Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Australia and New Zealand Banking Group Ltd v Haq [2016] NSWCA 93 Hearing dates: 8 March 2016 Decision date: 03 May 2016 Before: Basten JA at [1], Simpson JA at [59], Sackville AJA at [221] Decision: (1) Allow the appeal as to quantum in part and set aside the orders made in the District Court on 15 April 2015. (2) In place thereof, give judgment for the plaintiff in an amount of $582,000, to date from 15 April 2015. (3) Otherwise dismiss the appeal. (4) Order that the appellant pay 75% of respondent's costs in this Court. Catchwords: TORTS – negligence – personal injury – respondent injured when tripped on wires under desk – whether primary judge erred by failing to determine liability by reference to s 5B Civil Liability Act 2002 (NSW) – no reference to Civil Liability Act at trial by parties – no contested issues under Civil Liability Act – no error by primary judge in failing to address issues not presented for determination TORTS – negligence – contributory negligence – whether primary judge erred in finding no contributory negligence – no basis established for overturning finding of primary judge DAMAGES – assessment of damages – whether non-economic loss assessment excessive – whether past economic loss assessment excessive – whether future economic loss assessment excessive – whether award for past domestic assistance excessive – whether award for future domestic assistance excessive – whether award for future medical expenses excessive - damages reassessed for past economic loss, past domestic assistance, future domestic assistance and future medical expenses – appeal allowed as to quantum of damages Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5F, 5G, 5H, 5R, 13, 15, 15B, 16 District Court Act 1973 (NSW), s 127 Motor Accident Compensation Act 1999 (NSW), s 126 Supreme Court Act 1970 (NSW), s 75A Workers Compensation Act 1987 (NSW), ss 40, 42, 151Z Cases Cited: Amoud v Al Batat [2009] NSWCA 333; 54 MVR 167 Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479 Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139 Coulton v Holcombe [1986] HCA 33; 162 CLR 1 Fox v Wood [1981] HCA 41; 148 CLR 438 Gordon v Truong [2014] NSWCA 97 Laresu Pty Ltd v Clark [2010] NSWCA 180 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Marsland v Andjelic (1993) 31 NSWLR 162 Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68 Miller v Galderisi [2009] NSWCA 353 Nominal Defendant v Lane [2004] NSWCA 405 Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy; FBIS International Protective Services (Aust) Pty Ltd v Hennessy [2015] NSWCA 253 Rallis v Pang [2003] NSWCA 202 Sampco Pty Ltd v Wurth [2015] NSWCA 117 Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418 Transpacific Industrial Solutions Pty Ltd v Phelps [2013] NSWCA 31; 230 IR 438 Water Board v Moustakas [1988] HCA 12; 180 CLR 491 Woolworths Ltd v Ryder [2014] NSWCA 223, 87 NSWLR 593 Zorom Enterprises v Zabow (2007) 71 NSWLR 354; [2007] NSWCA 106 Category: Principal judgment Parties: Australia and New Zealand Banking Group Ltd (Appellant) Nur Haq (Respondent) Representation: Counsel: N Polin SC (Appellant) M Daley (Respondent) Solicitors: Moray & Agnew (Appellant) MN Compensation Lawyers (Respondent) File Number(s): 2015/123867 Decision under appeal Court or tribunal: District Court Date of Decision: 15 April 2015 Before: Maiden DCJ File Number(s): 2014/68194 [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.] Judgment 1. BASTEN JA: On 10 March 2011, Ms Nur Haq ("the claimant") was working as a trainee at the premises of the Five Dock branch of the ANZ Bank. She was undertaking exercises on a computer at a workstation in the public area of the premises when, on seeking to stand up from the desk, she caught her foot on "a bunch of wires", tripped and fell, injuring her left knee. 2. She made a claim against the Bank for damages resulting from the Bank's alleged negligence. The proceedings were commenced in March 2014, a trial being held on 13 and 14 April 2015. The trial judge, Maiden DCJ, gave judgment on the following day, 15 April 2015. He upheld the claim and assessed damages in the sum of $713,532. 3. So far as the question of liability was concerned, the case turned entirely upon the evidence of the plaintiff. The Bank's defence relied upon two propositions, namely that if the plaintiff's foot caught on a cable or wires, causing her to trip, the wires must have been in the open and hence an obvious risk of which she was presumed to have been aware, in accordance with s 5G of the Civil Liability Act 2002 (NSW). Accordingly, pursuant to s 5H, the Bank said that it had no duty to warn her of that risk. Secondly, her failure to see the electric cables constituted contributory negligence on her part. 4. The Bank's notice of appeal sought to challenge each necessary legal element in the cause of action in negligence and each component of the award of damages. As explained more fully by Simpson JA, that approach bore no relationship to the somewhat casual approach adopted by both parties at the trial. By way of example, although the Bank was not the employer of the claimant, who was employed by a recruiting agency, the Bank did not seek in its own defence to rely upon the reduction commonly available under s 151Z of the Workers Compensation Act 1987 (NSW), where the employer, even if not sued, is shown to be partly responsible for the claimant's injury. (A belated attempt to rely upon that provision was rejected by the trial judge. [1] ) Furthermore, apart from tendering an undated photograph of the workstation taken long after the event and revealing nothing of significance, the Bank neither called evidence, nor tendered any documents relevant to liability. Liability 1. In order to establish liability on the part of the Bank, the claimant had to establish the mechanism by which the accident occurred. The area of dispute was quite limited. Thus, there was no dispute that the claimant tripped as she sought to stand up, nor that the cause of her trip was at least one electric cable, which caught her left foot. 2. She described in her evidence having been sitting at the desk for some two hours when she decided to get up in order to take her lunch break. She was sitting on a chair with wheels. In order to get up she moved her chair backwards and swivelled the chair to the left. She said then "I stood up and took a step with my right foot, and then I took another step with my left one and then I fell down". [2] She felt something around her left foot, looked and saw a "bunch of wires around my foot." [3] 3. Understandably, the claimant was cross-examined as to the mechanism of the accident. Having pushed her chair back and swivelled to the left, in order to stand up, and having stood up, her feet must have been clear of the area under the desk. She then took a step with her right foot and agreed that nothing happened at that stage. Rather, it was when she took a second step with her left foot that she felt her foot "get caught". The cross-examiner continued: [4] "Q. Your left foot did not get caught on wires underneath the desk, did they [sic]? A. It got caught underneath the desk. Q. It got caught at the time you were taking your second step away from the desk? A. Somehow it got tangled in my left foot." 1. The plaintiff's case was quite straightforward: if, as was accepted, there was a wire which caught around her foot, it should not have been in a position where that could happen and its presence constituted a breach of the Bank's duty of care to her. The Bank's case was equally straightforward: if the wire caught around her foot when her feet were under the desk, she should have been aware of it before she stood up and took not only one, but two steps. If, on the other hand, the wire was on the floor, not under the desk but in the open, again she should have been aware of it. 2. On the claimant's evidence, the Bank could not succeed in avoiding liability unless it had some independent evidence as to the state of the wiring at the time of the accident. It had none. On the other hand, the claimant said she reported the accident to the assistant manager whose name she gave: it was recorded in the transcript as "Halid" [5] and in the judgment as "Kharlif". Although the trial judge said that the claimant was "placed back on the chair", after taking the wire off her foot, with the assistance of the assistant manager, that was not her evidence. Rather, her evidence was in the following terms: [6] "Q. Did you actually get up yourself? A. Yes. I got up on the chair. I sat on the chair straightaway. Q. Who did you report the accident to if you reported it? A. The assistant manager by the name of Halid." 1. There can be no basis in this material to cavil with the finding of liability. The Bank's challenge in this respect should be rejected. Contributory negligence 1. The finding that there was no contributory negligence is more problematic. The reasoning of the trial judge in this regard was as follows: [7] "The one photograph tendered is, at best, poor quality, and the uncertainty of when the photograph was taken makes the Court's task difficult in trying to establish what, in fact, happened or being able to assess the risk hazard. In absence of the defendant producing any evidence to identify the risk hazard as to whether or not it was obvious or to what extent it was obvious, and noting that there is no photograph from behind what would have been the seated position of the plaintiff, the Court is unable to make such a finding, and, therefore, the claim under sections of contributory negligence (that is, ss 5 and 6) is not made out." 1. The reference to "ss 5 and 6" is obscure. If it were intended to be a reference to the pleaded defence, contributory negligence was pleaded in par 4. If it were intended to be a reference to the Civil Liability Act, contributory negligence is dealt with in s 5R and s 5S. Nothing of significance would seem to turn on that matter; rather, it is implicit in the passage set out above that the judge had in mind the burden of proof on the Bank to establish contributory negligence. The Bank undoubtedly bore that burden; however, it was open to the Bank to rely upon the claimant's own evidence as to how the accident occurred, in order to establish carelessness on her part. 2. In dealing with the claimant's evidence, the trial judge accepted "that she was not aware of the risk and that she had not seen the loose wiring." [8] He further found: "On the plaintiff's evidence, it clearly was a trip hazard, and, on her evidence, she was not aware of the risk and it was not from her previous experience a matter that she would have gone and looked for either by looking under the desk or getting down on perhaps hands and knees in order to investigate what was the cabling/wiring to the work station she had been directed [to]." 1. So much can be accepted; however, that finding did not grapple with the Bank's case, which turned not on any previous experience, but on the particular mechanism by which she fell and the point at which she should have become aware of the existence of the loose cabling. 2. Not only did the claimant swing her legs around to the left, but she took a step with her right foot before she tripped. Accepting, on the best case for her, that the cabling was not visible, and she had not come into contact with it in the two hours during which she had been sitting at the desk, it must have been dragged out on her left foot as she swivelled and she must have stepped across it with her right foot as she took her first step after standing up. Although precisely how that happened is unclear, it should be accepted that this was the most probable eventuality. If she did not become aware of the presence of the "bunch of wires" (to use her expression) before she tripped, she should have, as a reasonable person in that position. [9] 3. The Bank submitted that a finding of contributory negligence would involve a proportion of at least 50%. While there is some force in that submission, the uncertainty as to the precise mechanism of the accident warrants a lower figure. Furthermore, as the party responsible for creating an unsafe workplace, the bulk of the responsibility lay with the Bank. I would assess contributory negligence at 25%. Damages (a) non-economic loss 1. There was a challenge to the finding of non-economic loss, which was assessed at 29% of a most extreme case, being $103,000. In submissions at trial the Bank had suggested a figure of 25% and the plaintiff a figure of 33% of a most extreme case; the trial judge adopted the mid-point. It is difficult to justify a complaint about that conclusion, although a reasoned determination would have required consideration of which injuries were properly attributable to the accident, and the extent of those injuries. (b) past economic loss 1. The trial judge adopted the calculations of senior counsel in relation to past economic loss. Neither party sought tax returns for the claimant's employment immediately prior to the accident. However, two figures appear to have been accepted, namely that the period between the injury and the trial was 213 weeks and that, during that period, she had employment from which she earned $11,713. 2. It is unfortunate that the Court does not have available to it the schedule placed before the trial judge on behalf of the claimant, which was referred to in submissions. However, the relevant figures needed to be derived from the evidence, which the Court does have. 3. Senior counsel for the plaintiff used a net base rate of $858 per week, based on her evidence that she proposed to increase her working hours to 39 hours per week. However, that did not reflect the workload she was in fact undertaking at the time of the accident. At no earlier point had she worked full-time. While she had young children, she had worked part-time for some 22 years with the Commonwealth Bank, at 25 hours per week. [10] In 2010 she decided to start part-time study for a nursing degree. At that stage, her youngest child was approximately 19 years of age. In October 2010 she ceased her work with the Commonwealth Bank. In November of the same year she started with KinCare Community Service, which provided nursing services to persons suffering minor dementia but who remained at home. She continued to work about 25 hours a week. [11] When she commenced work at the ANZ Bank, four days before the accident, she was working 19 hours a week and reduced her hours at KinCare to 10 hours a week, making a total of 29 hours a week. She said that she proposed to increase her hours at KinCare back to 20 hours per week, although she did not say when she would do that or how long her nursing study would take. As she had never worked 39 hours per week prior to the accident, the calculation undertaken by counsel for the claimant, in fact based on 40 hours, should not have been accepted. 