Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Hornsby Shire Council v Viscardi [2015] NSWCA 417 Hearing dates: 23 November 2015 Decision date: 22 December 2015 Before: Beazley P; Gleeson JA; Simpson JA Decision: Appeal dismissed with costs Catchwords: TORTS – negligence – injury suffered after fall in car park – fall caused by depression in bitumen patch in pavement – whether appellant carried out the negligent restoration work on the bitumen patch TORTS – negligence – causation – whether fall caused by negligent restoration work on bitumen patch – Civil Liability Act 2002 (NSW), s 5D APPEAL – whether trial judge erred in assessment of respondent's credit DAMAGES – measure of damages in actions for tort – whether trial judge erred in assessment of severity of injury for purpose of non-economic loss DAMAGES – measure of damages in actions for tort – domestic assistance – whether trial judge erred in assessment of past domestic assistance – evidence required to demonstrate past domestic assistance – future domestic assistance on a commercial basis – extent of evidence required to demonstrate need for commercial assistance where gratuitous assistance currently provided Legislation Cited: Civil Liability Act 2002 (NSW) Evidence Act 1995 (NSW) Cases Cited: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 83 NSWLR 302 Coles Supermarkets Australia Pty Ltd v Haleluka [2012] NSWCA 343 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 Gordon v Truong; Truong v Gordon [2014] NSWCA 97 Holloway v McFeeters [1956] HCA 25; 94 CLR 470 House v The King [1936] HCA 40; 55 CLR 499 Luxton v Vines [1952] HCA 19; 85 CLR 352 Miller v Galderisi [2009] NSWCA 353 Mt Isa Mines Ltd v Pusey [1970] HCA 60; 125 CLR 383 Strong v Woolworths [2012] HCA 5; 246 CLR 182 White v Benjamin [2015] NSWCA 7 Zanner v Zanner [2010] NSWCA 343; 79 NSWLR 702 Category: Principal judgment Parties: Hornsby Shire Council (Appellant) Paul Viscardi (Respondent) Representation: Counsel: R Gambi (Appellant) L King SC; H Halligan (Respondent) Solicitors: Mills Oakley Lawyers (Appellant) W G McNally Jones Staff Lawyers (Respondent) File Number(s): 2015/79789 Decision under appeal Court or tribunal: District Court Citation: Viscardi v Hornsby Shire Council [2015] NSWDC 19 Date of Decision: 4 March 2015 Before: Levy SC DCJ File Number(s): 2013/229406 [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.] HEADNOTE [This headnote is not to be read as part of the judgment] The respondent, Mr Paul Viscardi, suffered an injury to his right shoulder when he fell in a car park on 25 March 2013. The appellant, Hornsby Shire Council (the Council), was the owner and occupier of the car park. The respondent fell over a triangular shaped depressed section of a 1 m2 patched area of bitumen (the bitumen patch) which was the product of "restoration work", being the restoration of an earlier and intentional opening in the pavement. The trial judge, Levy SC DCJ, found that the Council had negligently carried out the restoration work on the bitumen patch. His Honour gave judgment for the respondent and awarded him damages in the sum of $117,436.80. The Council appealed from his Honour's decision on both liability and damages. Two issues were raised on the liability appeal: (1) Whether his Honour erred in finding that the Council had carried out the restoration work on the bitumen patch; and (2) Whether his Honour erred in finding that the accident was caused by the negligence of the Council. As to the trial judge's findings on damages, the Council contended that his Honour had erred in three respects: in accepting the respondent as a witness of credit; in his calculation of the non-economic loss suffered by the respondent and in awarding damages for past and future domestic assistance. Held per Beazley P (Gleeson and Simpson JJA agreeing), dismissing the appeal: (1) His Honour's finding that the circumstances as a whole compelled the inference that the Council carried out the restoration work was not erroneous. The absence of any record of the restoration work having been completed by the Council or by a contractor, taken alongside the other evidence, did not give rise to "conflicting inferences of equal degrees of probability". [16], [17] Luxton v Vines [1952] HCA 19; 85 CLR 352; Holloway v McFeeters [1956] HCA 25; 94 CLR 470 (2) That other causes contributed to the respondent's injury did not preclude a finding of liability against the appellant. No evidence was adduced by the Council as to other causes of the respondent's injury. [19] Civil Liability Act 2002 (NSW), s 5D; Strong v Woolworths [2012] HCA 5; 246 CLR 182; Zanner v Zanner [2010] NSWCA 343; 79 NSWLR 702 (3) No error was demonstrated in his Honour's finding that the respondent was a witness of credit, nor was any basis established upon which this Court would independently come to a different conclusion. Although there were some contradictions as between the respondent's evidence and the medical reports, it was a matter for the trial judge to determine whether he accepted the respondent's explanations and concessions. [45], [47] (4) An assessment of the severity of non-economic loss is a matter for the trial judge. It is an evaluative judgment, akin to the exercise of a discretion. In order for there to be an appellate intervention, House v The King error must be established. The Council has not established any such error. Although the trial judge's assessment was generous, it could not be said to be so far outside an appropriate assessment of the degree of severity of non-economic loss as to be indicative of error. [67] House v The King [1936] HCA 40; 55 CLR 499 (5) Section 15 of the Civil Liability Act does not require "that the time taken to perform the services must be referable to some objective standard of efficiency". The respondent's assessment of past domestic assistance was sufficiently based in the evidence to be sustainable. [71] Coles Supermarket Australia Pty Ltd v Haleluka [2012] NSWCA 343 (6) Damages may be awarded in respect of a need for commercial domestic assistance likely to arise in the future after the availability of gratuitous assistance ceases. It was open to his Honour to draw the inference, based on the respondent's family circumstances, that the gratuitous care he was receiving would cease at some stage in the future. It was not unreasonable to presume that the respondent's adult children will move out of the respondent's home and establish their own homes. [79] Miller v Galderisi [2009] NSWCA 353; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 83 NSWLR 302; Gordon v Truong; Truong v Gordon [2014] NSWCA 97; White v Benjamin [2015] NSWCA 75 Judgment 1. THE COURT: The respondent, Mr Paul Viscardi, suffered an injury to his right shoulder when he fell in an open air car park in West Pennant Hills at about 8:15 pm on 25 March 2013. The appellant, Hornsby Shire Council (the Council), was the owner and occupier of the car park premises. 