considerable competition from workers who were younger and had experience that she did not have. Each of those considerations would have applied regardless of the accident. 43Coupled with the foregoing was his Honour's finding, not challenged, that when determining an appropriate buffer the Court could not disregard her underlying arthritic and degenerative condition and the possibility that had she not sustained her injuries in the accident, it was likely that some future incident or event could precipitate pain and symptoms of a kind similar to those she had suffered since the fall. In this respect, because of her underlying condition, she was vulnerable to future pain caused by such an event. 44As noted at [29], the appellant submitted first, that the onus lay upon the respondent to establish if and when that vulnerability might manifest itself and, secondly, that in any event it was more appropriate for such a possibility to be reflected in a higher than normal allowance for vicissitudes. 45Those submissions may have had force if otherwise the appellant's loss of earning capacity was to be compensated in the usual manner as contended for in her primary case. But when the Court is considering compensating lost earning capacity in the form of a buffer because of the future uncertainties in respect of which it is not possible to make concrete findings, in light of the principles relating to buffers referred to above and, in particular, at [36] and [37], these factors will be reflected in the lump sum adopted. 46As to the appellant's complaint that the primary judge did not take into account the requirements of s 13 of the Civil Liability Act in that he failed to determine her most likely future circumstances but for the injury, in my view his Honour, although not referring specifically to s 13, did make findings relating to her most likely future circumstances particularly in the passages of his judgment to which I have referred at [26] and [27] above. 47Furthermore, her most likely future circumstances but for the injury were encapsulated in his Honour's finding that it was possible that if she acquired further expertise, that may have resulted in some increased earning capacity. It is apparent that his Honour's use of the word "may" rather than "would" reflects his acceptance of Mr Burchett's opinion that there were a number of factors unrelated to her injury which would restrict her competitiveness in the labour market. 48When one combines these factors with his Honour's unchallenged finding that due to her underlying arthritic and degenerative condition, she was vulnerable to some future incident or event in the ordinary course of life or in carrying out her domestic duties which would cause her pain of a similar nature to that which she currently suffered, it is apparent that his Honour paid due regard to the requirements of s 13. 49The determination of a buffer in a case such as the present involves an evaluation of the appellant's condition and an assessment of whether a loss will be suffered on the probabilities. In my view it cannot be said that the buffer of $25,000 so determined by his Honour was outside the permissible range of amounts which different judicial minds may have determined as being an appropriate lump sum. 50In the foregoing circumstances, in my view the appellant's challenge to the primary judge's determination of $25,000 as an appropriate buffer with respect to her loss of earning capacity cannot be sustained. I would therefore reject Appeal Grounds 1-4. The issue relating to gratuitous care (Grounds of Appeal 5-7) The primary judge's findings 51The primary judge awarded the appellant $15,000 for past gratuitous care. That was made up of four periods. The first was from the date of the accident (14 December 2008) to the date of the motor vehicle accident (3 November 2009). His Honour found that the appellant had a need for gratuitous care services solely because of the injury which she had sustained in the accident for six hours per week which, being gratuitous, had been agreed by the parties as attracting a rate of $25 per hour. The second period related to the effects of the motor vehicle accident from 3 November 2009 to 30 June 2010. With respect to that period, his Honour stated: "That for the period from 3 November 2009 up [until] 30 June 2010, extra care would be required, as referred to, and that would be as a result of the motor vehicle accident, and I would assess that extra time to be 12 hours per week for that particular period of time." 52In the motor vehicle claim, the primary judge allowed the appellant damages in the sum of $10,200 being 12 hours per week at the rate of $25 per hour for the period 3 November 2009 to 30 June 2010. However, he allowed nothing for that period arising out of the accident. When the parties were discussing with his Honour the necessary calculations, he confirmed that he was making no allowance for that period in the proceedings arising from the appellant's fall. It is to be noted, of course, that 12 hours is twice what his Honour otherwise considered was appropriate in respect of the period between the dates of the two accidents. 