4. A calculation based on the worker's compensation payments, being $748 per week gross, should be treated as covering 29 hours work, thus giving an average gross hourly rate of $25. To treat the worker's compensation as relating only to the job in which she was injured, when her incapacity extended across both jobs would be to disregard the calculation of weekly payments of compensation by reference to "[t]he reduction in the worker's weekly earnings" [12] and the reference to "the average weekly amount that the worker is earning, or would be able to earn in some suitable employment, from time to time after the injury". [13] It would also be to disregard the requirements of s 42(7), which provided that in the case of a worker employed under two or more contracts of service, with different employers, the current weekly wage rate is a reference to the sum of the current weekly wage rates. [14] 5. Past economic loss is calculated by reference to net earnings, not gross. A gross payment of $748 per week may equate to approximately $600 per week net. (That amount is close to the figure relied upon by the claimant at trial, namely $800 per week net, which, allowing for the diminution in hours from 39 to 29, becomes $595; it is also close to the figure relied on in her pleadings, namely $585.) Allowing 213 weeks, the figure for lost income will be $127,800, from which actual income earned ($11,713) should be deducted, giving a balance $116,000 in round terms. With superannuation, the final figure is, again in round terms, $129,000. (c) future economic loss 1. The calculation of future economic loss required an assessment of the claimant's most likely future circumstances, but for the injury, pursuant to s 13(1) of the Civil Liability Act. The amount calculated according to those circumstances must be adjusted for vicissitudes, in accordance with s 13(2). The submissions before the trial judge with respect to future economic loss referred to a report prepared by a vocational assessor (Mr Craig Martin), which identified average national earnings of a bank worker as at December 2014 as $1,180 gross per week and $943 nett per week. Those were the figures relied upon by the trial judge, with the implicit finding that her most likely future circumstances but for the injury involved fulltime employment as a bank worker. Taking a figure "slightly in excess of $1,100", the judge assessed her weekly loss at $400. Allowing 20% for vicissitudes, he awarded an amount of $170,000 for loss of future earning capacity. For the reasons given by Simpson JA, there is no basis to interfere with that conclusion. 2. In calculating superannuation on that amount, he took a figure of "13% approximate", allowing a further amount of $22,019. Although the reasoning was by no means clear, it should be assumed that the calculation of future economic loss was based on a nett loss per week. The allowance for superannuation should have been calculated according to the current obligation under the Superannuation Guarantee (Administration) Act 1992 (Cth), which is calculated at 9.5% of gross ordinary time earnings. (It may be assumed for present purposes that that figure equates to "average national earnings".) Calculated on a net figure, this would probably not justify 13%, but the appellant accepted 12% in submissions at trial and the difference does not warrant appellate intervention. (The calculation was otherwise in accordance with the standard methodology: see Zorom Enterprises v Zabow. [15] ) Future medical expenses 1. The trial judge allowed an amount of $30,000 for future medical expenses, comprising $5,000 for future medication and $25,000 for a "prospective operation." [16] The submissions on the part of the plaintiff in this regard were as follows: [17] "So future out-of-pocket expenses, I think somewhere I saw the cost of knee surgery as being about $25,000, but we don't know when it is going to happen and whether it will fix things completely and physiotherapy will be necessary, even without it probably, pills, a bit of emotional treatment wouldn't hurt etc." 1. The medical evidence which supported that assessment came from an orthopaedic surgeon, Dr Peter E Giblin. Dr Peter Giblin was not her treating surgeon but provided a medico-legal report on instructions from her solicitors, following a consultation on 28 May 2014. He concluded: [18] "Her condition is stable and her general prognosis is good. She will always have some soft tissue symptoms in the left knee and left shoulder with permanent physical restriction." He then noted the physical constraints so far as work and other activities were concerned and continued: "Her knee injury may be susceptible to long term deterioration and repetitive aggravation. Further surgery is not mandatory at this juncture but cannot be excluded into the longer term. Surgical considerations may include, but not be limited to, a left total knee replacement. The all up hospital medical and ancillary costs would be in the order of $25,000 barring any complications …." 1. Dr Peter Giblin saw the claimant again on 15 January 2015. Noting that she would be fit for a sedentary job for about 20 hours per week, he continued: [19] "Her ongoing medical management will remain conservative, symptomatic and supportive in character and it is likely that these costs will continue to be similar to those over the last 12 months on [a] pro-rata basis and required for a further 12 months. In my view, surgical considerations are not mandatory at this juncture, but it is a reasonable clinical expectation that, based upon deterioration of her left knee, over a period of a generation [degeneration?], a left knee replacement operation may be required." 1. Dr John Stephen, orthopaedic surgeon, saw the claimant on 15 September 2014 and reported "no suggestions as to any further medical treatment." Dr James Bodel, a further orthopaedic surgeon who saw the claimant on 5 January 2015 provided a report to her solicitors stating that she had "no current capacity for work", but recommending no further treatment. (The evidence did not reveal whether he had seen Dr Peter Giblin's reports.) 2. Having regard to the state of the evidence, it was an error to award the claimant the full amount of the possible operation on her knee, without determining the likelihood that such an operation would be required and when it might be required. 3. In Marsland v Andjelic [20] this Court accepted that Malec v JC Hutton Pty Ltd [21] required that claims for services which might be classified as possible rather than certain required an allowance based on possibilities, not probabilities. [22] The approach based on Malec, requiring an assessment of contingencies, was upheld in Amoud v Al Batat. [23] 4. The claimant accepted the criticism of the judgment in this regard and conceded that a figure between $10,000 and $15,000 would be appropriate. The appellant submitted that even that range was too high. The evidence did not support the proposition that such an operation was a certainty, or indeed a probability. It was a possibility and one which might not arise for many years. If the event were to occur many years into the future, it would be appropriate to discount the award of damages for that reason. Because no precise calculation can be made of the different variables, the only course open to the trial judge was to award a proportion of the present cost of such an operation. The exercise is entirely speculative, but because it must be undertaken purely on the written medical evidence (no doctor having been called at the trial) this Court is as well able to do so as the trial judge. I would award the amount at the bottom end of the claimant's range, namely $10,000. Past domestic services 1. The trial judge allowed a figure for past domestic services, provided on a gratuitous basis, at the rate of $27 per hour for 10 hours per week, over 213 weeks (described as 4.1 years), giving a figure of $57,564. 2. There was evidence supporting a need for what were described as "heavy domestic responsibilities" by Dr Peter Giblin. [24] In his final report Dr Giblin referred to "permanent physical restrictions in terms of pursuing her domestic duties in an unlimited and unrestrained fashion." [25] 3. On the other hand, the records from the claimant's general practitioner, Dr Tan Letran, included material from a rehabilitation consultant, Insight Services Group. A report of a meeting on 25 February 2014 stated that the claimant "continues to be independent with most activities of daily living, however occasionally requires the assistance of her husband or children with cleaning." The evidence was put to her in cross-examination, based on a similar statement made in a meeting on 30 April 2014: [26] "Q. I will put it this way: would it be fair to suggest that as of April last year you were doing all the domestic tasks at home, inside the house that is, at a modified pace, so you did it a bit more slowly, and that where you needed particular help on heavier things, you got that from your husband and children when required? A. Yes." 1. On being pressed, she said that she could do sweeping, but not mopping, although in part that problem appears to have been a difficulty with her left calf muscle, which she tore at some time after the accident. [27] 2. In her evidence in chief she claimed that she could not do vacuuming, mopping, "[t]he heavier types of bathroom cleaning" or "standing too long hanging the clothes." She could also not do gardening which (other than mowing) she had done prior to the accident. [28] Her daughter also gave evidence that, until she moved out in 2012, she was spending two hours a day and three or four hours on weekends, "[h]elping her with her shopping, her groceries, cooking and cleaning, mopping and vacuuming and putting … the clothes on the line, taking them off, putting them away and the bathrooms." She also said that she changed linen and dusted. As to the time involved, her evidence was as follows: [29] "Q. About how many hours a week were you spending through 2011, 2012, looking after these things? A. Probably two hours a day. On the weekends, maybe half a day, three, four hours. HIS HONOUR: Q. I'm sorry what was that answer? A. Three or four hours." 1. This somewhat uncertain evidence was sought to be clarified: [30] apparently by reference to a period after the daughter had moved out in 2012, she stating that she would go to her mother's house maybe one or two days a week and would "try to get there every weekend, at least." She estimated that, after she had moved out, she assisted "about four to six hours per week." [31] She also said that her mother could go to the shops by herself and do the shopping "now", but in respect of things like mopping "[t]hat might be a little bit hard for her because it would mean getting the bucket, the water and using that, or things like getting a bag of rice or something like that, a bag of onions, that would be hard for her, so she wouldn't do things like that." 2. The force of the daughter's evidence was somewhat qualified in cross-examination. She could not remember a period in 2012 when her mother had been working four days per week. Further, much of her evidence about folding clothes and helping with the linen appeared to amount to volunteered help rather than required assistance. 3. In the course of oral submissions at trial, counsel for the Bank referred the judge to reports by Dr Letran, who stated, on 10 March 2013 "Mrs Haq does not required [sic] domestic assistance at the time of writing this report". Dr Letran repeated that statement in a report of 30 November 2014, although he also noted that her current restrictions include "lifting restriction of 5kg from floor to chest … to avoid kneeling, lifting over shoulder height, avoid repetitive work, avoid cleaning and kitchen work." 4. The judge was also referred to an early report by Dr Bodel, who examined the claimant on 31 January 2013 on the instructions of her solicitors, and noted that she "was able to return to work to modified duties six hours a day" and "should be capable of permanently modified duties that avoid kneeling, squatting or climbing or strenuous and repetitive tasks with the left upper [limb]". The trial judge commented in the course of argument, "well, that is historical", which was true, but it remained relevant to an assessment of her capabilities at that point in time. 5. Dr Bodel prepared a further report, consequent upon his examination on 5 January 2015, which remarked that the claimant "apparently has no current capacity for work" but continued that, "[b]ased on her clinical presentation she should be able to work at least 20 hours work per week in permanently modified duties and the banking type of work would be more appropriate than the nursing work." Dr Bodel continued: "She does require domestic assistance for heavy household maintenance and cleaning activities at the rate of two or three hours domestic assistance per week indefinitely as a consequence of her ongoing injury." 1. None of that material was discussed by the trial judge in his reasons for awarding domestic assistance, although he appears to have accepted the figure of two hours per week as sufficient to cover current needs. The relevant explanation of the figures arrived at was in the following passage: [32] "In assessing the domestic assistance, the Court accepts that because of the two operations and because of the continuing difficulties, she has had to have a significant amount of gratuitous support from primarily her daughter and I find that that, doing the best I can, equates to approximately 10 hours per week up to date. However, with the position now is that in the future I find that averaging it out, that most likely that she would need assistance for two hours per week to carry out the heavy work in her home, such as the mopping of the tiled areas …." 1. The significant inconsistencies in the evidence required express consideration. Although it is true that the judge rejected the claimant's assessment of a need for 15 hours per week, as that which she had received by way of domestic assistance in the past, there was no explanation as to how the 10 hour figure was reached. There was, at the very least, a strong indication in the daughter's evidence that she provided filial assistance to her mother, and her evidence did not distinguish between that which was required as a result of the accident and that which she willingly gave in any event. That in turn cast a doubt upon whether the claimant's estimate also confused those elements. While it is difficult to put much weight on medical evidence which purports to identify how much is required by way of domestic assistance, it is clear that the predominance of the medical evidence was not supportive of any finding of six hours or more per week being required for past assistance. 2. There is also some confusion in the judge's own finding, which allowed 10 hours a week "up to date" and then described "the position now" as requiring an allowance of only two hours per week. While there was support for a finding of at least six hours per week up to April 2014, it is not possible to identify a clear basis upon which that intensity is justified thereafter. There was probably a greater need for domestic assistance during the period after the injury and up to the time of recovery from the second operation, which was undertaken on 22 November 2011. 