2. The fall occurred when the respondent lost his footing after stepping into a depression that had formed in the bitumen paving of the car park surface. The precise part of the pavement where the respondent fell was described in the evidence as a triangular shaped section on the corner of a 1 m2 patched area of bitumen (the bitumen patch). The surface aspect of both the triangular section and the bitumen patch were clearly visible in the photographic evidence. It was accepted by the parties that the bitumen patch was the product of "restoration work", being the restoration of an earlier and intentional opening in the pavement, rather than a pothole caused by road vehicles wearing away the pavement surface. 3. The trial judge, Levy SC DCJ, found that the Council had carried out the original restoration work and had done so negligently. His Honour gave judgment for the respondent and awarded him damages in the sum of $117,436.80. 4. The Council appealed from his Honour's decision on both liability and damages. Liability 1. Despite the Council's many grounds of appeal, it argued only the following two issues on the liability aspect of the appeal: (1) Whether his Honour erred in finding that the Council had carried out the restoration work on the bitumen patch; and (2) Whether his Honour erred in finding that the accident was caused by the negligence of the Council: see the Civil Liability Act 2002 (NSW), s 5D. 1. The Council conceded that if it had carried out the work relating to the bitumen patch, it had done so negligently, but did not accept that it was causally liable for the harm suffered by the respondent. Who carried out the restoration work? 1. The Council's principal argument on the appeal on liability was that the evidence did not support the trial judge's finding that the restoration work had been carried out by the Council. On its argument, there were three possibilities as to who carried out the work: the Council; a rogue third party, in particular, an unknown plumber; or a government instrumentality, most likely, the Water Board. 2. As the argument was refined, the third possibility, that the Water Board carried out the restoration, dropped away in the absence of any Council record that the Water Board had applied for a road closure as it was required to do in order to carry out such work. As finally argued, it was the Council's case that the possibilities that the work was undertaken by the Council or a rogue plumber were, at least, equal, such that it was impermissible for his Honour to conclude that the Council had carried out the work: Luxton v Vines [1952] HCA 19; 85 CLR 352; Holloway v McFeeters [1956] HCA 25; 94 CLR 470. Background facts 1. The bitumen patch which was the subject of the restoration work had been cut using a saw, as evidenced by the straight edges of the repair work. The patch was measured by the Council's engineering expert, Mr Clark, to be 1070 mm by 1000 mm. Mr Clark measured the depth of the reinstated asphalt surfacing to be 25-30 mm. The repair work was carried out using hot mix bituminous asphalt (hot mix). 2. The Council's pavement engineer, Mr Suthersan, gave evidence of the Council's system of inspection and maintenance repair and of his inspection of the car park some months before the accident, and of the accident site shortly after the respondent's fall. 3. So far as is relevant to the central question on the appeal on liability, Mr Suthersan's evidence was as follows: * The Council had a system of an annual inspection of its roads and car parks. If a problem was encountered on an inspection, it was recorded. In addition, any complaints from the public were also recorded; * When repair work was required to be undertaken, it was carried out either by a Council maintenance crew or a contractor. The question of who carried out the repair work depended upon the nature and extent of the problem; * The Council's maintenance crew carried out repairs to pot holes. The maintenance crew did not use saw cutting to do so; * The maintenance crew also carried out restoration work if the work involved was undertaken on a surface area no more than approximately 1 m2. Such work could involve saw cutting; * If the Council considered that the repair work involved more than a routine repair, for example, if the work was to be undertaken on a surface area larger than 1 m2, the work would be put on the "works program". A work order would then be issued to an outside contractor engaged by the Council to carry out such work. The contractor then invoiced the Council for the work after inspection and approval for payment by a Council inspector. Such work could involve saw cutting; * Work carried out by a Council maintenance crew involved the use of hot mix; * By contrast, plumbers not on Council staff were required to use cold mix, which is a temporary measure only. A plumber was also required by Council to obtain a permit before carrying out work on Council property. Should a plumber carry out any such work, the Council would later finish off the repair properly with hot mix. Mr Suthersan had never seen a plumber use hot mix. 1. In light of the Council's system for repairs as set out by Mr Suthersan, two factors pointed to the Council not having carried out the restoration work on the bitumen patch. 2. First, the Council had no record of the work having been undertaken. Mr Suthersan gave evidence that he inspected the Council's records but found no record of the repair work having been required or carried out, either by the Council itself or by a contractor. It is perhaps relevant to observe, however, that Mr Suthersan's evidence did not extend to identifying how far back he searched the records. Nor was he asked. Mr Suthersan also gave evidence that he had inspected the car park in November 2012 and had not seen the broken triangular portion of the bitumen patch. 