53The third period was between 1 July 2010 and 24 September 2012 (being the date upon which the appellant's youngest child reached the age of 16 years). Initially, after referring to the "extra" 12 hours for the period 3 November 2009 to 30 June 2010, his Honour stated that: "Thereafter, from, that is, 1 July 2010 through to the present stage, I would assess six hours per week." 54However, after reference was made to s 15 of the Civil Liability Act and it being noted that in order to reach the threshold, the appellant needed to establish a need for six hours of care per week for six months, his Honour stated that he was concerned as to the situation after 1 July 2010 as on the evidence the appellant was continuing to carry out schooling for her children up until September 2012. He then said: "In that period of time, that is from July 2010 up til September 2012, she had assistance in relation to driving from her daughter and also assistance in the shopping from her family and from her husband who, although they were separated, continued to be of support to her and her family. I consider in that period of time, certainly that is up til 24 September 2012, I consider that the assistance that she received from her family and her attention to the schooling duties would have reduced the assistance she needed to four hours per week." 55After further discussion with counsel his Honour continued: "From July 2010 to 24 September 2012 I consider that the family and the assistance by the family is a matter to be taken into account under the Civil Liability Act, was such that it allowed her to attend to the schooling of the youngest child. Thereafter, after 24 September 2012, I consider that the need for her assistance would have reverted back to six hours per week. She was then relieved of that need for home schooling, the children were starting to lead their own lives. She still required assistance and although her husband was continuing to be of assistance, the lack of assistance from other members in the family I consider would mean that she would require at least six hours per week from 24 September 2012." 56It is apparent from the foregoing that in relation to the third period from 1 July 2010 to 24 September 2012 his Honour made no allowance for the provision of gratuitous care services as they failed to reach the threshold of six hours per week. However, with respect to the fourth period, 24 September 2012 to 9 October 2013, being the date of judgment with respect to damages, his Honour found a need for six hours per week which he assessed at $25 per hour. The parties' submissions and their resolution 57The appellant submitted that his Honour should have allowed a further six hours per week at $25 per hour for the second period (3 November 2009 to 30 June 2010) on the basis that he allowed an extra 12 hours per week as arising out of the motor vehicle accident. This would have resulted in a total need for gratuitous care services of 18 hours per week which was never the contention of the appellant at trial where the maximum number of hours per week sought was 13. As I have indicated, it is clear that his Honour did not intend to make any separate allowance for gratuitous care services in respect of the accident over and above the 12 hours per week that he allowed as arising out of the motor vehicle accident. 58Although his Honour's language was ambiguous in so far as he referred to a requirement for "extra care" which "extra time" he assessed to be 12 hours per week, in my view he clearly intended that the 12 hours per week was appropriate given that the pain and limitations that the appellant was suffering at the time of the motor vehicle accident was then subsumed in the increased pain and suffering she sustained as a consequence of the aggravation to her existing symptoms caused by the motor vehicle accident. Accordingly, I would reject Appeal Ground 5 insofar as it challenges the award of damages for the period 3 November 2009 to 30 June 2010. 59Appeal Ground 6 relates to the reduction by the primary judge of gratuitous attendant care services from six hours to four hours with respect to the period 1 July 2010 to 24 September 2012. He did so upon the basis, apparently, that the assistance the appellant was receiving from her family enabled her to attend to the schooling of her youngest child. Yet she was attending to that schooling during the period between the two accidents in respect of which he allowed six hours of gratuitous care services per week. Although during the course of argument a number of speculative reasons were advanced as to the basis upon which his Honour reduced the assessment of the assistance needed during that period due to her schooling of the youngest child, in my view no satisfactory reason has been advanced to justify the reduction in question. 60I thus agree that the appellant's submission that the reduction made by his Honour was "illogical, circular and against the weight of his earlier findings in relation to the appellant's care needs created by the accident". Although the respondent submitted that the finding was neither illogical nor circular and was a finding of fact based upon the evidence, in my view that is not so. Certainly the evidence was that she was attending to the schooling of her youngest child during this period but she was doing so both before and after 14 December 2008 and there was no suggestion in the evidence, and certainly no finding, that she was spending more time in her schooling duties of the youngest child during the period 1 July 2010 to 24 September 2012 than at any other time. 61Accordingly, for the foregoing reasons in my view the appellant is entitled to gratuitous attendant care services for six hours per week at $25 per hour in respect of the period 1 July 2010 to 24 September 2012. That amount is $17,550. 62Appeal Ground 7 relates to the rate per hour applied by his Honour in respect of a continuing award for gratuitous care services from the date of hearing for a period of 36.5 years based on the life expectancy tables and claims that his Honour failed to consider the appellant's claim for future commercial care. The appellant's claim at trial for future attendant care services was for ten hours per week at the rate of $36.30 per hour which was the agreed rate for the provision of commercial services. His Honour, after identifying the rate of $36.30 per hour, appeared to correct himself by stating that it was agreed that the hourly rate would be $25 per hour. It was common ground that there was no such agreement except to the extent that it was agreed that if the services to be provided in the future were gratuitous, then the appropriate rate was $25 per hour. 63However the appellant submitted that the rate that should be applied to damages awarded for future care should be $36.30 per hour upon the basis that his Honour had found that after 24 September 2012 the children were starting to lead their own lives with the consequence that sooner or later they would all leave home which would necessitate the appellant having to obtain the services of a commercial provider. 