3. Taking an average of 10 hours per week in the earlier period and six hours in the later period would allow an amount calculated at eight hours per week over three years (up to April 2014) at $27, which amounts to $33,700. However, the appellant conceded a figure of 6 hours per week up to the date of the trial, which would total $34,500. The latter amount should be allowed. Future domestic assistance 1. The judge allowed an amount for future domestic assistance at the rate of two hours per week at commercial rates. Because that level of assistance would not have qualified the claimant for an award for gratuitous services, within the limitations imposed by s 15(3) of the Civil Liability Act, the award required the judge to be affirmatively satisfied that commercial assistance would be obtained in the future. That depended upon the last question and answer in the examination in chief of the claimant, which was in the following terms: [33] "Q. So for the future, would you prefer to have paid or unpaid care to do this housework that you can't do? A. Paid care." 1. Given the statutory constraint on an award for domestic assistance provided gratuitously, it is necessary for the trial judge to make a finding as to the specific need for commercial assistance. The case law in that regard is ambivalent as to whether that involves a Malec assessment of possibilities, or whether it requires a finding on the balance of probabilities. While the judge made a finding as to her likely need, he made no finding at all as to the likelihood or otherwise of the need being provided on a commercial basis. In circumstances where domestic assistance had been provided gratuitously by family members up to the date of trial, including during the period when the claimant was employed four days per week, this question needed to be addressed. 2. In Nominal Defendant v Lane [34] the Court concluded that damages should be awarded in respect of a need for commercial domestic assistance likely to arise when gratuitous assistance was no longer likely to be available. However, in Miller v Galderisi [35] an award was set aside where it was made "upon the assumption that the respondent required commercial domestic assistance immediately" when it was "clear that he did not require it immediately because it was being provided gratuitously, though … not at a level of intensity that permitted recovery from the appellant". 3. In Miller, the possibility that commercial domestic assistance would be required in the future was dealt with as a contingency, in accordance with reasoning in Malec. In Gordon v Truong [36] Simpson J (with the agreement of Macfarlan JA) approached the matter as involving a finding on the probabilities. The difference in views was noted in Sampco Pty Ltd v Wurth, [37] although the issue did not need to be determined because counsel were content to approach the matter on the basis of Malec contingencies. As a matter of principle, in my view, that approach is correct and is in accordance with Miller v Galderisi. 4. However, even if it be incorrect, the result may not be greatly different. In other words, the trial judge must consider at what point in time commercial assistance, will, on the balance of probabilities, eventuate and must make some allowance, by way of vicissitudes, against the possibility that other events will intervene. 5. On one view, there was no evidence addressing this question other than the statement of preference in the evidence of the claimant. Nevertheless, it could no doubt be accepted that at some stage her husband would be unavailable to assist and her adult children, including her daughter, might move further away or might otherwise not have time to provide the required assistance. It was also entirely possible that assistance might be obtained at different times in relation to different activities (paid assistance having always been used for lawn mowing) and might have been obtained sooner for other gardening, which is presently done by the claimant's husband. [38] At the time of trial, both of the claimant's sons lived at home, although both were expected to move out in the near future. Arguably, that would reduce the load on the claimant, although she was not asked whether that was so, or whether they provided helpful assistance. However, the daughter gave evidence that, when she was at the parental home, she saw both her brothers and her father assisting, continuing: [39] "My dad cooks and likes to prepare meals, and my brothers they help around the house. They have their own girlfriends and wives as well, and they are regularly there as well, so they do their own thing, if they need to cook or clean or eat. They're quite self-sufficient now." 1. Doing the best one can with that evidence, it is likely that at some stage in the future the claimant would obtain commercial assistance. Indeed, that assistance may extend beyond that posited by the trial judge, namely two hours per week. However it is also likely that at some stage the claimant might have required commercial assistance with heavy cleaning or gardening for reasons unrelated to the accident. She has for some time been taking medication for type 2 diabetes and suffers from an anxiety state which the judge found was not attributable to the accident. 2. Taking these circumstances into account, it is not possible to undertake any precise calculation, beyond awarding an amount by way of a buffer against the various contingencies. I would allow a sum of $30,000 for future domestic services, provided on a commercial basis. Conclusions 1. There was no challenge to the Fox v Wood component of $18,000, being compensation for tax payable on the worker's compensation award, nor to the figure of $67,209 for past out-of-pocket expenses. These various amounts result in a sum, in round terms, of $582,000. 2. I would have made a reduction for 25% for contributory negligence. However, as that is a minority view, no reduction will be made. The judgment in the District Court should be set aside and there should be a judgment in favour of the claimant for $582,000, to date from 15 April 2015. Costs 1. Although the appellant has been successful in obtaining a reduction in the damages of approximately 20%, it was entirely unsuccessful in its challenge with respect to liability and in respect of many of the specific issues raised in its notice of appeal. Even the exiguous written submissions filed in this Court were largely inadequate. Of some 9.5 pages, approximately half were devoted to issues relating to the duty of care, breach of duty, causation and the award with respect to non-economic loss, on which the appellant has failed. Most of these matters related to issues not raised before the trial judge and which should not have been raised on appeal. The claimant was thus put to expense in ways which should not have occurred. 2. In these circumstances, the Bank should pay 75% of the claimant's costs in this Court. Given the unsatisfactory presentation of the case at trial and in this Court, one hopes that the fees charged (on both sides) will be modest. Orders 1. The Court should make the following orders: 1. Allow the appeal as to quantum in part and set aside the orders made in the District Court on 15 April 2015. 2. In place thereof, give judgment for the plaintiff in an amount of $582,000, to date from 15 April 2015. 3. Otherwise dismiss the appeal. 4. Order that the appellant pay 75% of respondent's costs in this Court. 1. SIMPSON JA: On 10 March 2011 the respondent, Ms Nur Haq, suffered a workplace injury. She commenced proceedings in the District Court for damages in negligence against the appellant, as occupier of the premises in which she was working at the time of her injury. After a hearing that began on 13 April 2015 and concluded the following day, the primary judge found that the respondent had established that the appellant was negligent (in respects that will be outlined below) and awarded the respondent damages in the sum of $713,532.05. 2. Pursuant to s 127 of the District Court Act 1973 (NSW), the appellant appeals against both the finding of liability and the quantification of damages. The appeal 1. It is convenient at the outset to note the pleadings. By her Statement of Claim the respondent pleaded that she was employed by "Hoban Recruitment System" ("Hoban"), and assigned to work at bank premises at Five Dock of which the appellant was occupier. She was required to sit at a desk in the premises, underneath which was "a tangle of wires". When she attempted to rise from her chair, her left foot became entangled in the wires, with the result that she fell and suffered injury. She pleaded that the appellant was under a duty of care to her, of which it was in breach, and was negligent. 2. The appellant filed a Defence. It put in issue the whole of the respondent's pleadings, and asserted contributory negligence on her part. It particularised its case on contributory negligence in the following way: "(a) If [the respondent] establishes that there were wires under her desk and that her left foot became tangled in those wires then; (i) Failing to appreciate the existence of those wires; and (ii) Failing to keep her left foot clear of those wires. (b) Failing to take care for her own safety in the circumstances." Further, the appellant pleaded that, if the respondent sustained the injury, loss and damage alleged, then such injury, loss or damage was caused by her failure to avoid an obvious risk of the kind specified in s 5F of the Civil Liability Act 2002 (NSW), and that the respondent was presumed, by s 5G of the Civil Liability Act, to have been aware of the risk of harm and that the appellant was accordingly under no duty to warn her of that risk. BACKGROUND The respondent's case at trial 1. The case made by the respondent was as follows. The respondent was born in January 1962 in Fiji. In 1977, at the age of 15, she migrated to Australia. She did not complete high school because she married. A son was born in 1980, and thereafter she had another three children, the last born in 1991. She worked in an administrative capacity for three years; in 1988 she took up employment in the Commonwealth Bank on a part time basis, working 23 hours per week. She worked as a teller, and in customer service. She maintained that employment for 22 years. She then developed an interest in a nursing career, and, in June 2010, enrolled in a part time course with a view to obtaining a certificate that would entitle her to work as a nursing aide. In October 2010 she ceased her employment with the Commonwealth Bank, and worked with a home care service organisation (KinCare), working with dementia patients in their homes. She was then working about 25 hours per week with KinCare. 2. In March 2011, she took part time employment with Hoban, which was a labour recruitment and hire company. She was to work 19 hours per week, and reduced her hours with KinCare to 10 per week. Her intention then was to work 19 hours per week for Hoban, and 20 hours per week with KinCare. 3. Hoban assigned the respondent to the appellant's branch at Five Dock, where she was employed as a teller. She commenced work on 7 March 2011. She was to undertake a training period of two weeks. During the first three days she was familiarising herself with "computer compliance and code of conduct …". She was under the supervision of a manager called Mary, and was using a desk in Mary's office. 4. On 10 March the manager was serving a customer in her office, and directed the respondent to one of three desks in an open area of the premises. The respondent was seated on a wheeled swivel chair at a computer at a desk. After somewhere between 1½ and 2½ hours, she stood up to take a break. In order to do so, she slid her chair back from the desk, and swivelled to the left; she stood and took a step with her right foot, and then another step with her left foot. She fell to the floor, and felt a sharp pain in her knee. She saw that her left foot had become entangled in "a bunch of wires" that were under the desk and of which she had previously been unaware. She was assisted to her feet by other employees. She suffered a fracture of the left knee, that required surgery on two occasions. She also suffered injury to her left shoulder. She saw a general practitioner and, the next day, attended at the Liverpool Hospital. She experienced pain, and in June 2011 underwent surgery to her knee. She continued to have pain, and had further surgery in November 2011. She did not work again until March 2012. During that time, she was in receipt of workers compensation payments from Hoban's workers compensation insurer. 5. In March 2012, she was given light work by Hoban, in its city office. Initially, she was working four hours a day, three days a week. That built up to eight hours a day, four days a week. 6. She continued to have pain in both the left knee and the left shoulder, and the left elbow. 7. In October 2012 Hoban terminated her light duties, and, the following month, her employment. She continued to receive workers compensation payments. 8. There was other evidence on the issue of damages to which I will come in due course. The proceedings in the District Court 1. The respondent and her daughter were the only witnesses to give oral evidence. There was a considerable volume of documentary medical evidence, to which I will come. I will deal first with the issues relevant to liability. liability 1. The respondent gave evidence in chief in accordance with the above outline. She was cross-examined by senior counsel for the appellant. From the transcript of the cross-examination, it can be seen that the matters in issue were relatively confined. It was put to the respondent that, as she approached the work area, she was able to see the work station, and the chair. She agreed that that was so. It was then put to her that she was also able to see the floor area where she was about to work, but she did not agree with that proposition. It was then put to her (having regard to her evidence that her fall commenced when she took the second step, with her left foot) that her foot did not become entangled in wires under the desk, and that, if it did become caught, it was on "a wire adjacent to" where she had been sitting. That question was followed by some discussion between senior counsel and the trial judge, as a result of which it was not answered. (However, the question is important in providing an understanding of the appellant's case as it was presented at trial.) 2. The transcript records the following: "Q. On the day of your accident when you went to sit down at the work station, the work station, the computer, the telephone, were all directly in front of you, weren't they? A. Yes. Q. If you wanted to, you could look at them to see how they were connected, couldn't you? A. I didn't notice that. Q. I understand that, but if you wanted to, you could-- A. Yeah. It was normal for-- Q. It is directly in front of you, wasn't it? …" It may be inferred that the purpose of this cross-examination was to lay a foundation for a submission that the injury was entirely, or partly, the respondent's own fault. 