3. Secondly, the bitumen patch was located directly above a sewer line. Mr Suthersan gave evidence that the bitumen patch was "not a normal pothole", namely a hole in the pavement caused from vehicles wearing away the pavement surface. Mr Suthersan instead characterised the bitumen patch as a "restoration fail", being a restoration of an opening of the asphalt surface for a particular reason. The appellant contended that the proximity of the sewer line increased the likelihood that the reason the area had been opened was for a plumber to gain access to the line, and that it was possible, if not likely, that a plumber had therefore completed the restoration work. 4. The appellant also relied upon Mr Suthersan's ultimate assessment that the restoration work on the bitumen patch was not done by the Council. 5. However, in our opinion, the evidence when taken as a whole led to a contrary conclusion to the inference the Council sought to draw from the above factors. First, it was conceded by the Council that the restoration work on the bitumen patch was completed using hot mix and saw cutting, both methods utilised by the Council or its contractors when completing restoration work. Mr Sutheran's evidence was that private plumbers did not do saw cutting or use hot mix. Secondly, a manhole was located approximately one metre away from the bitumen patch, and a second manhole was also located a further few feet away. It was unlikely, if not improbable, that a plumber would undertake work involving a saw cutting device and hot mix, which were not used by plumbers, and cut a hole to access the sewer line, when there were two manholes that facilitated any necessary access to the line. That a plumber would do so without seeking the required permission from the Council or notifying the Council was also unlikely. 6. The appellant's case rested heavily on the absence of any record of the work having been completed by the Council or a contractor. However, the absence of records, taken alongside the other evidence, did not merely give rise to "conflicting inferences of equal degrees of probability". As his Honour found, not only was the repair work of a kind that was carried out by the Council, the use of hot mix made it unlikely that the work was carried out by a rogue plumber. His Honour, at [77], considered the use of hot mix to be a "critical feature that took the matter beyond speculation". No error has been demonstrated in his Honour's conclusion. Indeed, we wholly endorse it. We are also of the view that the proximity of the manholes weighed against the drawing of the inference sought by the appellant. His Honour's finding, at [78], that the circumstances as a whole compelled the inference that the Council carried out the restoration work has not been shown to be erroneous. Causation 1. The appellant submitted that his Honour erred in finding that the respondent's injury was caused by a breach of duty by the appellant pursuant to s 5D of the Civil Liability Act. While the Council accepted that the restoration work had been done negligently, it contended that causation "was not established by the respondent since cracking of the asphalt can occur due to overloading and/or due to the [ageing] of the asphalt". 2. That other causes contributed to the respondent's injury did not preclude a finding of liability against the appellant: Strong v Woolworths [2012] HCA 5; 246 CLR 182; Zanner v Zanner [2010] NSWCA 343; 79 NSWLR 702. Further, no evidence was advanced by the Council as to the impact of ageing on the bitumen patch. 3. In our opinion, there was no substance to this submission. The appeal against liability should be dismissed. Damages 1. The Council's grounds of appeal in respect of damages fell into three broad categories. Grounds 13, 14 and 15 related to the credibility of the respondent. The Council submitted that the respondent was neither a credible nor reliable witness and that his evidence should not be accepted at face value. The purport of these submissions was that his Honour should therefore not have accepted the respondent's complaints of continuing problems in his right shoulder, or his complaints of having suffered a depressive illness as a result of his injuries. Grounds 16 and 17 as argued by the Council also pertained to the respondent's credibility. 2. The second category related to his Honour's determination as to damages for non-economic loss. The Council appealed against his Honour's finding that the respondent's injuries represented 28 per cent of a most extreme case pursuant to the Civil Liability Act, s 16 (ground 19). That section provides that damages may not be awarded for non-economic loss unless the severity of the non-economic loss is at least 15 per cent of a most extreme case. The Council submitted that having regard to the respondent's injury, a proper assessment of its severity was less than 15 per cent of a most extreme case, and that his Honour erred in finding otherwise (ground 18). 3. Finally, the Council appealed against his Honour's award of damages for past and future domestic assistance. The Council submitted that the respondent had no need of domestic assistance in the past, and that if he had, his need did not satisfy the minimum threshold required by the Civil Liability Act, s 15 (ground 20). As to future domestic assistance, the Council contended that his Honour erred in finding that the respondent had any need, and further contended that his Honour erred in finding that such assistance would be required on a paid commercial basis. The Council contested the sum of $19,677 that his Honour awarded for this head of damage. The respondent's credit: grounds 13-15 1. The respondent's credit was integral to his Honour's assessment of damages. At [57], his Honour generally accepted the respondent as a witness of credit. However, the Council identified the following matters relating to the respondent's injury and treatment in respect of which it contended the respondent gave wrong histories to doctors, or gave wrong or inaccurate evidence such that he ought not to have been believed as to the extent of his injury and its ongoing effects: 1. The number of physiotherapy sessions he had attended; 2. Whether he had any previous history of symptoms or injuries to his right shoulder and, more generally, the state of his physical health at March 2013; 3. Whether his history as to the effect of a second fall in December 