CSR Limited v Clydesdale [2003] NSWCA 339 (21 November 2003)

Last Updated: 24 November 2003

NEW SOUTH WALES COURT OF APPEAL

CITATION: CSR Limited v. Clydesdale [2003] NSWCA 339

FILE NUMBER(S):

41006/02

HEARING DATE(S): 10 October 2003

JUDGMENT DATE: 21/11/2003

PARTIES:

CSR Limited - appellant

Kim Clydesdale - respondent

JUDGMENT OF: Meagher JA Hodgson JA Foster AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 52/01

LOWER COURT JUDICIAL OFFICER: Goldring DCJ

COUNSEL:

Mr. J.D. Hislop QC with Mr. G. Seib for appellant

Mr. P. Hennessy SC with Ms. M. Kumar for respondent

SOLICITORS:

Johnstone Robinson Legal, Sydney for appellant

Farrell Lusher, Wagga Wagga for respondent

CATCHWORDS:

WORKERS COMPENSATION - Common law liability of employer - Damages - Appeal - Whether error of fact vitiated primary judge's conclusion as to causation of damages - Whether error affected particular heads of damages - Domestic assistance - Allowance for fair give and take of family life - Whether limitations in s.151K of Workers Compensation Act 1987 apply in respect of future care.

LEGISLATION CITED:

Workers Compensation Act 1987 s.151K

DECISION:

1. Appeal allowed to the extent of substituting for the amount awarded to the respondent, judgment in the sum of $972,740.70. 2. Respondent to pay appellant's costs of the appeal, and to have a certificate under the Suitors' Fund Act if otherwise eligible.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 41006/02

DC 52/01

MEAGHER JA

HODGSON JA

FOSTER AJA

Friday 21 November 2003

CSR LIMITED V. CLYDESDALE

Judgment

1 MEAGHER JA: I agree with Hodgson JA

2 HODGSON JA: On 16 October 2002 in proceedings brought by the respondent against the appellant, Goldring DCJ gave a verdict for the respondent in the sum of $1,367,397.92. The appellant appeals to this Court from that decision.

3 The respondent is a married woman born 11 July 1967. Between March 1998 and July 1999, she was employed by the appellant as a labourer in its planer mill at Tumut. In these proceedings, the respondent claimed that she was required to perform heavy and repetitive tasks in handling timber at the appellant's mill, that the appellant breached its duty to provide her with a safe system of work, and that as a result the respondent suffered injury, particularly to her back. Those claims were accepted by the primary judge. The respondent has not worked since July 1999, and the primary judge found that this was entirely due to her injury caused by the appellant.

4 The primary judge assessed damages as follows:

(1) Non-economic loss under s.151G of the Workers Compensation Act 1987, as applicable to this case: two-thirds of a most extreme case, 66.67% x $236,450.00 = $157,641.22.

(2) Past earnings lost: early July 1999 to trial, at average earnings over last three months of employment, $104,878.00.

(3) Loss of future earning capacity: discounted value of her average earnings until she would have reached the age of 65 - $710.00 (net average weekly earnings) x 822 (5% multiplier to age 65) x 85% (15% discount for vicissitudes) = $496,077.00.

(4) Superannuation - past $29,774.00, future $113,330.00.

(5) Out-of-pockets agreed at $4,400.90.

(6) Future medical expenses - $9,666.00 each for physiotherapy, medication and GP consultations, each calculated at $10.00 per week x the multiplier for the respondent's life expectancy = $28,998.00.

(7) Domestic care - 18 hours per week to 10 November 2000 and 14 hours per week thereafter. Past care calculated at $18.00 per hour = $66,924.00. Future care calculated at $27.00 per hour (agreed to be the commercial rate) = $365,374.80.

GROUNDS OF APPEAL

5 The appellant appeals on the following grounds:

1. His Honour erred in finding the Respondent's medical condition was caused or materially contributed to by her employment with the Appellant or alternatively erred in not finding that any medical condition associated with her employment was merely a temporary aggravation of an underlying unrelated condition.

2. His Honour's finding that the Respondent's medical condition was a consequence of the Appellant's breach of duty of care was erroneous and against the evidence and the weight of the evidence.