1. The cross-examination that followed appears to have been designed to suggest that, as the respondent was aware that there was a telephone and a computer on the desk, it was obvious to her that there would be cabling or wiring to connect them to power sources. In another question, it was suggested to her that cables were: "… clearly visible to you if you wanted to look?" Objection was taken to that question, and it was never answered. Overall, the cross-examination was directed to suggesting, as pleaded in the Defence, that the cabling or wiring was obvious, and that the respondent ought to have been aware of it – and that that appellant was therefore under no duty to warn her of the risk. 1. The only evidence with respect to liability tendered on behalf of the appellant was a photograph that had been shown to the respondent during the course of her cross-examination. The respondent agreed that it depicted a work area with a number of desks, at least one of which had a computer screen, and two of which did not. On the desk on which there was a computer screen, there was also a telephone. The respondent agreed that the photograph depicted the work area as "it was generally" at the time of her injury. (The photograph throws no light on the issues as the claim was litigated.) 2. Senior counsel for the appellant then addressed on the issue of liability. This was still on the first day of the trial. 3. He commenced his address by referring to two decisions of this Court, Rallis v Pang [2003] NSWCA 202 and Transpacific Industrial Solutions Pty Ltd v Phelps [2013] NSWCA 31; 230 IR 438. He drew attention to [26] of Rallis v Pang, in which this Court said: "… there was no evidence that the object upon which the claimant stepped and which caused her to lose her balance was debris from the first opponent's building work. Nor in my opinion, could it be inferred that it was. In this regard, the evidence did not identify with any precision where and how the accident occurred to enable the primary judge to determine what, if anything, could have been done to avoid it. His Honour expressed misgivings with respect to the imprecision of the evidence on these important issues and, in my opinion, he was clearly justified in so doing. In a case such as the present, in order to assert a duty of care to avoid the risk of injury that she sustained, the claimant was required to establish with a degree of precision not only the location but also the manner and cause of her fall. That precision was conspicuously absent in the present case." (italics added) 1. Senior counsel then argued, in effect, that the use of wires and cables in the workplace area is commonplace. So far as I can discern from the transcript, the argument put on behalf of the appellant was that there was nothing untoward about the location of the wires, and, accordingly, the appellant had not been shown to have been in breach of any duty it owed to the respondent. That, it seems, was said to be because any risk was obvious within the meaning of s 5F of the Civil Liability Act, the consequence of which is that s 5G applied. Section 5G enacts a presumption that a person who suffers injury as a result of the materialisation of an obvious risk is presumed to have been aware of that risk unless he or she proves on the balance of probabilities that he or she was not so aware. 2. There was a degree of debate between senior counsel and the trial judge, during the course of which his Honour expressed the view that it was "an inescapable conclusion" on the (unchallenged) evidence of the respondent that her foot had in fact become entangled in wiring that was under her desk. Senior counsel finished by saying: "I can't put it any higher than that, your Honour …" He then addressed, briefly, on contributory negligence. That concluded his address on liability. 1. During the course of senior counsel's address, no mention was made of any provision of the Civil Liability Act, including ss 5F and 5G which had been specifically pleaded in the Defence. 2. The court then adjourned overnight. The following morning the case for the respondent was briefly reopened in order to adduce evidence of hourly rates paid to the respondent by KinCare in her other part-time employment. Senior counsel for the respondent then addressed, and junior counsel for the appellant also addressed, on damages. At the conclusion of argument the trial judge proceeded to deliver judgment. The judgment 1. That part of the judgment that deals with liability is brief, as might be expected in a case in which the oral evidence (on liability) was given by one witness, and was concluded in the space of a day, and in which the issues that were presented were as narrow as has been set out above. 2. With respect to liability, the findings of the primary judge were as follows. He found the respondent to have been "a very impressive witness". (On one view, this finding may have been in the context of the respondent's damages evidence, but it is clear that his Honour accepted her as a truthful witness, and, indeed, he said that he "accept[ed] entirely [her] evidence" that she had not seen or been aware of the wires before her fall.) 3. Having recited the basic facts (most of which were not in dispute), he said: "The issue in this case is the claim made by [the appellant] of contributory negligence and in respect of that claim at para (a) of the defence, it is pleaded that if [the respondent] establishes that there were wires under her desk and that her left foot became tangled in those wires then [he paraphrased the pleading of contributory negligence in the defence]. The pleading follows with reference to ss 5F of the Civil Liability Act 2002 and 5G of the said Act. That is, that [the appellant], as per the cross-examination referred to earlier (that is the cross-examination of [the respondent]), must have been or should have been aware of the risk, the risk being so obvious. In respect of that matter, I accept entirely [the respondent's] evidence on this matter; that is, that she was not aware of the risk and that she had not seen the loose wiring … It seems obvious that with the cabling of any sort in a public place, such as a bank chamber where there are either customers and/or employees, that such cabling should be placed in a way where it is unlikely to become a trip hazard. On [the respondent's] evidence, it clearly was a trip hazard, and, on her evidence, she was not aware of the risk and it was not from her previous experience a matter that she would have gone and looked for either by looking under the desk or getting down on perhaps hands and knees in order to investigate what was the cabling/wiring to the work station she had been directed. … The one photograph tendered is, at best, poor quality, and the uncertainty of when the photograph was taken makes the court's task difficult in trying to establish what, in fact, happened or being able to assess the risk hazard. In absence of [the appellant] producing any evidence to identify the risk hazard as to whether or not it was obvious or to what extent it was obvious, and noting that there is no photograph from behind what would have been the seated position of [the respondent], the Court is unable to make such a finding, and, therefore, the claim under sections of contributory negligence [sic] … is not made out. It follows then that the claim that [the respondent] [makes] must be successful on the question of liability." (The reference in the third paragraph of the extract to the respondent's previous experience was a reference to evidence of her previous employment with the Commonwealth Bank.) 1. The remainder of the judgment deals with damages. The appeal 1. Notwithstanding the absence of any reference to the Civil Liability Act in the submissions on behalf of the appellant to the primary judge, or any invitation to him to consider any of its provisions, or the identification of any disputed issue under that Act, the grounds of appeal with respect to primary liability are almost exclusively (with two exceptions) directed to that subject. 2. The appellant complained that the primary judge failed to "address and determine" the issues of liability with reference to the provisions of the Civil Liability Act (Ground 1); that he failed to "find and articulate the relevant duty of care owed by the appellant to the respondent (Ground 3); that he failed to identify the "risk of harm" for the purposes of s 5B(1) (Ground 4); that he failed to determine whether that risk was foreseeable (in terms of s 5B(1)(a)) (Ground 5); that he failed to determine whether that risk was "not insignificant" within s 5B(1)(b) (Ground 6); that he erred in not determining whether the appellant had breached its duty of care, having regard to ss 5B(1)(c) and 5B(2) (Ground 7); and that he erred in failing to deal with the question of causation, in terms of s 5D (Ground 8). The remaining grounds in respect of liability complained that the primary judge misunderstood the nature of the appellant's defence (Ground 2); and assert error in failing to find contributory negligence on the part of the respondent (Ground 9). 3. It may here be noted that, while only ss 5F and 5G of the Civil Liability Act featured in the pleaded Defence, those sections do not feature in the complaints made in the Notice of Appeal. Those provisions of the Civil Liability Act that do feature in the grounds of appeal did not appear in the Defence, and were not the subject of any submissions to the primary judge. 4. When pressed at the conclusion of oral argument, senior counsel abandoned reliance on Ground 6 (whether the risk of harm was not insignificant) and Ground 8 (causation). The appellant's submissions 1. The appellant's written submissions are not always easy to follow. They assert that the primary judge misunderstood the nature of the case at trial and failed to deal with it in accordance with proper principles "including s 5B Civil Liability Act …"; and that he "incorrectly identified 'the issue in the case' as being [the appellant's] claim of contributory negligence", and to have "overlooked the question of primary negligence". The submissions went on: "13 The state of the evidence presented by [the respondent] made if [sic] difficult for a positive inference implying negligence on the part of [the appellant] to be established to the reasonable satisfaction of a judicial mind." They cited the penultimate sentence of the paragraph cited above from Rallis v Pang. 1. The written submissions then addressed, sequentially, duty of care, breach of duty, causation, and contributory negligence. (i) Duty of care 1. With respect to duty of care, it was submitted that the scope of an occupier's duty is "delimited by the expectation that users will exercise reasonable care for their own safety", and that: "17 Getting up from a chair in an office even in the presence of telephone or computer cords is a simple uncomplicated everyday activity. The sole cause of [the respondent's] fall was her failure to keep a reasonable look out for her own safety …" The submission was then made: "… In those circumstances no duty should be found to have been owed by [the appellant] to [the respondent]." 1. Reliance was placed on Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy; FBIS International Protective Services (Aust) Pty Ltd v Hennessy [2015] NSWCA 253, in which Leeming JA said (inter alia): "53 Finally, the scope of an occupier's duty is delimited by the expectation that users will exercise reasonable care for their own safety … [and, citing Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 234 CLR 330 at [45], per Gummow J] the expectation that a potential plaintiff will exercise reasonable care in a case such as the present goes not merely to the assessment of breach, but is a 'specific element contained, as a matter of law, in the scope of the … duty of care'." (internal citations omitted) 1. At pars 19-20 of the appellant's submissions it was put that the respondent was required to identify and articulate clearly "the risk of harm" which she alleged, and that the primary judge did not determine the risk of harm. However, it was postulated that: "… Here the 'risk of harm' would seem to be that [the respondent] would in getting up from the work station, trip and fall and suffer an injury as a result of getting her foot caught on some hazard within the premises." 1. The written submissions with respect to duty of care concluded with the observation that the respondent "led no evidence as to foreseeability", and that the primary judge made no finding in that respect; nor did he make any finding as to whether the risk of harm was "not insignificant" (a reference to s 5B(1)(b) of the Civil Liability Act). (ii) Breach of duty 1. It was observed that the primary judge made no express findings as to what the appellant ought to have done in response to the risk of harm. Complaint was made that the primary judge was required to, but did not, analyse "the conduct of a reasonable person, in all the circumstances of the case when faced with the relevant risk of harm". It was submitted that more specific evidence was "vital" to the respondent's case, and that she was required to establish "with some degree of particularity" that the appellant's practice with respect to cords or cables or cabling departed from "standard practice", and also what reasonable alternatives were available to eliminate or minimise the risk. It was submitted that the absence of such evidence was "fatal" to the respondent's case. (iii) Causation 1. The only submission of substance was that the primary judge made no express finding. (Reliance on this ground was abandoned at the conclusion of the appeal.) The respondent's submissions 1. The primary point made on behalf of the respondent is that the errors and omissions now alleged were not the subject of any argument at first instance. The primary judge was not invited to address any of the provisions of the Civil Liability Act upon which reliance is now placed. (Indeed, as stated above, no mention was made of the Civil Liability Act in senior counsel's address on liability.) No disputed issue arising under any provision of the Civil Liability Act was identified at trial. Counsel for the respondent referred to Coulton v Holcombe [1986] HCA 33; 162 CLR 1; Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418, in support of the (uncontentious) proposition that parties are bound by the conduct of their cases at trial, and that an appellate court will not ordinarily allow a new case to be made on appeal: see also v Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68; Water Board v Moustakas [1988] HCA 12; 180 CLR 491. 