2013 (the December 2013 fall) was accurate, and in particular whether he had hurt his right shoulder in that fall; 4. Whether he had been prescribed Endone for ongoing pain after the fall the subject of the proceedings; 5. Whether he had given accurate evidence as to whether he had suffered a depressive illness prior to the accident and, in particular, whether he had been prescribed antidepressant medication before that time. 1. The Council's challenge to the trial judge's favourable credit finding was essentially based on the reports of Dr Giblin and Professor Ehrlich, who were retained as medico-legal experts in the matter by the respondent and the Council, respectively. His Honour, at [19], made the following finding regarding the inconsistencies between medical histories provided by these doctors and the evidence of the respondent at trial: "The defendant made extensive and detailed submissions seeking to contradict the plaintiff's evidence on medical histories and attendances based on an analysis of the content of medical notes and reports. In my view, those submissions were misdirected as [the respondent] was not the author of the notes, reports or summaries in question. In those circumstances, fairness requires that little weight be placed on those documents in the absence of explanatory oral evidence on those matters, including the compilation of the notes in question: Mason v Demasi [2009] NSWCA 227." 1. We return to this aspect of his Honour's reasons below. It is first necessary to consider the challenges to the individual aspects of the respondent's evidence that are subject to challenge. Physiotherapy 1. The respondent gave evidence that he attended physiotherapy approximately "every two weeks" for "several months", commencing after his surgery on his right shoulder on 6 August 2013. However, according to the Council's written submissions, the respondent's records reported only three attendances, although he was cross-examined on the basis that he had had six physiotherapy sessions. 2. As the evidence was finally presented, it appeared that the respondent attended three physiotherapy sessions, on 11 September, 20 September and 2 October 2013. It appeared that he cancelled scheduled sessions on 16 October and 28 October 2013. He also gave evidence that he was given equipment to continue treating himself from home. The respondent was discharged from the physiotherapy department on 10 December 2013 when he did not arrange or attend for any further treatment. 3. Thus, to the extent that the respondent attended or had physiotherapy appointments, they were approximately fortnightly as he stated in his evidence. He was also doing physiotherapy exercises at home at this time. In this context, we do not consider his evidence of undertaking physiotherapy for "several months" as being inaccurate in a way that was likely to have impacted upon the trial judge's assessment of his credit. This is particularly so in light of the apparently incorrect and possibly misleading cross-examination to which we have referred. 4. The position may be different in relation to what the respondent is reported to have told Dr Giblin in relation to the number of physiotherapy sessions that he had attended. According to Dr Giblin's report, the respondent said he had had physiotherapy "more than 20 times". The respondent denied that he had told Dr Giblin this and readily conceded that if he had done so that would have been an exaggeration. In light of this frank concession, it was a matter for the trial judge to assess whether he accepted the respondent's evidence, or whether his Honour considered that the respondent had exaggerated the extent of his physiotherapy treatment to Dr Giblin. The state of the respondent's physical health, in particular his right shoulder, in March 2013 1. This issue related to the extent to which the respondent had any previous injuries or symptoms before the accident in March 2013, both generally and regarding his right shoulder. It is clear from the respondent's medical records that he had a history of pain in his knees, due to arthritis, and in his back and left shoulder that pre-dated the accident. In 2002 and 2003, the respondent attended Castle Towers Medical & Dental Centre complaining of soreness in his left shoulder. He attended a physiotherapist with the same complaint in 2008. He received steroid injections into his left shoulder in 2008, but was reported as having recovered in April 2009. He also attended a physiotherapist in 2009 for back pain. 2. There was one recorded instance of the respondent having an issue with his right shoulder prior to March 2013. On 22 December 2006, Dr Podgorski, a general practitioner, saw the respondent and recorded that he had "started to develop right shoulder pain" four weeks earlier. At trial, the respondent denied providing this information to Dr Podgorski. Both Dr Giblin and Professor Ehrlich recorded the respondent telling them that he had no previous history of symptoms or injuries in or to his right shoulder. 3. We are of the view that the above evidence does not go as far as the appellant contended it does, namely, that it showed a real inconsistency between the respondent's evidence and the medical records. Excepting his right shoulder, the respondent did not deny his previous injuries. In fact, he acknowledged them to Professor Ehrlich, and Dr Giblin's report was silent as to his other injuries. This may have been the result of what questions were asked of the respondent in Dr Giblin's examination. It is unclear whether these questions were confusing or compound in nature. Further, and in light of his extensive history of medical issues, we do not consider the respondent failing to mention his reported shoulder pain in 2006 as sufficient to weaken his credibility. The December 2013 fall 1. There was no dispute that the respondent had had a fall in December 2013. The question was whether the fall was on his left or right side. At trial, the respondent said that he had fallen on his left side and had hurt his left shoulder for which he had sought medical treatment once. 2. This evidence did not precisely accord with the contemporaneous medical records. The respondent attended a general practice on 1 January 2014 complaining of a sore back and right shoulder following a fall. An x-ray was prescribed, although later entries in the patient report from the medical practice state