3. His Honour erred in finding that there was no contributory negligence on the part of the Respondent.

4. His Honour erred in failing to take into account the Respondent's pre-existing back condition when assessing damages and the likely prognosis of any medical condition.

5. In addition to the preceding grounds of appeal, the assessment of damages is, in any event, excessive and against the weight of evidence, in particular:

(a) The allowance of two-thirds of a most extreme case for non-economic loss pursuant to s151G of the Workers Compensation Act is excessive.

(b) His Honour's conclusion that the Respondent would not work again and the awarding of damages for economic loss on the basis of total loss of earnings was erroneous.

(c) The allowance of physiotherapy for the rest of the Respondent's life was erroneous.

(d) The allowance of medication and visits to the Doctor was not supported by evidence.

(e) The assessment of the amount of care required by the Respondent at 18 hours per week to 10 November 2000 and 14 hours thereafter was excessive.

6. His Honour erred in:

(a) Awarding the Respondent damages for future care wholly at commercial rates and failing to properly consider the application of s151H of the Workers Compensation Act.

(b) Drawing an inference that the Appellant had video evidence of the Respondent which it did not produce in the absence of any evidence to that effect or challenge by the Respondent.

(c) Failing to properly consider the Respondent's history as recorded in the Tumut Hospital records.

(d) Accepting that medical records which stated the Respondent was suffering from ankylosing spondylitis did not indicate that she was suffering from back pain.

(e) Failing to properly consider and give adequate weight to the Appellant's medical evidence.

6 Many of these grounds require consideration of the primary judge's factual conclusions; and this in turn is best undertaken on the basis of a chronological statement of facts which are either common ground or clearly proved, and authentic contemporaneous documents; and I will commence with this.

FACTUAL CHRONOLOGY

7 As noted earlier, the respondent was born on 11 July 1967.

8 She was educated to Year 10 level, and had several part-time jobs in her final years at school. She left school in 1983, undertook a secretarial course at Tumut, and then had clerical and retail jobs, and also worked as a teacher's aid.

9 Her first child, Erin, was born in 1984.

10 In 1987, she married her first husband Noel Weaver. In 1988, her second child (Bradley) was born. Around this time, she was involved in two car accidents. She was not injured, but around this time suffered from depression and panic attacks.

11 It appears that in about 1988 she was diagnosed as having ankylosing spondylitis, apparently solely on the basis of a blood test showing a result indicative but not conclusive of this condition.

12 Meanwhile, the respondent had continued with various jobs, and she was employed casually as a sales assistant in 1989 and 1990. In 1990, she worked briefly for CSR Wood Panels as a casual mill hand.

13 Later in 1990, she bought a café in Adelong, which she operated until she sold it in 1992 for a small profit. In August 1992, while operating this café, she injured her shoulder and upper back in the course of lifting a bag of potatoes.

14 After selling the café in 1992, she was employed as a cleaning supervisor with the contractor responsible for cleaning CSR Wood Panel's plant. This employment continued until 1995.

15 On 9 March 1993, the respondent had a CT scan, which inter alia disclosed "slight annulus bulge ... at the L4/5 and L5/S1 level".

16 On 22 February 1995, in the course of her employment as a cleaning supervisor, she injured her lower back while taking a heavy floor polisher down some stairs. There is in evidence (Blue Appeal Book p.120) a record of her consulting a doctor in relation to this injury on 22 February 1995. It appears that she was off work for two weeks after this injury.

17 There is in evidence (Blue Appeal Book p.244) a letter to the respondent's doctor, Dr. Johar, from Brian Martin & Sons, Solicitors, stating as the respondent's instructions:

She again injured her back when a heavyduty polisher she was trying to move down some stairs got out of her control and wrenched her. ... We are instructed that this second incident has caused a serious injury to her back and that her prognosis in the long term is poor. Indeed, our client has instructed us that she is, in the long term, likely to end up in a wheelchair.

18 However, according to the respondent, only her ex-husband saw the solicitor in relation to this matter.

19 There is also in evidence (Blue Appeal Book p.246) a letter dated 13 September 1995 from Dr. Johar to Brian Martin & Sons, stating that the respondent "has two different medical problems as far as her back is concerned". The letter contains the following:

She has Ankylosing Spondylitis which is a form of arthritis affecting the spine. ... The second problem ... are two different episodes of back injuries one in 1992 when she ... was lifting a bag of potatoes it caused Facet joint strain which recovered over the next few weeks with conservative treatment. The second episode in 1995 happened when she was manipulating a polisher at work she noticed a (sic) acute onset of pain and on presentation she had signs of Facet joint strain, possibly of a more serious nature compared to 1992.