64Although his Honour found that the children were starting to lead their own lives after September 2012, he made no specific findings as to when, if at all, those that were providing gratuitous assistance would leave home and lead independent lives to the extent that they would be either unable or unwilling to provide gratuitous care services to their mother. 65Although the evidence seemed to establish that if gratuitous care services were not available to the appellant she would have a need for commercial care, the issue was whether and when the gratuitous services provided by the children would end. 66The primary judge had noted the fact that the appellant did have the assistance of her children and, in particular, that of Rachael. Rachael's evidence at trial was that she was 21 years of age and engaged to be married which she hoped would occur in 2014. The following exchange then occurred: "Q. So will you, hopefully, one day move out of the present premises? A. Yes, hopefully next year. Q. So you wouldn't be around then to do the sort of work that you're doing now? A. No." 67It is apparent that Rachael's evidence was stated in terms of a hope rather than a certainty. Furthermore, she had significant health problems (craniosynostosis) and had recently had a car accident which caused problems to her back, having been in the same accident as had the appellant in November 2009. 68Reubens, who was 19 at the time of trial, when asked whether it was his intention to stay living with his mother and other members of the family or to move out, responded that at the moment he intended to continue to live with the family and then to move out when he had enough money. He accepted that it was his intention to move out "in due course". Reubens also had significant medical issues. 69Rolande, who was 22 years of age at the time of trial, also gave evidence. He was asked whether it was his intention to remain with his mother or to move to his own home to which he responded "eventually move out into my own home". 70Finally, Rainer, who at the time of trial was 16 years of age, was asked what his plans were for the future and whether he would stay with his mother or move out eventually. He responded that he knew that his mother was not going to completely recover but he would move out "hopefully when I'm older, some time". 71In Miller v Galderisi [2009] NSWCA 353 the Court (Allsop P, Basten and Macfarlan JJA) stated at [18] that there was no reason in principle why, if the evidence justifies it, damages may not be awarded in respect of a need for commercial domestic assistance likely to arise in the future after the availability of gratuitous assistance ceases. However, the Court noted at [24] that it was not appropriate to simply pluck a figure out of the air because there was a remote, though not entirely fanciful, chance of the need for commercial domestic assistance in the future. 72In Kerr, Basten JA noted at [46] that in Miller the claim for commercial assistance was allowed at trial in circumstances where the claimant was obtaining assistance from her spouse and members of her family. His Honour continued: "It is possible to envisage circumstances in which family members (through age or departure from the family home) may no longer be able or available to provide such assistance. That would provide a sound basis for an award of compensation for commercial assistance, if those circumstances were properly established, but they were not established in Miller." 73In the present case, in my view the evidence goes no further than establishing that there was a remote, though not entirely fanciful, chance of the need for commercial domestic assistance in the future. The remoteness of that chance is based upon the impossibility of determining with any degree of confidence whether or when the appellant's children, including Rachael, would no longer be able or available to provide gratuitous assistance. To pick a future point in time when such assistance might cease and commercial assistance may be required would be nothing short of speculative. As the onus lies on the appellant to properly establish when the need for commercial services would arise, in my view that onus has not been discharged. 74Accordingly, in my opinion the evidence is inadequate to provide a sound basis for an award of compensation for future commercial assistance. Appeal Ground 7 should therefore be rejected. The respondent's cross-appeal on the issue of contributory negligence 75The respondent challenged the primary judge's findings on contributory negligence by way of cross-appeal filed 24 January 2014. In the proceedings below, the respondent pleaded s 5R of the Civil Liability Act and further alleged that the loss and damage suffered by the appellant should be reduced by 100 per cent in accordance with s 5S of that Act. The particulars of contributory negligence were as follows: "(i) Failing to take due care in the circumstances. (ii) Failing to keep any or any proper look out. (iii) Failing to take any, or any adequate, care for her own safety. (iv) Being inattentive. (v) Failing to watch where she was walking. (vi) Failing to adhere to warning signs alerting her to the possibility of the surface on which she allegedly fell being slippery." The primary judge's decision on contributory negligence 76In his judgment on liability