2. The written submissions of counsel then addressed, sequentially, the arguments advanced on behalf of the appellant, in light of the role of this Court pursuant to s 75A of the Supreme Court Act 1970 (NSW). Counsel contended: * that the risk of harm was a risk that loose wires not readily observable under a desk or work station could become entangled in an employee's feet and cause the employee to fall; * that the risk of harm was foreseeable; * that the risk of harm was not insignificant; * that amelioration of the risk was readily available and not burdensome. The wires could (and should) have been tied or redirected in a manner that would not allow them to be entangled in an employee's feet; * that the tangled wires were (and were plainly) the cause of the respondent's injuries. Resolution 1. It is noteworthy that the submissions on behalf of the appellant focus on an asserted failure of the primary judge to address the various provisions of the Civil Liability Act. Nowhere do they propose that, had any of those provisions been addressed, a different result would have eventuated. 2. I accept the submissions of the respondent. The primary judge determined liability on the basis of the specific issues that had been presented to him for determination. Those were very confined, and were, in truth, limited to whether the respondent's fall had, in fact, occurred as she said it had, and whether she was, or ought to have been, aware of the presence of the wiring such as to fix her with all, or some, of the responsibility for her injuries. The factual basis of those issues was determined by the primary judge's acceptance of her as "an impressive witness", whose evidence he believed. 3. Notwithstanding that, senior counsel on appeal contended that the primary judge ought, uninvited, to have entered into an exploration of questions that could, potentially (but did not) emerge from the Civil Liability Act. For reasons given below, I would reject that conclusion. 4. I do accept that, on one view of the judgment, in one respect, the primary judge may have misunderstood, or misstated, the nature of the appellant's case when he said that: "The issue in this case is the claim made by the [appellant] of contributory negligence …" 1. The appellant's primary position was that it had not been shown to have been negligent. I would, however, interpret the remark by the primary judge (given that the judgment was delivered extempore) as identification of what he perceived to be the "real", or the reasonably arguable, issue for determination. Such an interpretation would be in accordance with his unqualified acceptance of the respondent's evidence, and the realities of the respondent's case. Once it was accepted that her injury occurred as she asserted, a conclusion that the appellant was negligent was inevitable – or, to use the language of the primary judge in argument, "inescapable". 2. It is not an error for a trial judge to fail to address potential issues that do not materialise and are not presented for determination. The primary judge was entitled to proceed on the basis that, while the Civil Liability Act governed the respondent's claim, the appellant perceived no contentious issues arising therefrom. A trial judge determining a claim governed by the Civil Liability Act must always have in mind the provisions of that Act, and it is probably desirable that some express acknowledgment is made of that fact. However, when both parties are represented by senior counsel, and no mention is made of any specific provision of the Civil Liability Act, and no contested issue arising therefrom is identified, an omission on the part of the judge to refer to it is not indicative of error (Laresu Pty Ltd v Clark [2010] NSWCA 180 at [42] (Macfarlan JA, Tobias JA and Handley AJA agreeing); Woolworths Ltd v Ryder [2014] NSWCA 223, 87 NSWLR 593 at [60] (Sackville AJA, Basten and Ward JJA agreeing). 3. Identification of the issues in any trial is the role of counsel; it is the role of the trial judge to determine those issues. In this case, the only issues that were identified were whether the risk was obvious, such as either to absolve the appellant of liability, or to fix the respondent with a proportion of responsibility for her own injury. It is quite inappropriate now to seek to challenge the findings of the primary judge by reference to statutory provisions to which counsel for the appellant addressed no argument and, accordingly, counsel for the respondent addressed no counter argument. 4. That, in my opinion, is sufficient to dispose of the appeal against the finding of liability. 5. In any event, had the matters now raised been raised before the primary judge, the result on liability would inevitably have been the same. It may be noted in passing that, even on appeal, no specific issue arising under the Civil Liability Act was identified. The complaint that was made was of failure by the primary judge to address issues that might have arisen. No submission was made that the outcome would have been different. 6. The appellant's proposition that no duty should be found to have been owed by the appellant to the respondent is simply untenable. Whether as occupier, or quasi-employer, the appellant was under such a duty. That duty required it to take reasonable care to avoid foreseeable risk of harm to her, on the assumption that she was taking reasonable care for her own safety: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479. 7. The passage cited from Rallis v Pang does not assist the appellant. There was here no uncertainty or lack of precision in the evidence about the location of the respondent's fall, nor the manner or cause of the fall. Her foot became entangled in wires, of which she was unaware, that were left under, or near, the desk at which she was directed to work, causing her to fall. Since the abandonment of reliance on Ground 8, causation is no longer an issue. 8. Section 5B of the Civil Liability Act provides as follows: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm." 1. For the purposes of ss 5B(1)(a)-(c), a tangle of wires under a desk, not clearly visible on ordinary approach, creates a risk, and a risk which ought to have been known to the appellant. The risk scarcely needs to be identified. It was that an employee's foot might become entangled in the wires and the employee might trip. The risk was not insignificant; and, in the circumstances, a reasonable person in the position of the appellant would have taken precautions to avoid the risk. The appropriate precautions were readily available and not burdensome: they were to tie the wires and fix them in such a way that they did not create a trip hazard. 2. For the purposes of sub-s (2), the probability that the injury would occur was high; the harm that could be caused was likely to be serious; the burden of taking precautions was, as stated above, slight; there is no social utility in having the wires in the condition that they were. 3. The appellant's written submissions that the respondent led no evidence on foreseeability, and that the primary judge made no finding in relation to foreseeability, is irrelevant. This was not a case that called for evidence of foreseeability. It is a matter of common knowledge that entangled wires on a floor area can (and do) create a trip hazard. That is particularly so where, as here, they were concealed or obscured by being located under a desk. 4. The appellant's submission as to breach of duty appears to focus on what is said to be a deficiency in the evidence called on behalf of the respondent. The submission was: "33 More specific evidence was vital to [the respondent's] case. She was required to establish with some degree of particularity that not only did [the appellant's] practice in relation to cords, cables or cabling depart from standard practice but also what reasonable alternatives if any, could have been put in place to eliminate or minimise the risk … 34 The absence of this evidence was fatal to [the respondent's] case … " 1. I do not agree. The issue is not the appellant's "practice" relative to "standard practice". The issue is what occurred on this occasion, what risk of harm was created, and what could have been done to avert the materialisation of the risks. This has been dealt with above. 2. I would reject all grounds of appeal going to primary liability. Contributory negligence 1. Section 5R of the Civil Liability Act is as follows: "5R Standard of contributory negligence (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." 1. The appellant cited the decision of this Court in Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139 at [99], as follows: "Assuming that the requirement that people should take responsibility for their own lives and safety is now reflected in s 5R [of the Civil Liability Act] … Thus, the probability that harm would occur if care were not taken and the likely seriousness of the harm would operate differentially with respect to the driver of the forklift and the pedestrian, but with the same result. That is, no distinction is made between the fact that from one perspective the driver is in control of a vehicle that could cause serious harm to a pedestrian, whilst from the perspective of the pedestrian, it was the likelihood of serious harm which was to be considered. If the plaintiff were aware, or ought to have been aware, of the presence of a large forklift operating in the area and if the forklift driver were aware, or should have been aware, of the likely presence of pedestrians, and if each were equally careless, liability should be shared equally." (italics added) The submission then went on: "42 [The respondent's] failure to keep a proper lookout for her own safety and observe the cords or cables at any time before she fell must be at least equal to any negligence of [the appellant] in also failing to see the cords or cables." 1. It was submitted that the primary judge ought to have found contributory negligence of 50 per cent or greater. Resolution 1. Boral Bricks was an entirely different case. The plaintiff was injured on a large industrial site where he was a pedestrian. He was struck from behind by a forklift truck. The plaintiff had been on the site for some time, and had, on three occasions, seen the forklift, both laden with bricks and unladen. He had the impression on at least one occasion that it was being driven erratically and at excessive speed. In that context, this Court (by majority) apportioned 30 per cent of liability for the injury to the plaintiff. 2. The critical part of the paragraph of Boral Bricks upon which the appellant relies is the last sentence of the paragraph extracted above concerning apportionment. It is to be observed that the conclusion that "liability should be shared equally" depends upon three specific findings of fact – awareness (or constructive awareness) on the part of the tortfeasor of the presence of the plaintiff in the vicinity; awareness (or constructive awareness) on the part of the injured person of the presence of the defendant in the vicinity; and, importantly, assessment of the carelessness of each as being equal. The result in Boral Bricks turned upon its own facts. 3. In this case, the primary judge proceeded on the basis (correctly, in my opinion) that the appellant at least ought to have been aware of the presence of the wires. Although there is no express finding to that effect, such a conclusion was, in the circumstances, clearly implicit in the extempore judgment. No suggestion was made to the trial judge that such a finding should not be made. 4. By contrast, the primary judge accepted the respondent's evidence that she had not seen the loose wiring. I would reject any suggestion that, in the circumstances, she ought to have known of the presence of the wires. She was directed to work at a particular desk; there was no indication to her that there were wires under the desk; she had no reason to suppose that there were, and no reason to examine the floor under the desk prior to taking up her position. She was entitled to proceed on the assumption that the work space to which she was directed was suitable for the purpose. Not surprisingly, the appellant did not adduce evidence to establish that tangled wired under desks in the office were so placed as to be apparent on an ordinary walking approach. 5. I would reject Ground 9 of the appeal. DAMAGES 1. The primary judge awarded the respondent damages as follows: � non-economic loss $103,000 � past loss of wages $158,847 � future loss of wages $169,377.05 � superannuation (past) $17,473 � out of pocket expenses (past) $67,209 � medical expenses (future) $30,000 � superannuation (future) $22,018 � domestic services (past) $57,564 � domestic services (future) $70,044 � Fox v Wood ([1981] HCA 41; 148 CLR 438) $18,000 TOTAL $713.532.05 1. The appellant contends that: * the award for non-economic loss was manifestly excessive; * the award for past loss of wages was manifestly excessive, and no or inadequate reasons were given; * the award for future loss of wages was manifestly excessive, and no or inadequate reasons were given; * the award for future medical expenses was manifestly excessive; * the award for past domestic services was manifestly excessive, and no or inadequate reasons were given; * the award for future domestic services was manifestly excessive, and no or inadequate reasons were given. 1. The outcome of this appeal depends, to a very large extent, upon the manner in which the proceedings were conducted by the parties at trial, which can fairly be described as haphazard. 2. An Amended Statement of Particulars was filed in August 2014. (It is necessary to note the particulars, because they formed the basis of the appellant's submissions at trial.) It was claimed that the respondent had been earning $23 per hour for a 19 hour week when working with Hoban, and, additionally, $21.50 per hour at KinCare, working, as at date of injury, 10 hours per week. Those figures are not entirely consistent with the evidence as it emerged. The total of the respondent's earnings (as particularised) would, on those figures, have been $651 per week. That was a gross figure. In the trial, it was assumed that the net figure would have been approximately $585 per week. 3. In the Amended Statement of Particulars, the respondent had itemised anxiety and depression, disturbed family relationships and increased moodiness and irritability as among her disabilities. The evidence in support of this claim was deficient. The respondent said, in answer to a question about her nursing course, that she could not finish it because of her "anxiety and depression", and that, since the accident, she had been "very depressed and anxiety". She said that she had had "a few treatments" with a psychologist. She had taken some medication, but had not found it helpful. 4. The respondent's daughter said that, before the accident, the respondent was: "… a very bubbly, social lady. She liked doing all sorts of social activities. She loved going for walks, visiting her mum, spending time with her sisters, with her family, her sister-in-laws. She was always very happy and very social." She said that after the accident, the respondent had lost self-confidence, was not as happy and bubbly, had self-doubt, and would suffer depressive moods. 