After the second episode ... she seemed to have got cronic (sic) ongoing pain of varying degrees at the time and that in my opinion is related to her Ankylosing Sponditis (sic) rather than her Facet joint injury.

20 There is in evidence (Blue Appeal Book p.275) a letter dated 31 October 1995 from a rheumatologist Dr. Duncan to Dr. Johar, which refers to the respondent has having "bone scan positive B27 positive sacroiliitis." (This apparently referring to the same condition as elsewhere is called ankylosing spondylitis). This letter contains the following:

This has been symptomatic since 1992 but much worse over the last 8 months. She has now been considerably limited and disabled by the pain which is there constantly. It is severe 2 days a week and she has to lie down for most of those days. Her pain is in the buttocks and radiates to the anterior thigh in the typical pattern of sacroiliitis. She gets a lot of associated muscle spasm and generally activity makes things worse.

21 From 1995 to late 1996, the respondent worked as a roadhouse attendant at Shell Roadhouse, South Gundagai.

22 There are in evidence notes of her general practitioner Dr. Wise relating to the period 1996 to early 1998, recording that the respondent took analgesics for conditions unrelated to her back, and containing no record of any complaint concerning her back.

23 From late 1996 to early 1998, she worked as manager of the Gundagai Bakery.

24 In 1997, she was divorced from her first husband.

25 In early 1998, she moved to Tumut in order to take up a job at the appellant's mill. She started as a casual mill hand with the appellant on 27 March 1998. Four days earlier, she had signed a health questionnaire, in which to the question "Have you had any injuries or problems with your back", the answer is given "Yes", "8 yr ago - resolved".

26 On 25 May 1998, the respondent was admitted to Tumut Hospital under the care of Dr. Yates, complaining of severe lower back pain, and reporting that she had been unable to get out of bed. The first note in the hospital record, at time 22.05, is as follows:

H/o Ankylosing spondolitis (sic) for 5-6 years. Usual (sic) takes Panadeine Forte & Valium 5mgs. Has had pain for several hours & it is unrelieved by normal medications. B/P 154/77. P79.

27 The next entry in the hospital record shows the same date, and time 22.30, and was apparently made by a GP Dr. Yates. It reads as follows:

Hx ankylosing spondylitis

Acute exacerbation tonight

No relief with Pan Forte/Valium

No radiation to legs

Reflexes ok

28 At this time, it appears that the respondent was off work until early July. In early July, she returned to work, and applied for a permanent position. She was accepted and became a permanent mill hand at the appellant's planer mill.

29 In late 1998, the respondent had an accident at work in which her hand was crushed. She was off work for a short time following that accident.

30 In February 1999, she married her present husband David Clydesdale.

31 On 7 June 1999, she had a shoulder injury at work, and was off work until about the end of June. In July 1999, she resigned her employment and has not worked since.

32 In late 1999 and early 2000, doctors consulted in relation to certain superannuation benefits reached the view that the respondent did not have ankylosing spondylitis. Subsequently, the respondent adopted the view, asserted in these proceedings, that the back pain which she suffered in May 1998, and which, according to the respondent, she has suffered ever since, was caused not by any pre-existing condition such as ankylosing spondylitis, but by the conditions of her employment at the appellant's mill.

ISSUES ON APPEAL

33 The appellant in this appeal does not challenge the primary judge's finding of breach of duty of care in relation to the conditions of the respondent's employment. However, the appellant seeks a verdict in its favour on the basis that the respondent did not prove damages sufficient to reach the thresholds provided by the relevant sections of the Workers Compensation Act 1987.

34 The appellant's main contention is that the primary judge was in error in finding that the conditions of work caused the pain suffered by the respondent in May 1998 and suffered by her since that time. In substance, the appellant submitted that the primary judge should have found, in accordance with certain medical opinions advanced below by the appellant, that the conditions of employment at worst gave rise to a temporary exacerbation of an underlying condition which was the true cause of the major problems suffered by the respondent. I will deal with that contention first.