of 10 September 2013 the primary judge referred to the evidence of the appellant that as she was walking towards the Woolworths store she passed a number of shops which were not then open but observed in front of one shop referred to as Wendy's, a yellow sign. In her evidence she said the sign was not very large and that she did not remember what it said except that she knew that it was a warning sign. As she kept walking straight ahead, she noticed that there was another sign near a chair outside a butcher's shop which adjoined the shop known as Wendy's. She said that that sign was exactly the same as the sign outside Wendy's. She said that she kept away from that sign and continued walking in the direction of Woolworths. As she started to veer to the left towards the entrance to Woolworths, she slipped and fell to the ground. Whilst on the ground she observed clear liquid. Her allegation on the issue of liability was that a cleaning machine was being used which left a residue of liquid in its operation and there was a failure to warn of the presence of the liquid through the provision of warning signs or an orange "wet floor" sandwich board-style sign placed at regular intervals around the area being cleaned. There were other allegations of negligence on the part of the defendants not presently relevant. 77The defendants raised a defence under s 5H of the Civil Liability Act alleging that they did not owe a duty of care to the appellant to warn of an obvious risk. In the context of that defence it was submitted on their behalf that the appellant was aware of the need to exercise caution even if not aware of what in fact was actually stated on the signs which she observed. 78In response to this submission the primary judge stated: "The [appellant] would, in the ordinary experience of life, be aware that water on a marble floor may bring about a risk of slipping. The particular risk, however, was a risk of puddles of water being on the marble floor from the operation of the particular cleaning machine. The [appellant] was not aware of that risk and a risk of harm from a clear liquid on the marble floor would not, I consider, be obvious to her whilst she was proceeding towards Woolworths. The CCTV footage clearly shows that the [appellant] did look towards the sign or towards Wendy's Café as she passed the sign and commenced to turn to the left to go into the entrance of Woolworths as shown on exhibit C; that is, the entrance as shown on exhibit C. There was no sign immediately in front of the puddle of water on which she slipped indicating the danger from that puddle. The risk, as I have stated, I do not consider would have been obvious to her." 79Having found that the puddle of water was not an obvious risk, his Honour then turned to the issue of contributory negligence. His consideration of that issue was short to the point that it seemed somewhat as an afterthought. The totality of his reasoning was as follows: "Contributory negligence is also alleged. The onus of proof as to contributory negligence is on the defendant. Having observed the CCTV footage, I am not satisfied the defendant has proved contributory negligence. There is nothing in that footage which showed that the [appellant] was not taking care for herself in walking towards the Woolworths entrance." The appellant's evidence 80In her evidence, the appellant agreed that the signs that she saw in front of Wendy's and the butcher were warning signs. Further, when asked whether she knew it was a warning sign saying that cleaning was in progress she responded that she assumed it was "between the signs". When it was again put to her that she knew that the sign in front of Wendy's was informing her that cleaning was in progress, she agreed but added "but it didn't tell me where". In response to a further question she answered: "I saw a sign and I couldn't read it because it was too small. I knew it was yellow and because I saw two of those signs, I assumed that the cleaner was cleaning between them, and I made a mental note not to walk between the signs... because that's what usually people do at shopping sign." 81She further volunteered that she was "actually walking quite fast" and she didn't suggest in her evidence that having seen the signs she slowed down in any way. When it was put to her that she knew the signs were informing her that the floor was wet she responded: "I didn't know that it was telling me the floor was wet, not in that particular respect ... I just knew that there was a warning and I assumed the warning was not to walk between the signs... because somebody would have been maintaining the floor." When asked what she expected the warning was about she responded "[w]ell it was being cleaned, it doesn't necessarily have to be wet". 82Further on in her cross-examination she agreed that the signs had both symbols and words on them. The following question and answer then ensued: "Q. The symbol was indicating that the floor was slippery wasn't it? A. Between the signs." 83When it was suggested to the appellant that as she was walking through the centre she really did not pay much attention to what was on the signs, she responded that she noted the yellow signs and that it would be dangerous to walk between them as she assumed the cleaner was cleaning between them, although she did not suggest that she actually saw the cleaner so doing. In this respect she said that she did not actually know if she saw the cleaner although she heard a noise and that when she looked up after she fell the cleaner was outside the front of Woolworths. Finally, she was asked whether she had seen the cleaner cleaning in the area with a machine on any previous occasion she had visited the shopping centre when all shops were closed other than Woolworths to which she responded "[m]aybe, but usually the cleaner was after 11". When she was asked if she had seen the cleaner when she had been there at about 8.30 pm on previous occasions, she responded that she did not know but that she may have. 84The appellant's husband Mr Lee Hallett gave evidence. He agreed that on previous occasions he had seen signs similar to those that he saw on the present occasion. He agreed that he had seen such signs around the shopping centre but added "[b]ut I guess when cleaners clean all the time, they put them in different places ...". 