1. Notwithstanding this, no medical, psychiatric or psychological evidence was adduced. The primary judge felt unable, on the state of the evidence, to find a causal connection between the respondent's anxiety and depression and the accident. This was said to be of some significance in the assessment of economic loss as well as non-economic loss because of the respondent's evidence that her failure to complete the nursing course was attributable to the anxiety and depression. There was no application for leave to cross-appeal calling into question the finding concerning a causal connection between the depressive condition and the accident. 2. The transcript of the trial reveals that both parties provided the trial judge with a schedule of damages, but neither has been able to be found. All that was available for this Court was a single sheet that was identified as the appellant's submission at trial with respect to past and future economic loss. Some of what was contained in the schedules can be gleaned from the oral submissions. 3. The manner in which the medical evidence was presented was also not conducive to proper resolution of the issues. In that respect, I make the following observations. Medical evidence 1. The medical evidence was put before the trial judge in two large bundles, one tendered by each party. The respondent's bundle ran to 90 pages. It included no fewer than 27 reports of Dr Matthew Giblin (the respondent's treating orthopaedic surgeon), three reports of Dr Peter Giblin (also an orthopaedic surgeon, who was qualified for medico-legal purposes), five reports of the respondent's general practitioner, Dr Letran, and various other reports and documents. Many of Dr Matthew Giblin's reports were purely formal, for example, reports to the Workers Compensation Insurer that the surgery had been conducted. In addition, there were numerous radiological reports, clinical notes of general practitioners, and correspondence between the respondent's general practitioner and the Workers Compensation Insurer, and a four page document that appears to be part of an operation report containing charts and indecipherable images. 2. The medical evidence tendered on behalf of the appellant was in an equally unsatisfactory state. It was tendered as a bundle of "clinical records of Wilson Road Clinic" (a medical practice the respondent attended). That bundle alone runs to 280 pages. The first 59 pages appear to be a computer printout of the respondent's attendances at the Wilson Road Clinic from July 2010 (almost a year before the respondent's injury) to May 2014. The next 28 pages also appear to be a computer printout, but in a form that is incomprehensible without explanation. These are followed by a series of reports on the letterhead of an organisation called "Insight Services Group" addressed to the respondent's general practitioner, on "Functional Assessment". There is a series of WorkCover certificates; and numerous reports of the Wilson Road Clinic. There is a letter addressed to one of the respondent's treating general practitioners, serving a "direction for production" for workers compensation proceedings, and a copy of the direction. 3. By the time this bundle was put together, and certainly by the time it was tendered at the conclusion of the evidence, it must have been plain to all concerned that, to the extent that there was any medical issue in the proceedings, it was narrowly confined. No attempt was made by the legal representatives of either of the parties to identify the issues and to select medical evidence material to those issues. Instead, every medical record and document was photocopied and presented, in two bundles, to the trial judge. 4. What was the trial judge to do with this material? Buried in the morass were a small number of relevant reports to which reference was made during the course of addresses. The vast bulk of the material was simply irrelevant, and, accordingly, no reference was made to it. 5. Yet again, it is necessary to observe that counsel are under a duty to present cases in such a way as will assist the trial judge to arrive at the correct result. Bombardment with hundreds of pages of irrelevant material does not achieve that. 6. The relevant medical evidence appears to be the following. The respondent was examined, apparently for medico-legal purposes, by Dr James Bodel, an orthopaedic surgeon, as well as Dr Peter Giblin. Dr Bodell's report of 31 January 2013 was relevantly as follows: "This lady was able to return to work to modified duties six hours a day until the agency was unable to offer her any further work. She has not been able to return to her nursing related duties. She should be capable of permanently modified duties that avoid kneeling, squatting or climbing or strenuous and repetitive tasks with the left upper limp [sic – limb] if they are available to her. … Her prognosis remains a little guarded because of the ongoing pathology in the injured areas." 1. Two years later, on 14 January 2015, Dr Bodel again reported that the respondent's prognosis remained "guarded". In response to a specific question concerning her need for domestic assistance, he replied: "She does require domestic assistance for heavy household maintenance and cleaning activities at the rate of two to three hours domestic assistance per week indefinitely as a consequence of her ongoing injury." 1. Dr Peter Giblin reported, on 2 June 2014: "Her condition is stable and her general prognosis is good. She will always have some soft tissue symptoms in the left knee and left shoulder with permanent physical restriction. Specifically, she is permanently unfit to use her left lower extremity for repetitious kneeling and squatting, pivoting and twisting, stair or ladder climbing, working at heights or labouring work. She is unfit to use her left upper extremity for heavy repetitious pushing, pulling, lifting and twisting, load bearing or operating heavy vibrating machinery or recurrent activities above shoulder height. …" 1. In the same report, Dr Giblin commented on the prospect of future surgery. He said: "Further surgery is not mandatory at this juncture but cannot be excluded into the longer term. Surgical considerations may include, but not be limited to, a left total knee replacement. The all up hospital medical and ancillary costs would be in the order of $25,000 barring any complications and the period of time off work in terms of a light job would be at least 3 months." 1. With respect to her need for domestic support he considered that she: "… merits consideration for some degree of physical support in terms of her heavy domestic responsibilities." 1. On 19 January 2015, Dr Giblin again commented on the prospects of future surgery, he said: "… surgical considerations are not mandatory at this juncture, but it is a reasonable clinical expectation that, based upon deterioration of her left knee, over a period of a generation, a left knee replacement operation may be required. Should that occur then she will require consideration for increased physical support for her domestic responsibilities." 1. The respondent's general practitioner, Dr Letran, also commented a number of times on the respondent's need for domestic assistance. On 10 March 2013, and again on 30 November 2014, he expressed the view that the respondent did not require domestic assistance at the time of writing. 2. The appellant tendered two medical reports (apart from the bundle of Wilson Road Clinic documents); one was a report by Dr John Stephen, an orthopaedic surgeon, dated 15 September 2014; the second was a report of Dr Paul Miniter, also an orthopaedic surgeon, dated 15 October 2012. Dr Stephen wrote: "[The respondent] is physically quite fit to engage in her normal domestic duties. She would have required assistance until approximately November of 2011 as regards the heavier aspects of housework. It is not possible for me to estimate how many hours of assistance she would have required in the past, but they would have been in the vicinity of two hours or thereabouts per day for the first three months, tapering off thereafter." In response to a specific question, he said he had no suggestions as to any further medical treatment, and that the respondent had made "an excellent recovery". 1. Despite the huge volume of medical material, and despite the injuries particularised in the Statement of Claim as including depression and anxiety, other than passing references in the general practitioner's records, no evidence was provided concerning the respondent's complaints in this respect. Economic loss 1. The evidence in support of the respondent's wage loss claim, both past and future, was in a highly unsatisfactory state. The respondent gave evidence that she was earning $23 per hour at KinCare, working 10 hours per week – a total of $230 per week. She was working 19 hours per week for the appellant, but the only evidence of her remuneration from that work was from a document, unidentified, showing that her workers compensation payments were $748.03 gross per week. (The respondent was paid workers compensation over a period of almost four years; the document does not reveal at what time that was the relevant rate.) If that represented her income from 19 hours per week, her total weekly earnings, immediately preceding the injury, were $987.03. 2. The respondent's intention, pre-injury, had been to work 20 hours per week with KinCare, 19 with the appellant. 3. The respondent returned to work with Hoban in March 2012, on light duties. At the time of her employment was terminated, in October 2012, she was working 32 hours per week. There was evidence that her total earnings during that time were $11,713. Economic loss from date of injury to date of trial 1. In his oral submissions at trial with respect to the respondent's wage loss to the date of trial, senior counsel for the respondent made extensive reference to the schedule of damages which he had provided, and which is not now available. He relied on the respondent's evidence that she had intended to increase her work hours to 39 per week, and pointed out that her personal circumstances were conducive to the achievement of that aim: her children were "off her hands", she had exhibited a considerable work ethic in the past, and she had an interest in working in aged care. 2. In his address, senior counsel relied upon a document called a "payroll report" which, although it appears to have been treated as being in evidence, was not given an exhibit number and is not to be found in the appeal papers. There appears to be no dispute that it showed that the respondent was paid a total of $93,950 by way of workers compensation until those payments ceased in December 2014. Just what inferences were sought to be drawn from that evidence is not clear. 3. Ultimately, senior counsel for the respondent proposed that her economic loss to date of trial ought to be calculated on the basis of earnings of $800 net per week, from which should be deducted the $11,713 representing her actual earnings when she resumed work with Hoban. That would result in an overall wage loss to date of trial of $158,847. (That was the amount in fact awarded.) 4. The submissions made by junior counsel on behalf of the appellant took an entirely different approach. That approach was based upon the 2014 Amended Statement of Particulars, and made no reference to the evidence. (That may have been because junior counsel had not been present during the evidentiary phase of the proceedings, and senior counsel who had then been present was not present on the second day when submissions on damages were made. As I understand it, daily transcripts are not usually available in the District Court.) The difficulty with the appellant's approach was that the evidence was not in accordance with what had been particularised. 5. In respect of past economic loss, the submission on behalf of the appellant was that a starting point of $585 ought to be adopted (based on the Statement of Particulars); but that this ought to be reduced by 25 per cent to represent the respondent's actual earnings in the time she returned to work, yielding a result of $93,453. 6. The primary judge found that the respondent was fit for sedentary work, but would not be able to do the nursing work she had previously done, and would be disadvantaged in the labour market by her limited formal education. He noted evidence she had given that, when she applied for the kind of work she had done, she was asked about her disabilities, and was then unsuccessful in her applications. The primary judge adopted the approach proposed by senior counsel for the respondent. He found as a fact that the respondent "would have continued to work up to and including 40 hours per week". He then said: "past economic expense – and using the formula put forward by [senior counsel] – $93,950 of moneys paid by the workers compensation insurer, and unpaid moneys of $64,897; a total of $158,847 for that past wage loss." 1. On appeal, in written submissions on behalf of the appellant, senior counsel recounted some of the factual background, and observed that, in 23 years prior to the accident, the respondent had never worked full time, and had never worked more than 29 hours per week. He then submitted: "It is entirely unclear how the trial judge calculated past economic loss. He gave no reasons or no adequate reasons to understand his findings." 1. He complained that the allowance of $158,847 equated to $742.27 net per week, which was almost 30 per cent more than had been claimed in the Amended Statement of Particulars. Resolution 1. One difficulty with the appellant's approach is that it is not remotely based on the evidence. The proposed reduction of 25 per cent (amounting to in excess of $30,000), for example, significantly exceeds the amount recorded as actual earnings on the "payroll report". And the submission makes no allowance for the potential of the respondent to have increased her work hours. 2. There is, however, some substance in the appellant's complaint. The reasons are inadequate and do not explain the basis upon which the final figure was reached. It was, however, perfectly reasonable for the primary judge to place little weight on the appellant's submissions, which were acknowledged to be based on a Statement of Particulars, and not on evidence, and were made by counsel who had not been present when evidence was given. To the extent that the primary judge's reasons can be discerned, they adopt the evidentiary references of senior counsel for the respondent. 3. The finding that the respondent would have worked 40 hours per week suffers from deficiencies. First, the respondent herself gave evidence of an intention to increase her hours to 39 per week. Second, there was no indication of when she could have expected to achieve that goal, and the respondent gave no evidence of when she would have hoped to do so. Certainly, an allowance for 40 hours per week (or even 39) could not be dated from the date of the accident, because the respondent was not then working those hours and there was no evidence of any immediate prospect that she would do so. 4. The figure put forward (on appeal) by senior counsel for the respondent was based on the respondent working 39 hours per week, virtually from the date of the accident. There was no basis for a finding that the respondent's wage loss should be calculated on a 39 hour working week from the date of the accident, when she was in fact working 29 hours per week, and there was no evidence of any imminent, or even medium term, increase in those hours. 