35 Next, the primary judge rejected a defence of contributory negligence raised by the appellant. The appellant's submission is that he was in error in so doing.

36 Further, the appellant submitted that, if the primary judge's finding on causation was upheld, nevertheless there should be a substantial discount to the damages awarded because of the respondent's pre-existing condition.

37 Finally, there were a number of particular submissions concerning damages. In particular, there were submissions concerning the amount of damages for non-economic loss, for future economic loss, for future medical expenses, and for domestic assistance.

CAUSATION: GROUNDS 1, 2 AND 6(c)-(e)

38 The issue of causation was carefully considered by the primary judge. He discussed the onset of the current symptoms, the history of back pain, and the conflicting opinions of the medical witnesses. In the course of discussing the history of back pain, the primary judge referred to Dr. Duncan's letter of 31 October 1995, the relevant part of which is set out earlier. He then continued:

Given that there was no complaint of pain to Dr. Johar, this reference is the only reference to the symptom. I am not sure what is meant exactly by this reference, but in my view it does not necessarily mean that Ms. Clydesdale was suffering from, or complaining of, back pain at the time.

A little later he continued:

It is also significant that the overwhelming preponderance of medical opinion adduced by both parties is that in fact Ms Clydesdale now suffers from neither Ankylosing Spondylitis nor sacroiliitis.

Apart from these reports, there is neither direct evidence, nor material from which any inference can be drawn, contrary to her assertion, that she complained of back pain to any doctor between late 1995 and May 1998.

39 The primary judge's conclusions were set out as follows:

Both the medical experts called by the defendant gave opinions, which, in my view, did not adequately explain the plaintiff's present condition. I find that these opinions fail to account for the sudden onset of the plaintiff's condition, its continuing nature, or the intensity of the pain she suffers. In my view, only the opinions of Drs Patrick and Couch do this in any way that is at all satisfactory. Similarly, the opinion of Dr Couch as to the onset of the symptoms is, in my view, the most realistic and practical account, and I prefer it to any other.

I find that the plaintiff is suffering from a mechanical injury to the spine at the L4/5 and L5/S1 joints. This injury either did not exist as such before 1998, or if it did, became markedly more pronounced after that date because of some aggravation, which was not merely degenerative or constitutional. Although the damage to the spine was to a degree present in some radiological studies before 1998, it has become more pronounced and the presence of disc bulges after 1998 cannot be explained satisfactorily by any reason other than some injury occurring at or about that time. Therefore work was either the only or a significant causal factor of the mechanical problem, or was a significant factor in exacerbating some underlying condition. I consider the former more probable, but if I were wrong, I would find the latter. The defendant would therefore be liable in any event.

The plaintiff called evidence from fellow workers to prove that after the incidents in 1992 and 1995 she was able to return to the most arduous of work. Ms Whiting, who worked with her in the Gundagai Bakery was one; Mrs Smart, who was the supervisor at the Shell Roadhouse at South Gundagai during the relevant period, was another. I am satisfied on the balance of probabilities that Ms Clydesdale made a complete recovery from these injuries.

The most convincing element in the plaintiff's case on causation is the lack of any record of a complaint of back pain between 1995 and March 1998. The notes of all treating general practitioners were tendered, so I must infer that if there were any record of a complaint to a doctor of back pain sufficient to call for analgesic or other treatment, it would have been tendered.

There is medical evidence that her pain was the result of a mechanical problem. There is evidence that her work at the defendant's mill was physically hard, involving bending, lifting, twisting, stretching, and pushing heavy trolleys. Any of these activities, which I have found in the circumstances to be unsafe, could have been responsible for her condition, and I infer that her problem more probably than not did result from one or more of these activities at work.

I accept the opinions of Drs Patrick and Coyle that more probably than not, Ms Clydesdale's present condition is a result of the system of work affecting her while she worked for the defendant at Tumut between March and May 1998.

On the balance of probabilities I find it is, specifically, a consequence of either the pushing of unacceptably heavily loaded trolleys or of repeated twisting and bending on the long and short chains without any relief from rotation.