85Evidence was given by Mr Khalil Hayek who, at the relevant time, was associated with the company who had the cleaning contract for the shopping centre. Although he was not present at the centre at the time of the appellant's accident, he had seen the CCTV footage of the accident. When asked about whether the signage was standard equipment for cleaning staff he said there were two types, one called a cone and the other referred to as a flip sign which was a standard A-shape sign. His evidence was that on the occasion in question, flip signs were in use which had a height of approximately 80 cm. The markings on the sign were "Caution - cleaning in progress" and there was a pictogram in the shape of a red triangle depicting a person slipping. He identified the signs in question from the CCTV footage as being red signs and not yellow as the appellant had claimed. However I do not believe anything turns on that. The parties' submissions on the issue of contributory negligence 86The respondent submitted that the primary judge had erred in three respects. The first was a failure to give adequate reasons. The second stemmed from his failure to apply s 5R of the Civil Liability Act which was 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." 87The third error stemmed from his Honour's failure to undertake the necessary factual analysis called for by s 5R. His failure to, for instance, ask what a reasonable person in the position of the appellant would have done in response to the warning signs and what in contrast the appellant did in response, led his Honour into error. Although the respondent submitted below that the reduction should be 100 per cent pursuant to s 5S of the Civil Liability Act, on the cross-appeal the respondent contended that the apportionment between the parties should be equal and the reduction should be 50 per cent. 88The appellant submitted that the precaution taken by her in not walking between the signs was a reasonable response to the warning that she appreciated the signs conveyed. The appellant was guilty of contributory negligence 89The difficulty with the primary judge's findings is that they purport to apply a subjective rather than objective test to the present issue. The question was not whether the appellant's response to the signs whereby she assumed that it was sufficient if she avoided walking between them was reasonable, but whether that was an appropriate response of a reasonable person in her position. Due to her particular response to seeing the signs, she continued to walk at a fast pace, albeit that that was her normal pace, and further, failed to look at the floor ahead of her. As she slipped on a clear puddle of water one can reasonably infer that had she been keeping a lookout with her eyes on the floor then she would have seen the puddle in time to have avoided it. But she did not consider that either of those responses was necessary because of the particular view she held as to where the danger lay, namely between the two signs. Yet she was aware that the signs indicated that cleaning of the floor was in progress. Commonsense would then indicate that the floor may well be wet in areas other than that immediately between the two signs. 90In my view, the appellant, being aware of the risk of harm constituted by the cleaning of the floor which was then in progress, failed to take precautions against that risk which a reasonable person in her position would have taken. Accordingly, it follows that the appellant failed to take reasonable care for her own safety. 91The issue which then arises relates to the apportionment of responsibility between the appellant and the respondent. The relevant principles are well known having been stated by the High Court in Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 494. Applying those principles in my view an appropriate apportionment as between the appellant and the respondent of their respective shares in the responsibility for the injuries she sustained is 20 per cent for the appellant and 80 per cent for the respondent. Conclusion 92The appellant has failed on each of her grounds of appeal other than Appeal Ground 6. The effect of her success on that ground is to increase the verdict in her favour of $303,974 by $17,550 resulting in a total of $321,524. That figure now needs to be decreased by 20 per cent due to the finding that the appellant was guilty of contributory negligence resulting in a new figure of $257,219.20 which I would round up to $257,220. 93In the circumstances there is no necessity to vary the primary judge's costs order with respect to the trial. As to the costs of the appeal, in my view the respondent has succeeded overall and should have the whole of its costs of the appeal notwithstanding that the appellant was successful on Appeal Ground 6. 94In light of the foregoing, I would therefore propose the following orders: (1) Appeal allowed in part. (2) Cross-appeal allowed. (3) Set aside the verdict and judgment in favour of the appellant in the sum of $303,974 and substitute a verdict and judgment for the appellant in the sum of $257,220. (4) The appellant to pay the respondent's costs of the appeal and the cross-appeal but to have with respect to the latter a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise qualified. 95ADAMSON J: I agree with Tobias AJA. ********** 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: 16 September 2014