5. It was, however, open to the primary judge to accept that, at some point before April 2015 (the date of trial), the respondent would have increased her work hours. She was committed to work in aged care. She had taken steps to retrain, her children were adults, and she plainly had a strong work ethic. Nothing has been advanced on behalf of the appellant to disturb the general finding that the respondent's past losses were not confined to the 29 hours per week that she was working as at the date of injury. 6. It is, it my opinion, necessary that the allowance made for the respondent's past wage loss be recalculated. The evidence upon which that recalculation should be made is sparse, but, in my opinion, allows the following. Prior to her injury the respondent was earning $978 per week, presumably a gross figure. That needs to be reduced to take account of taxation. In the absence of evidence, I would estimate the net figure to be $700 per week. The respondent should be allowed that amount for a period of 2 years from the date of injury, yielding a figure of $73,000. Thereafter, to the date of trial (2 years and 9 weeks) she should be allowed $800 per week (net), yielding a figure of $90,400, and a total net loss of $163,400. From that must be deducted the $11,713 which she in fact earned. The net result is an allowance of past economic loss of $151,287. 7. The figure allowed for superannuation must be adjusted accordingly. There is no reason not to retain 11 per cent as the basis for calculation. That yields an amount of $16,641. Economic loss: future 1. Assessment of the respondent's loss of earning capacity in the future essentially depended upon two necessary factual findings. The first was what course the respondent's career would, absent injury, probably have taken. The second was her residual earning capacity. The respondent's evidence was clear. She sought to embark upon a career as a nurse's aide, and to increase her work hours to 39 per week. The primary judge plainly accepted that she would do so. The respondent's evidence was that she could not complete her assistant nurse's course because of anxiety and depression. The evidence adduced on her behalf was insufficient to establish a causal connection between the condition and the respondent's injury. It was also clear on her evidence and the medical evidence that her physical limitations would have precluded her working in that area. 2. There was evidence from a "vocational assessor" that the average national earnings of a bank worker are $1,180 gross per week, $943 net per week as at December 2014. 3. The work capacity of the respondent was explored in medical reports. In reports dated 31 January 2013 and 14 January 2015 Dr Bodel assessed the respondent's prognosis as "guarded". He said: "She should be capable of permanently modified duties that avoid kneeling, squatting or climbing or strenuous and repetitive tasks with the left upper limp [sic – limb] if they are available to her." 1. In the 2015 report, he said that, based on clinical presentation, she should be able to work at least 20 hours per week in permanently modified duties. He considered that "banking type of work" would be more appropriate than nursing work. 2. Dr Peter Giblin's prognosis (2 June 2014) was: "Her condition is stable and her general prognosis is good. She will always have some soft tissue symptoms in the left knee and left shoulder with permanent physical restriction. Specifically, she is permanently unfit to use her left lower extremity for repetitious kneeling and squatting, pivoting and twisting, stair or ladder climbing, working at heights or labouring work. She is unfit to use her left upper extremity for heavy repetitious pushing, pulling, lifting and twisting, load bearing or operating heavy vibrating machinery or recurrent activities above shoulder height." 1. On behalf of the appellant, two reports of orthopaedic surgeons were tendered. The first, of Dr Paul Miniter, dated 15 October 2012 expressed the opinion that the appellant could return to pre-injury duties forthwith. A report of Dr John Stephen of 15 September 2014 expressed a similar view. 2. None of the doctors gave oral evidence. The primary judge preferred the opinions of Drs Giblin (Peter) and Bodel. With respect to future economic loss, the primary judge found that the respondent was "fit for sedentary work" but would be restricted physically from undertaking the nursing work; and he found that, because of her limited education, her other opportunities would be limited. He noted evidence given by the respondent that she had been unsuccessful in her applications for employment with banks because of her obligation to disclose her injury and disabilities. He was satisfied that she would have difficulty in the open labour market. 3. In his submissions senior counsel for the respondent invited the primary judge to take a figure of $500 per week as representing her future wage loss. He did this by reference to the evidence of average earnings of bank employees, and the opinions expressed by Drs Bodel and Giblin that the respondent could work 20 hours per week. 4. Counsel for the appellant again worked on the figures in the Amended Statement of Particulars, and started with an earnings figure of $600 net per week. He proposed that the respondent's loss was about a quarter of that, giving a loss of $150 per week, reduced by 15 per cent for vicissitudes, adjusted by application of the agreed multiplier. That would give a figure of $67,485. He proposed to allow for superannuation at 12 per cent, a figure of $8,098. The primary judge adopted a figure of $400 per week, and reduced that by 20 per cent to allow for vicissitudes. Although he did not quantify the outcome, it is in the near vicinity of $170,000. The only reason he gave for increasing the deduction for vicissitudes from the conventional 15 per cent to 20 per cent was the uncertainty of whether the respondent would gain full time employment, or employment for greater hours than she had had at Hoban during the short time that she had worked post-injury. There is no cross-appeal, or application for leave to cross-appeal, against that finding. 5. The first complaint made on behalf of the appellant is that the primary judge's reasons were inadequate. (That complaint is valid.) 6. The real substance of the complaint against this award is that it "was entirely against the weight of the evidence". That, it was submitted, was because the primary judge found that the respondent was fit for sedentary work, and that, essentially, was the work that she had done in the past. 7. On behalf of the appellant it was also submitted that, because the primary judge felt unable to find that the respondent's anxiety and depression were causally related to the injury, and that her evidence was that it was anxiety and depression that prevented her from completing her nursing course, she ought not be awarded damages for that loss. Resolution 1. I see no reason to disturb the findings of the primary judge. The simple answer to the last argument of the appellant (concerning the loss of the respondent's nursing career opportunities) is that the loss of the nursing career was not the basis of the award of damages. The damages for future economic loss were calculated on the basis of the evidence of potential earnings in banking. There is, in fact, only minimal difference (so far as the evidence goes) between the two. There was no reason to suppose that, if she could not undertake the care work she had begun, the respondent would not have increased her hours with a banking organisation. 2. Although I do accept that the primary judge's reasons were inadequate, examination of the evidence shows that the result was well within his discretion. The key finding was that respondent's loss was $400 per week. Given the opinions of Drs Bodel and Giblin, that finding was well open. Moreover, it was proper to take into account the realities of the employment market. The respondent (at date of trial) was 53 years of age, had been out of the workforce for some years, had limited education, and was obliged to disclose to any prospective employer her history of injury. These circumstances all told against her securing employment. Even if she had, as was contended on behalf of the appellant, a 75 per cent residual working capacity, she did not have a 75 per cent residual earning capacity. At least two of the circumstances that impacted on her earning capacity (as distinct from her work capacity) – her prolonged absence from the workforce and her physical disability – were the direct consequence of the injury she sustained as a result of the appellant's negligence. In my opinion, the quantification of her loss of $400 per week was modest, and the least that could reasonably have been awarded. 3. There is a potential question concerning the award of future loss of superannuation, which the primary judge calculated based on 13 per cent. The submissions, at trial, (for the appellant) had been for superannuation in the future to be calculated at 12 per cent of earnings. No ground of appeal challenges the manner in which the primary judge went about the calculation of superannuation. While senior counsel for the respondent, at trial, had proposed 13 per cent, no issue was taken in that respect, by junior counsel, who, immediately after the submission was made, was given a right of reply. 4. I would, accordingly, also not disturb the award of damages representing loss of superannuation into the future. Domestic assistance 1. The respondent's claim for an allowance for damages for domestic assistance fell into two categories. The first was the assistance she had been given, by family members, to the date of trial. This assistance had been rendered gratuitously, and accordingly, came within s 15 of the Civil Liability Act. 2. The second category of assistance was that anticipated to be required in the future. The respondent's claim was for such assistance to be provided at commercial rates. 3. The relevant evidence was as follows. The respondent lives in a large (five bedroom) house in the western suburbs of Sydney. She had, prior to her injury, been responsible for the housework, and for the gardening. Her husband had done at least some of the cooking. 4. After the accident, the respondent was unable to continue with the heavy housework, and her two sons, who were still living at home, took on that role. Her daughter, who had moved out of home previously, came back once a week to do some cleaning. Her husband retained an employee to do some of the gardening. The respondent estimated that members of her family spent 15 hours per week doing household chores that she had previously done. The respondent was then asked: "So for the future, would you prefer to have paid or unpaid care to do this housework that you can't do?" The respondent answered that she would prefer to have paid care. 1. The respondent's daughter (Saima Haq) also gave evidence. She said that she had married in 2005 and had moved out of home, but returned in 2011. This was because the respondent "really needed my help at that time". She remained living in the family home until the end of 2012. 2. Ms Haq estimated that, during the time she lived in the family home, she spent two hours per weekday attending to household duties, and three to four hours on weekends. Other members of the family also assisted. 3. After she moved out of the home in 2012, Ms Haq continued to visit often, for the purposes of providing assistance. 4. The respondent assented to a proposition, put to her in cross-examination, that by April 2014 she was: "… doing all the domestic tasks at home, inside the house that is, at a modified pace, so you did it a bit more slowly, and that where you needed particular help on heavier things, you got that from your husband and children when required?" 1. There was conflicting medical evidence on the subject. Dr Bodel, in his January 2015 report, said: "She does require domestic assistance for heavy household maintenance and cleaning activities at the rate of two to three hours domestic assistance per week indefinitely as a consequence of her ongoing injury." Dr Peter Giblin, in a report of June 2014, said: "Therefore she merits consideration for some degree of physical support in terms of her heavy domestic responsibilities." 1. The respondent's treating general practitioner, Dr Letran, on two occasions, expressed the view that, at the time of writing the reports (March 2013 and November 2014) that she did not require domestic assistance. 2. Dr Stephen considered the respondent to be "physically quite fit to engage in her normal domestic duties" although he acknowledged that she would have required assistance until approximately November 2011 for heavier aspects of housework. Domestic assistance to date of trial 1. As mentioned above, the damages claimed by the respondent were for gratuitous attendant care services within the meaning of s 15 of the Civil Liability Act. That section precludes such an award unless the court is satisfied that: * there was a reasonable need for the services to be provided; and * the need arose solely because the injury to which the damages relate; and * the services would not have been provided to the claimant but for the injury. Further, sub-s (3) precludes an award if the services are provided for less than six hours per week and for less than six months. 1. The submissions made on behalf of the appellant at trial expressly conceded an allowance of six hours per week, and did not seek to challenge that they had been provided for in excess of six months. Counsel submitted that an award for that time should be made and calculated on an hourly rate of $22. 2. On behalf of the respondent a figure of $27 per hour was proposed. No submission was made as to the number of hours in respect of which the respondent was entitled to compensation. 3. The primary judge allowed 10 hours per week, at $27 per hour, for 4.1 years, an amount of $57,564. 4. The appellant's submission on appeal was that the allowance for past domestic assistance ought to have been made for six hours per week and to November 2011, with nothing thereafter. That was quite contrary to the position taken at trial, which expressly conceded an allowance to the date of trial. Resolution 1. It is a matter of some puzzlement that medical practitioners express (and are asked to express) views as to the extent to which an injured person needs domestic assistance. Once a medical practitioner has identified the nature and cause of an injury or disability, the impact of that injury or disability will depend upon a range of factors outside the ordinary expertise of medical practitioners. In this case, the evidence of the respondent and her daughter, accepted by the primary judge, far outweighs the contrary opinions of Dr Letran and Dr Stephen, and is, in any event, supported by Drs Bodel and Giblin, whose evidence the primary judge preferred. 