40 Mr. Hislop QC for the appellant submitted that the primary judge made a number of errors in his decision on causation which vitiated that decision. First, he submitted, the primary judge was in error in dismissing the history of eight months of pain in 1995 as reported by Dr. Duncan, and corroborated by Dr. Johar. Second, the primary judge erred in treating the fact that the respondent's pre-existing condition had been incorrectly labelled as ankylosing spondylitis or sacroiliitis as a basis for finding there was no pre-existing condition. Third, the primary judge was in error in accepting Drs. Patrick and Couch, when their opinions were based on a history given by the respondent which omitted the 1995 incident and the following eight months at least of pain.

41 Mr. Hislop submitted that the material clearly indicated a continuing pre-existing back condition, not just to isolated incidents of trauma in 1992 and 1995. First, the circumstance that an expensive CT scan was undertaken in 1993 indicated that there must have been symptoms at that time. Second, this CT scan disclosed bulges in the very areas where, according to the doctors accepted by the primary judge, the respondent now had problems, namely the L4/5 and L4/S1 levels. Next, there was the history noted on admission to Tumut Hospital in May 1998, plainly suggesting a history of ongoing back problems, which were exacerbated in May 1998. This was confirmed by the circumstance that the respondent herself saw her problem as a continuation of existing problems, and not something caused by her work. Finally, Mr. Hislop submitted, the circumstance that the respondent returned to work in early July 1998, and then worked for another year under the same conditions, without causing any greater problem to her back, confirmed that the problem was not due to her working conditions.

42 In my opinion, the primary judge was in error in suggesting that Dr. Duncan's letter of 31 October 1995 was not strong evidence that the respondent suffered from and complained of back pain from February to at least October 1995. In my opinion, this letter was plainly based on instructions given directly by the respondent, and even allowing for the possibility of misunderstanding, the letter is very strong evidence of significant pain over that period. This inference is also supported by the terms of Dr. Johar's letter of 13 September 1995, referring to chronic ongoing pain of varying degrees over the next few months following the 1995 incident. In my opinion, the primary judge was in error in not finding that the respondent did suffer significant back pain for around eight months in 1995.

43 However, I do not think the primary judge treated the mislabelling of the respondent's condition as a ground for saying she had no pre-existing condition. Furthermore, although the opinions of Drs. Patrick and Crouch were based on incorrect histories initially, the correct history was put to them in cross-examination, and they adhered to their views on causation.

44 The other matters relied on by Mr. Hislop, in my opinion, have little force. The undertaking of the CT scan in 1993 is explicable as a measure in monitoring the condition which the respondent was then thought to have. The bulges shown in the CT scan are not uncommon, and may never cause symptoms. The history noted on admission to hospital in May 1998 is consistent with a belief in an ongoing condition of ankylosing spondylitis without pre-existing symptoms of pain; and Dr. Yates, the doctor under whose care the respondent was admitted, gave oral evidence to the effect that he did not recall the respondent giving a history of pre-existing back pain. The evidence was that she was taking analgesics for other problems. In circumstances where the respondent had been told that she had the condition ankylosing spondylitis and told that that condition was likely to cause back problems, it is not surprising that she related her symptoms at that time to that condition rather than to her work. Finally, the doctors whose evidence was accepted did not regard the circumstance that she had worked for a further year as a ground for departing from their view on causation.

45 On the whole, I do not think the primary judge's error in relation to the evidence of eight months of pain in 1995 played a sufficient role in his reasoning to vitiate his conclusion on causation. What the primary judge particularly relied on was the circumstance that there was no recorded complaint about back pain between about October 1995 and May 1998, even though the respondent had been regularly visiting a general practitioner in that period with other problems, and receiving medication for those other problems. The primary judge was entitled to accept the respondent's evidence that the pain she felt in May 1998 and thereafter was more severe than the pain she felt in 1995; and in my opinion, in those circumstances, he was entitled to accept the plaintiff as a witness of truth, albeit without perfect recollection, notwithstanding the absence of reference to the 1995 episode to several of the doctors and notwithstanding the assertion in the medical questionnaire completed in March 1998 that her back problems had occurred eight years previously and had resolved.

CONTRIBUTORY NEGLIGENCE: GROUND 3

46 The appellant submitted that the respondent's action demonstrated a high degree of contributory negligence. She understood that she had a pre-existing back condition, she gave incorrect information to the appellant about her condition at the time she applied for employment, and, after the episode of pain in 1998, she knew that her underlying condition rendered her unsuitable for heavy work. Nevertheless, she went back to work for a further year.