that the x-ray was to his spine and that his complaints in the weeks and months after the accident related to his back and pain in his toes and feet. There was no subsequent reference to his shoulder, left or right, relating to the December 2013 fall. Relevantly, in May 2014, the medical records state that the respondent fell over onto his buttocks and lower back in "Xmas 2013" and had "pain low back [radiating] to both feet since". In June 2014, the medical practice records state that the respondent had a fall in Xmas 2013 from which he suffered, as follows: "… lower back pain with pain down the back of both legs to [the] knees and subsequently pain down the back of L leg to L ankle. Also sustained L shoulder and neck pain." 1. Dr Giblin's report referred to the December 2013 fall, recording that that the respondent went to see his general practitioner and had x-rays to his right shoulder, but had no active treatment. Dr Giblin reported that the respondent considered the injury to be a "temporary aggravation", with his symptoms having settled back to where they were prior to December 2013. 2. As we have outlined, in his evidence the respondent said that he did not injure his right shoulder in the December 2013 fall but hurt his left shoulder. That is different from the medical report of 1 January 2014 to which we have referred, but not different from the record made in May 2014. His evidence was also different from Dr Giblin's report. However, the respondent said that in his evidence that he told Dr Giblin that he hoped the fall wasn't going to aggravate his condition, namely, his right shoulder injury, as he had just had an operation on that shoulder. 3. Given the inaccuracy as to the x-ray in Dr Giblin's report and the fact that the respondent did not present at the general practice with continuing right shoulder pain from the December 2013 fall, the respondent's explanation in his evidence as to what he told Dr Giblin is not such that his Honour ought to have disbelieved him. Whether the respondent had been prescribed Endone 1. The Council submitted that the respondent's evidence that he took Endone when the pain was really severe could not have been correct because the only evidence of his having been prescribed Endone was when he was in hospital for the operation to his shoulder. Otherwise, the respondent could not recall who had prescribed that medication. 2. We do not consider that this impacts on the respondent's credit in any serious way. The respondent was not asked whether he was given a supply of Endone at the time he was discharged from hospital and the cross-examination was not sufficiently precise to enable any adverse comment to be made about the respondent's credit. This is the more so in circumstances where the respondent was asked a "double-barrelled" question in relation to Endone and Panadol. The respondent only answered in respect of Panadol, a not unreasonable response given the question asked. The respondent's evidence as to his depressive illness 1. In his evidence in chief, the respondent stated that he was currently taking antidepressant medication and that after the accident was the first time that he had needed the assistance of antidepressants. He said that the accident had impacted upon his relationship with his partner and that, following the accident, he had become too dependent upon her and "she just got tired of the situation". The relationship had subsequently broken down and he and his partner had separated in November 2013. He said that there had been no problems in the relationship prior to the accident. 2. In cross-examination, the respondent said that he did not remember when he started taking antidepressant medication but that he had commenced doing so before his relationship with his partner failed. Under further cross-examination, he conceded that he had commenced taking antidepressants before the accident in March 2013. 3. The Council, in submissions on the appeal, contended that his evidence in chief was a deliberate attempt to give the court a false account of the psychological sequelae of the accident to make it appear that he had been more seriously affected by it than was the case. 4. However, this submission was not well based, as can be seen from the following exchange: "Q. Why didn't you tell his Honour that you actually had been on them for some time before March 2013? A. Why? Q. Yes, why didn't you tell his Honour? A. I was not asked. I was asked whether I was taking the antidepressant, I answered yes. Q. I suggested to you, sir, that you, by your answer, you deliberately tried to mislead the Court in suggesting that you only started taking antidepressants following the incident in March 2013. What do you say about that? A. Well, I can say that I became more depressed when my relationship ended with my former partner." 1. It follows that there was nothing in this aspect of the challenge to his Honour's credit finding that demonstrated any error or a basis upon which this Court would independently come to a different conclusion. Evidence of medical experts: grounds 16 and 17 1. The Council contended, by grounds 16 and 17 of the amended notice of appeal, that the trial judge failed to consider the objective findings and the observations of the medical experts as to the respondent's injury, and misunderstood or misapplied the evidence of Professor Ehrlich as to the nature and extent of the respondent's shoulder injury. The Council submitted that his Honour should have found that the inaccurate medical history recorded by Dr Giblin and Professor Ehrlich was, in fact, provided to them by the respondent. 2. The principal basis for this contention was that the respondent was not a witness of credit. For the reasons already given, although there were some contradictions as between the respondent's evidence and the medical reports, it was a matter for the trial judge to determine whether he accepted the respondent's explanations and concessions. When the inaccuracy in Dr Giblin's report as to the right shoulder x-ray is taken into account, it is apparent that the Council has not demonstrated error in his Honour's credit findings. 