2. The appellant's present position is flawed in two respects. First, it ought not to be allowed to retreat from the position it took at trial. Second, in any event, it is inconsistent with the unchallenged evidence of the respondent's daughter. Her assessment was that, during the time she lived with her parents, until the end of 2012, she alone spent 13 to 14 hours per week attending to household duties. She was not cross-examined on this evidence. That did not take account of assistance provided by the respondent's husband and sons. 3. No challenge was made to the rate of $27 per hour by reference to which the award was calculated. 4. I would therefore not disturb the award of damages for past domestic services. Future 1. The primary judge allowed two hours per week, at an agreed rate of $40, for 35 years, a total of $70,044. That was consistent with the position adopted on behalf of the appellant at trial, although its preferred option was for an allowance for two hours per fortnight. 2. It was expressly submitted by counsel for the appellant that an appropriate award for domestic assistance post trial and into the future was an allowance at the agreed commercial rate of $40 per hour for two hours per fortnight. What it called its "fall back position" was two hours per week. No limitation was placed on the period over which the award should be made. 3. The position taken on appeal was that no allowance should have been made for future domestic assistance. 4. Again, I would not permit the appellant to retreat from the clear position it adopted at trial. I would therefore not disturb the award made for future domestic assistance. That makes it unnecessary to explore the adequacy of the evidence in this respect, that being limited to the respondent's expressed preference for paid assistance: see Sampco Pty Ltd v Wurth [2015] NSWCA 117 at [105]. Non-economic loss 1. Pursuant to s 16(1) of the Civil Liability Act, no damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15 per cent of a (notional) most extreme case. The primary judge assessed the respondent's case as representing 29 per cent of a most extreme case. 2. At trial, counsel for the appellant proposed a finding of non-economic loss at 25 per cent. The only reason advanced for that was that the surgery had been successful, and the respondent had "a fairly good prognosis". 3. Senior counsel for the respondent proposed a finding of 33 per cent. 4. The submissions on appeal on behalf of the appellant were terse. They were: "In view of his findings as to [the respondent's] work capacity, her need for domestic assistance and the medical evidence generally this finding was manifestly excessive." Resolution 1. No attempt was made to advance any argument in support of that bold proposition. I would reject it as tersely as it was advanced. Future medical expenses 1. There was some evidence of a potential need for the respondent to undergo further surgery. This was somewhat limited. Dr Peter Giblin, in June 2014, said: "Further surgery is not mandatory at this juncture but cannot be excluded into the longer term. Surgical considerations may include, but not be limited to, a left total knee replacement." 1. In a report of January 2015 he again said that further surgery was not "mandatory at this juncture", but added: "… but it is a reasonable clinical expectation that, based upon deterioration of her left knee, over a period of a generation [sic – ? degeneration], a left knee replacement operation may be required." Dr Giblin quantified the anticipated cost of surgery as $25,000 "barring any complications". He considered that, if she did undergo surgery, the respondent would require at least 3 months off work. 1. Neither party addressed any oral submissions at trial to this issue. 2. The primary judge allowed the full amount of $25,000 for the surgery, and added $5,000 for future medications, giving a total for future out of pocket expenses of $30,000. It is to be noted that although the primary judge allowed the full amount estimated as the cost of the surgery, together with an allowance for medication (both undiscounted), no component was included to represent lost earnings. 3. The only submission made on appeal in respect of this award was that, if accepted, the cost ought to be very significantly discounted to reflect the possibility that the respondent would never undergo further surgery, and the delay in its performance. 4. Counsel for the respondent accepted that some discount was appropriate. During the hearing of the appeal, he accepted that a sum of $10,000 would adequately compensate the respondent against the prospect of future surgery. 5. In my opinion, that concession is properly made, I would reduce the respondent's award for future surgery to $10,000. 6. The outcome of these conclusions is that the respondent's award of damages for past loss of wages should be reduced by $7,560, from $158,847 to $151,287; there would be a consequential reduction of $832 in respect of past superannuation; the award for future medical expenses would be reduced by $20,000, from $30,000 to $10,000. The total award of damages would be $685,494.05. I propose orders accordingly. The appellant has had only very limited success on the appeal. I would order that the appellant pay 90 per cent of the respondent's costs. 7. The orders I propose are: (1) Appeal allowed in part; (2) The judgment in favour of the respondent for $713,532.05 is set aside; (3) In lieu thereof, judgment for the respondent for $685,494.05; (4) Appellant to pay 90 per cent of the respondent's costs of the appeal. 1. SACKVILLE AJA: I have read the judgments of Simpson and Basten JJA. As their Honours differ on some matters, I record my own opinion on each issue. Liability 1. I agree with Simpson JA for the reasons her Honour gives that the challenge by the appellant (ANZ) to the finding on liability fails. Contributory Negligence 1. I also agree with Simpson JA for the reasons her Honour gives that ANZ has not established a basis for overturning the primary Judge's finding that the respondent was not contributorily negligent. Given that the respondent was not aware of the loose wiring and the other matters identified by Simpson JA (at [124]), I can discern no basis for concluding that the respondent failed to take the precautions that a reasonable person in her position should have taken to avoid injury. In my respectful opinion, there is no evidentiary basis for finding that the respondent, once her left foot unexpectedly encountered cabling of which she had previously been unaware, should somehow have adjusted her actions so as to eliminate or reduce the risk of injury from the hazard created by her employer. Non-Economic Loss 1. I agree with Simpson JA that ANZ's challenge to the finding as to the extent of non-economic loss must be rejected. Past Economic Loss 1. I agree with Simpson JA that the evidence relating to the respondent's loss of earning capacity was most unsatisfactory. In addition to the deficiencies identified by her Honour, there is a further difficulty. 2. The primary Judge seems to have proceeded on the basis that immediately prior to her injury the respondent was earning $230 per week gross from her work at KinCare (10 hours per week) and $748.03 gross from her work at ANZ (19 hours per week). (See the judgment of Simpson JA at [149]). The basis for the latter figure seems to have been a single page document, presumably generated by the workers' compensation insurer, stating that it had received valid medical certificates from the respondent for the period 4 July 2011 to 21 July 2011. The document also stated that the "compensation rate for this claim [is] $748.03 gross per week". It is not clear whether this figure was based on the number of hours worked by the respondent at ANZ or whether it represented some other calculation, such as an award rate for a full-time worker. Other evidence indicated that a level 3 casual Bank Worker (which, I infer, is likely to have been the respondent's classification) would have received $985.25 gross per week as at 12 November 2012, if engaged full-time. This remuneration incorporated a loading to allow for benefits not available to a casual worker. 3. As Simpson JA points out (at [153]), reference was made in submissions at the trial to a "payroll report" which apparently indicated that the respondent received a total of $93,550 by way of workers' compensation over a period of about three years and nine months. The significance of the "payroll report", which was not in the appeal papers, is not clear and the Court was not taken to evidence as to how the payments were calculated. 4. In this state of the evidence, it seems to me unlikely that the respondent was being paid at the rate of about $39 per hour gross for her casual work at ANZ (as the figure of $748.03 for 19 hours suggests), rather than a rate of about $26 per hour indicated by the evidence to which I have referred. (Assuming a 38 hour week, $985.25 per week gross represents about $26 per hour gross.) If this is correct, the respondent's pre-accident gross weekly earnings from her work at KinCare and at ANZ would have been about $730. On this basis, the respondent's net weekly earnings prior to the accident would have been little more than the figure of $585 net claimed in her Amended Statement of Particulars. 5. I would accept the figure of $25 gross per hour proposed by Basten JA (at [21]) on the respondent's pre-accident earnings. I would also accept a figure of $600 per week net as the respondent's pre-accident net earnings. 6. As both Simpson JA and Basten JA have explained, some adjustment must be made to the primary Judge's assessment insofar as it was based on the assumption that the respondent would have worked 39 hours per week from a date very shortly after the accident. A further adjustment, in my view, would be required to take account of the fact that a casual worker would be unlikely to work 52 weeks a year. 7. There are different ways to going about make the adjustments, all of which involve a broad brush approach. Regardless of whether one adopts the methodology employed by Basten JA (at [22]) or by Simpson JA (at [165]), my assessment of damages for past economic loss (based on pre-accident net weekly earnings of about $600 per week) would yield a figure close to but perhaps slightly less than that proposed by Basten JA ($116,000 allowing for income actually earned by the respondent). I am content to accept that figure and the consequential allowance of $13,000 for loss of superannuation benefits. Future Economic Loss 1. In my opinion, the use of average national earnings of bank workers as a reference point for the calculation of future economic loss was dubious, having regard to the respondent's educational qualifications and her experience. However, I think that the assessment ultimately arrived at was within the range of what could properly have been awarded. I therefore agree with the conclusions reached by Simpson JA on this aspect of the appeal. Past Domestic Assistance 1. At the trial, a schedule handed up by counsel for ANZ included calculations relating to past domestic care on the basis of six hours per week from the date of the injury until the date of the trial. I accept that this amounted to a concession on behalf of ANZ that no less than six hours per week should be allowed for the entire period. 2. On this basis, I agree with the reasoning of Basten JA and with his Honour's proposal that $34,500 be allowed for this head of damages. Future Domestic Assistance 1. The submission made on behalf of ANZ at the trial in relation to damages for future domestic assistance was opaque. However, I do not read the submission as incorporating a concession which binds ANZ on the appeal. 2. In my view, the evidence fell well short of demonstrating that on the balance of probabilities the respondent required or would utilise commercially provided domestic care services for two hours per week from the date of the trial indefinitely in the future. Without resolving the issue identified by Basten JA (at [47]-[49]), which was not the subject of argument, I agree with his Honour's conclusion that an allowance of $30,000 is appropriate. Future Medical Expenses 1. I agree with Simpson JA. Conclusion 1. For the reasons I have given, I would reject ANZ's challenge to the findings on liability and contributory negligence, but allow the appeal in part on the question of damages. I would allow the following heads of damage: Non-Economic Loss - $103,000.00 (unchanged) Past Out of Pocket - $67,209.00 (unchanged) Past Economic Loss - $116,000.00 (reduced from $158,847.00) Past Superannuation - $13,000.00 (reduced from $17,473.17) Future Economic Loss - $169,377.05 (unchanged) Future Superannuation - $22,019.00 (unchanged) Past Domestic Assistance - $34,500.00 (reduced from $57,564.00) Future Domestic Assistance - $30,000.00 (reduced from $70,044.00) Future Medical Expenses - $10,000.00 (reduced from $30,000.00) Fox v Wood $18,000.00 (unchanged) $583,105.05 1. On this basis I would reduce the total damages award from $713,532.05 to $583,105.05. As the difference between this figure and the rounded figure of $582,000 proposed by Basten JA is very small, I am content to adopt the latter figure. 2. For those reasons, I agree with the orders proposed by Basten JA (at [58]), which take account of this Court's majority finding on the issue of contributory negligence. 3. Since ANZ has only had limited success on the appeal, I agree that ANZ should be ordered to pay 75 per cent of the respondent's costs of the appeal. I agree with Basten JA's observations on the conduct of the case (at [56]). ********** Endnotes 1. Tcpt, 13/04/15, pp 3(20) and 5(28). 2. Tcpt, p 14(7). 3. Tcpt, p 14(33). 4. Tcpt, p 35(25). 5. Tcpt, p 16(50). 6. Tcpt, p 16(45)-(50). 7. Judgment, p 6. 8. Judgment, p 5. 9. Civil Liability Act, s 5R(2). 10. Tcpt, p 8(40). 11. Tcpt, p 10(15). 12. Workers Compensation Act, s 40(2) as in force at the date of injury. 13. Section 40(2)(b). 14. Section 42 was substituted in 2012. 15. (2007) 71 NSWLR 354; [2007] NSWCA 106 at [60]-[62] (in my judgment, McColl JA agreeing) and at [72] (Campbell JA). 16. Judgment, p 14. 17. Tcpt, p 91(40). 18. Report, 2 June 2014, p 4. 19. Report, 19 January 2015, p 3. 20. (1993) 31 NSWLR 162. 21. (1990) 169 CLR 638. 22. Marsland at 182 (Kirby P and Meagher JA) and at 187 (Mahoney JA). 23. [2009] NSWCA 333; 54 MVR 167 at [2]-[3] (Allsop P, Ipp JA agreeing) and [29] (in my judgment) in the context of s 126 of the Motor Accident Compensation Act 1999 (NSW). 24. Report, 2 June 2014, p 5. 25. Report, 19 January 2015, p 1. 26. Tcpt, p 52(30). 27. Tcpt, p 53(46). 28. Tcpt, pp 29-30. 29. Tcpt, p 58(48)-(50). 30. Tcpt, p 59. 31. Tcpt, p 60(3). 32. Judgment, pp 12-13. 33. Tcpt, p 31(15). 34. [2004] NSWCA 405 (Giles JA, Ipp and Tobias JJA agreeing) at [75]. 35. [2009] NSWCA 353 at [16] (Allsop P, Basten and Macfarlan JJA). 36. [2014] NSWCA 97 at [133]-[134]. 37. [2015] NSWCA 117 at [99]-[101]. 38. Tcpt, p 30(24). 39. Tcpt, p 60(10). Amendments 09 June 2016 - "s 15(3)" substituted for "s 15B(2)" - [46] 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: 09 June 2016