47 In my opinion, it was open to the primary judge to find that the respondent believed her problems were due to ankylosing spondylitis and were not work-related. There is also force in the primary judge's finding that the problems that the respondent now has had substantially been caused by May 1998. In those circumstances, in my opinion there is no appealable error in the primary judge's finding that there was no contributory negligence.

DISCOUNT FOR PRE-EXISTING CONDITION: GROUND 4

48 It was submitted for the appellant that, even if the primary judge's finding of causation was not overturned, this must be on the basis that the work conditions were a substantial contributing cause to her condition, because the evidence plainly showed that her pre-existing condition was also a contributing factor. At the very least, this should have resulted in some discounting of the damages awarded: cf. Malec v. J.C. Hutton Pty. Limited [1990] HCA 20; (1990) 169 CLR 638.

49 Mr. Hennessy SC for the respondent submitted that, in circumstances where the respondent had been pain-free from about the end of 1995 to May 1998, it was reasonable to take the view that she had recovered from previous injuries, and it was appropriate to adopt the usual 15% discount for vicissitudes in assessing future economic loss.

50 In my opinion, the primary judge's error in relation to pain felt by the respondent between February 1995 and about October 1995 is relevant to this question. In my opinion, the circumstance that the respondent suffered significant back pain for eight months after wrenching her back in February 1995 is very strongly suggestive that she did have an underlying back condition which made her susceptible to injury and disability from her back. The evidence did suggest other health problems, although by themselves these would not in my opinion have justified any significant discount in damages awarded. The evidence indicated that the respondent was a hard worker, with a good work record. However, particularly because of a back condition, which in my opinion made her more than usually susceptible to injury and disability, some reduction in the damages which would otherwise have been awarded was required; and I will consider the appropriate reductions in relation to the relevant heads of damage.

DAMAGES: GROUNDS 5, 6(a) and (b)

Non-Economic Loss

51 It was submitted for the appellant that the medical evidence of the appellant should have been accepted, resulting in an assessment of non-economic loss below the threshold that would have justified any award of damages. Even if the respondent's medical evidence was accepted, it was submitted, the assessment of two-thirds of a most extreme case was manifestly excessive. It was submitted that the primary judge appeared not to have conceived of a most extreme case, against which to compare the respondent. She was now able to do much of the housework, she had weaned herself off medication, and even the respondent's medical experts expected some improvement. A four-minute surveillance video showed her as walking up steps two at a time.

52 It was submitted that the primary judge made a particular error in relation to that surveillance evidence, drawing an inference that any resulting evidence from other surveillance would not have assisted the appellant's case. It was submitted that there was no evidence of other surveillance, and that in any event the rule in Jones v. Dunkel [1959] HCA 8; (1959) 101 CLR 298 had no application.

53 Mr. Hennessy SC submitted that the respondent's symptoms of pain invaded every aspect of her life, and disqualified her from employment and from sport, which she previously enjoyed. No operation could alleviate her symptoms, so, although a young woman, she could only expect pain for the rest of her days.

54 In my opinion, but for the judge's error affecting his assessment of her pre-existing condition, appellate intervention would not have been justified in relation to this head of damage. The primary judge's assessment of the likely impact on the respondent of pain reported by the respondent, in relation to which there was considerable doubt about any improvement, must carry great weight. I agree with the appellant's submission that Jones v. Dunkel has no application in relation to surveillance evidence. An inference that surveillance evidence that the appellant may well have had would not have assisted the appellant has no bearing on the assessment of the respondent's condition; but I do not think the primary judge did give any significant weight to this consideration. However, in my opinion the primary judge should have taken account of the respondent's pre-existing condition, and in particular to the chance that even without the injury caused by the appellant the respondent would have had significant back problems. In my opinion, this justifies the appeal court in re-assessing the award for non-economic loss, and I would propose an award on the basis of 50% of a most extreme case.

Future Economic Loss

55 Mr. Hislop submitted that the primary judge made three errors, in addition to allowing an insufficient deduction for vicissitudes. First, he made the calculation on the basis that the respondent would work to age 65, in circumstances where the respondent had given evidence that she would work until she was 60 or 65. Second, the primary judge took as the applicable weekly figure a figure based on heavy work with long hours of overtime, in circumstances where it was most unlikely that that would continue until age 65. Third, he made no allowance for any residual work capacity.