3. A further argument advanced by the Council in its written submissions in support of ground 17 was that the trial judge did not take into account Professor Ehrlich's oral evidence when determining what aspects of the medical history had been provided to him by the respondent. We reject this submission. In our opinion the Council did not establish that his Honour failed to take into account Professor Ehrlich's oral evidence. Rather, his Honour accepted Professor Ehrlich as a witness of credit who made "fair concessions". His Honour's comment, at [19], and set out above at [25], also does not suggest that he did not turn his mind to Professor Ehrlich's oral evidence. 4. Further, there was nothing in Dr Erhlich's report, or indeed in his oral evidence, that compelled the acceptance of his evidence over the evidence of the respondent. This is particularly so in relation to Professor Ehrlich's report, which was written in the third person. It was therefore difficult, if not impossible, to discern the questions asked of the respondent by Professor Ehrlich, the answers to which are asserted to be false or inaccurate. Nor is it known if the questions asked were compound in nature or otherwise confusing. In addition, Dr Ehrlich said in his evidence that what he wrote in his report was a paraphrase of what the respondent told him. 5. In the circumstances of this case, the observations made by his Honour at [19] to which we have referred above at [25] were not misplaced for the reasons we have given. We would reject these grounds of appeal. Non-economic loss: grounds 19 and 20 1. The trial judge, at [57]-[59], summarised the disabilities that he found the respondent had suffered as a result of the injury sustained in the accident, including by reference to the respondent's history summarised in the medical evidence: see Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 at [70]; Evidence Act 1995 (NSW), s 60. Those injuries were: a right shoulder injury marked with continuing pain but not, as at the date of trial, as severe as previously; significant restriction of movement in the right shoulder; pain in the region of the right bicep tendon; the occasional need to take pain medication; depression, requiring antidepressant medication; and a 14 cm scar on the right shoulder. 2. His Honour also found, at [59], that the respondent's personal relationship had suffered as a result of his disabilities, culminating in that relationship breaking down. His Honour found that the respondent had become a less congenial companion to his former partner, and that his leisure and sporting activities were significantly adversely affected. 3. His Honour, at [145], considered that Professor Ehrlich's diagnosis, to the effect that the respondent had been left with a significant and permanent restriction of right shoulder movement, of itself justified a significant award of damages for non-economic loss. His Honour referred to the respondent's ongoing need to take medication for pain relief and depression as being significant matters having an adverse impact on his amenity and enjoyment of life. 4. His Honour accepted, at [146], that the respondent's pre-existing medical condition of psoriatic polyarthritis had already significantly affected his amenity and enjoyment of life. His Honour considered that the impacts of the accident, superimposed upon those pre-existing conditions had caused additional and significant problems in circumstances where he could ill-afford to endure such further problems: see Mt Isa Mines Ltd v Pusey [1970] HCA 60; 125 CLR 383 at [18], to which his Honour had referred at [60]. The medical evidence 1. Dr Giblin recorded the respondent's medical history in relation to his physiotherapy and the December 2013 fall as set out above at [30] and [36] respectively. He recorded that, on 6 August 2013, the respondent had surgery in the form of an open repair of a ruptured rotator cuff. Dr Giblin also reported that the respondent was not having any formal treatment but was taking Nurofen tablets for persisting right shoulder pain. 2. Dr Giblin next recorded the complaints that the respondent made of his present disabilities, being: "1. Constant ache with intermittent sharp stabbing pains in his right shoulder and some burning and pins and needles going down his right arm; 2. Neck pain with catching stiffness; 3. Low back pain with shooting pains radiating down the posterior aspect of both his thighs but on the right side it goes down to his right leg and foot." 1. Dr Giblin noted the scarring on the respondent's right arm and that the right bicep muscle had less bulk than the left side. He also reported slightly more wasting of the right shoulder girdle than the left side. On examination, the respondent demonstrated 90° flexion of his right shoulder movement. There was limited extension (20°). Adduction was measured at a range of 30° and abduction at 90°. Internal and external rotation were reported as being at 60°. 2. Based on his history and examination, Dr Giblin made a provisional diagnosis of a soft tissue injury to the right shoulder and secondary soft tissue injuries to the respondent's neck and low back, recently causally related to the subject injury. Dr Giblin's prognosis was as follows: "[The respondent's] condition is stable and his symptoms will persist indefinitely being present in terms of exacerbations and remissions and permanent physical limitation. Specifically he is permanently unfit to use his right upper extremity for heavy repetitious pushing, pulling, lifting and twisting, load bearing, operating vibrating machinery or recurrent activities at or above shoulder height. … his injuries will be susceptible to aggravation and ongoing deterioration. In general, his right shoulder injury will significantly and adversely affect his work opportunities on an open labour market. This is because the soft tissue injury of his right shoulder will be readily susceptible to further aggravation from innocuous physical events." 1. Professor Ehrlich accepted that the respondent had sustained a right shoulder rotator cuff injury that had been treated operatively. He considered that the result was not particularly satisfactory because there was persistent limitation of movement. He recorded however that the respondent was free of pain. 2. Professor Ehrlich reported on the respondent's past health, noting that the respondent said that he had a problem with his left knee and foot due to arthritis which was being treated by specialists and by various drugs. Professor Ehrlich stated the respondent was questioned about having had problems in other joints but said that he had "never had any problems in other joints, certainly not with his right shoulder". 3. On examination, Professor Ehrlich reported that on the right side, the respondent was unable to abduct his right arm beyond the first 45° but there was 90° of anterior flexion. He reported that there was good internal range of the shoulder but external rotation was limited to less than half the normal range. Professor Ehrlich concluded that the respondent had "significant limitation of right shoulder movement". He was of the opinion that the respondent's reported injuries and disabilities were consistent with the manner in which the respondent said the accident had occurred. He considered that the fall should be regarded as a fresh injury unrelated to pre-existing problems. He found no evidence of "functional overlay". Council's submissions and consideration 1. The Council submitted that, contrary to his Honour's findings, the respondent had recovered reasonably well from his right shoulder injury. The Council relied, for example, upon a report of no pain that the respondent made to doctors at the Royal North Shore Hospital on 7 March 2014. It also relied upon the respondent's failure to report the extent of his pre-existing injuries, which has been discussed above. The Council also contended the respondent's range of movement was significantly better than he had demonstrated to Dr Giblin and Professor Ehrlich or that he had demonstrated in his evidence. 2. The Council has not made out these various contentions. 3. There was no independent evidence that the respondent had a greater range of movement than that which he had exhibited to Professor Ehrlich and Dr Giblin. As we understand Dr Giblin's evidence, his measurement of the degree of movement was consistent with that measured by Professor Ehrlich. Both doctors are highly experienced doctors. It is unlikely that the respondent would have been able to disguise a greater range of movement to both doctors, without one or both being able to detect some non-genuine guarding of his actual range of movement. Additionally, the appellant had muscle wasting in the arm and shoulder consistent with lack of use. Further, Professor Ehrlich expressly stated that there was no "functional overlay", thus rejecting that there was any falsity in the respondent's presentation. 4. There was a difference in the respondent's report of pain at various times However, Dr Giblin observed that his condition was one that was subject to exacerbations and remissions, making it likely that there would be occasions when he did experience pain and other occasions when he would not be troubled by pain. Further, as already mentioned, Professor Ehrlich's report was written in the third person, making it difficult to determine what questions were asked of the respondent. 5. Notwithstanding that there were some inconsistencies in the history given to various doctors, and given that we do not consider that any basis has been demonstrated for impugning the trial judge's favourable credit finding in relation to the respondent, we do not see any basis to interfere with his Honour's findings at [58] and [59] as to the respondent's injuries and disabilities. 6. An assessment of the severity of non-economic loss is a matter for the trial judge. It is an evaluative judgment, akin to the exercise of a discretion. In order for there to be appellate intervention, House v The King error must be established: House v The King [1936] HCA 40; 55 CLR 499 at 500-501. The Council has not established any such error. Although the trial judge's assessment was generous, it could not be said as to be so far outside an appropriate assessment of the degree of severity of non-economic loss as to be indicative of error. Domestic assistance: grounds 20 and 21 1. His Honour awarded the respondent the sum of $6,400 for past domestic care and $19,677 for future domestic care pursuant to the Civil Liability Act, s 15. That section provides: "15 Damages for gratuitous attendant care services: general (1) In this section: attendant care services means any of the following: (a) services of a domestic nature, …. gratuitous attendant care services means attendant care services: (a) that have been or are to be provided by another person to a claimant, and (b) for which the claimant has not paid or is not liable to pay. (2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that: (a) there is (or was) a reasonable need for the services to be provided, and (b) the need has arisen (or arose) solely because of the injury to which the damages relate, and (c) the services would not be (or would not have been) provided to the claimant but for the injury. (3) Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided): (a) for at least 6 hours per week, and (b) for a period of at least 6 consecutive months." 1. At trial, the respondent had claimed an amount of $15,700 for past domestic assistance, consisting of 14 hours of assistance costed at $25 per hour for 32 weeks, and intermittent assistance for a following five month period. The respondent said that for a period of around three months he had been unable to cook, drive to medical consultations, wash himself or attend to household tasks. He also said that his former partner "practically did everything around the house" for a period of 8 months following the accident. 2. As his Honour observed, at [155], these assertions were "vague and non-specific", and were supported by the particulars of the respondent's claim rather than by evidence. However, his Honour took these factors into account when making his ultimate finding. Given the imprecision of the respondent's evidence, his Honour found, at [157], that the respondent needed assistance for 8 hours per week for a period of 32 weeks. His Honour accepted the $25 hourly rate claimed by the respondent, as it was less than the maximum statutory rate prescribed by s 15 of the Civil Liability Act. His Honour awarded damages for the 32 week period only, rather than the additional months for which the respondent claimed. 3. Section 15 does not require "that the time taken to perform the services must be referable to some objective standard of efficiency": Coles Supermarkets Australia Pty Ltd v Haleluka [2012] NSWCA 343 at [55]. Given the respondent's evidence that his partner did nearly all domestic tasks for the first 8 months, and given that for a period of about 3 months the respondent was fully incapacitated following the operation on his shoulder, an assessment of 8 hours per week was sufficiently based in the evidence to be sustainable. It was, after all, barely more than an hour a day. 4. In relation to future domestic assistance, the respondent claimed a sum of $28,937, constituting 5 hours of domestic assistance at $25 per hour over 5 years. His Honour held, at [170], that an allowance of 4 hours per week for 5 years at $25 per hour was appropriate. His Honour awarded these damages on the basis that they would be provided by an external source and at a cost to the respondent, in light of the fact that "it cannot be reasonably assumed [the respondent's] family members will continue to be available to assist him with domestic tasks in the future". This was a reference to the fact that since his relationship had broken down the respondent's adult children had provided him with household assistance. His Honour then applied a 15 per cent discount for potential vicissitudes that may be associated with the respondent's underlying condition of psoriatic polyarthritis. This discount also took into account the following factors: "… the likelihood of a relatively short lead-in time between [the respondent's] present regime in which he receives domestic assistance from his children, the external provision of such services in the future, and the possibility of progression of [the respondent's] underlying condition of psoriatic arthritis." 1. The Council contended that this finding was characterised by two errors. The first was that the respondent led no evidence to prove the future domestic assistance he would require beyond the particulars in the pleading. However, the respondent gave evidence of his restricted domestic abilities and there was evidence from Dr Giblin that the respondent would need "some degree of permanent physical support in terms of his heavy domestic responsibilities". In our opinion, the evidence was sufficient to support his Honour's finding. 2. The second error for which the Council contended was that his Honour's determination that the respondent's care would be commercial rather than gratuitous "was not supported by the evidence and was contrary to principle". His Honour's determination was significant, as s 15(3) proscribes the awarding of damages for gratuitous attendant care services unless those services are required for at least 6 hours per week over a consecutive 6 month period. 3. The question as to whether it is appropriate to assume that commercial domestic assistance might at some point in the future replace a plaintiff's current gratuitous assistance was considered in the case of Miller v Galderisi [2009] NSWCA 353. In that case, the Court held that damages on the basis of commercial domestic assistance should not have been awarded by the trial judge, as Mr Galderisi was living with his 51 year old wife, and there was no reason to suppose that she would not continue to be willing and able to assist him for many years to come. At [18], the Court observed: "There is 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." 1. See also Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 83 NSWLR 302 at [45]-[46]; Gordon v Truong; Truong v Gordon [2014] NSWCA 97. 2. The Court also held, at [22]: "In Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 at 643, Deane, Gaudron and McHugh JJ accepted that future events 'may be predicted and the hypothetical may be conjectured' and required that the Court take its assessment of chance into account unless a particular chance was 'so low as to be regarded as speculative – say less than 1 per cent'. However, in most cases prediction and conjecture do not in practical terms allow for such precision. As explained by Brennan and Dawson JJ at 640, damages founded on 'hypothetical evaluations defy precise calculation'. In most cases, the exercise is better described as a form of speculation guided by knowledge of the plaintiff's past and expectations, derived from general experience, as to the future." 1. Miller v Galderisi was recently considered by this court in the case of White v Benjamin [2015] NSWCA 75. In that case, the plaintiff had been cared for gratuitously by her husband, who was self-employed. The trial judge, in rejecting the plaintiff's claim for future domestic assistance provided on a commercial basis, held that a "plaintiff must establish that a need for commercial assistance is likely to arise in the future after the availability of gratuitous assistance ceases", citing Miller v Galderisi as authority for this proposition. Basten JA (Meagher JA agreeing) held, in allowing the appeal: "87. Although it is not entirely clear what standard the trial judge was applying by reference to what was 'likely' and whether there was any 'likelihood', it seems that he was applying a more definitive test than that required … it would be wrong to place too much weight on the existence or absence of direct evidence of intention. … 88. What was required was consideration of the family circumstances, including the fact that Mr White was self-employed and apparently busy; that his wife was unable to do heavy cleaning and hanging out clothes; and that cleaning services are not the kind of personal domestic assistance which one spouse may prefer to obtain from another. Rather, they are services which are readily available and availed of by those who can afford them and who are otherwise engaged in remunerative employment or have a disability." 1. In light of these authorities, the respondent's evidence of his "family circumstances" tending to show his need for future commercial domestic assistance was sufficient for his Honour to find as he did. The respondent's relationship had broken down following the accident. He lives with two of his three adult children. It is not unreasonable to presume that the respondent's children will move out of the respondent's home and establish their own homes: see Gordon v Truong at [126]. It was open to his Honour to draw the inference that the gratuitous care he was receiving would cease at some stage in the future. Having said that, we acknowledge that the evidence on this aspect of the claim for damages was fairly minimal, but in the circumstances was sufficient to support his Honour's findings. 2. It follows that we reject these grounds of appeal. Orders 1. The appeal is 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: 22 December 2015