56 Mr. Hennessy submitted that, having regard to the way the respondent answered the question about how long she would have worked, it was open to the primary judge to conclude that the mention of age 60 was only a tentative step in reaching a firm view that she would have worked until age 65. There was no question in cross-examination challenging this evidence. Mr. Hennessy submitted that the point about heavy work and overtime was not taken below, and could not now be taken. He submitted that the primary judge was entitled to accept Dr. Crouch's evidence that the respondent was unemployable in the country.

57 In my opinion, the primary judge was entitled to take the view that there was no effective residual earning capacity. In my opinion, the primary judge may have taken the view that the answer to the question concerning how long the respondent would have worked was expressed in such a way as to indicate that the real answer was age 65. However, in my opinion the primary judge was in error in applying, to age 65, a rate based on heavy manual work and long hours of overtime. In my opinion, that submission was open on the way the case was conducted below, and in my opinion it is unlikely in the extreme that if a submission in precisely those terms had been made below, there would have been any application to re-open the evidence. I do not think Suttor v. Gundowda Pty. Limited [1950] HCA 35; (1950) 81 CLR 418 has any application.

58 In my opinion, the combined effect of the respondent's pre-existing condition and the consideration I have just referred to is that the discount for vicissitudes should be 30% rather than the usual 15%.

Future Medical Expenses

59 It was submitted for the appellant that an allowance of $10.00 per week for each of medication, general practitioner consultations and physiotherapy was disproportionate and excessive. In particular, there was no basis for an award of damages for ongoing physiotherapy: according to the respondent, physiotherapy aggravated her condition when she underwent it in 1999. Further, since October 2000, the only treatment the respondent appears to have received is that from Dr. Yates. Out-of-pocket expenses over the four and a half years between May 1998 and the trial amounted only to $4,200.00.

60 In my opinion, these submissions should be upheld, and, in my opinion, the award for future medical expenses should be reduced by half.

Domestic Assistance

61 It was submitted for the appellant that the evidence did not justify the assessment by the primary judge of 18 hours per week of care to 10 November 2000, and 14 hours per week of care thereafter. The respondent's estimates were very broad. None of the assistance was recorded. Mr. Clydesdale could not make an estimate. The respondent's friend Leanne Booby, who was said to provide some of the assistance, was not called; and nor was the respondent's mother. Furthermore, it was submitted that the primary judge was in error in applying a commercial rate for future assistance, contrary to s.151K of the Workers Compensation Act.

62 Mr. Hennessy submitted that the evidence supported 21 hours per week of care, and the primary judge was justified in the assessments that he made. Mr. Hennessy submitted there was no cross-examination concerning the estimates given by the respondent. Mr. Hennessy submitted that the practice was not to apply the limitations of s.151K to the cost of future care, and that the words "are to be provided" in s.151K mean that the limitations are restricted in the case of future care to those cases where there is an existing obligation to provide such future care.

63 In my opinion, the primary judge was certainly justified in reducing the hours referred to by the respondent. The evidence was vague, and later in her evidence the respondent acknowledged that she was doing more now than she used to. In my opinion, account should also have been taken of the circumstance that at least some of the assistance could be regarded as having been and to be given by members of the respondent's family in accordance with the ordinary and fair give and take of domestic living: see Roads & Traffic Authority of NSW v. Lolomanaia [2001] NSWCA 268; (2001) 34 MVR 249 at [45] to [50]. By the time of the trial, the respondent generally succeeded in preparing meals herself, and generally got the vacuuming done herself. She still had to get someone to do the heavier cleaning. However, in circumstances where the respondent is doing most of the cooking and most of the vacuuming, as well as much of the washing and hanging out of the clothes and some of the ironing, some contribution to other domestic tasks could be expected from family members as part of the ordinary and fair give and take of family life. Of course, allowance must be made for the possibility that the respondent may not always be in a domestic situation where such give and take occurs.

64 In my opinion, the hours allowed for domestic care should be reduced to 12 hours per week to 10 November 2000, and 9 hours per week thereafter.

65 As regards the rate, s.151K of the Workers Compensation Act 1987, at the relevant time, provided as follows:

151K (1) Compensation, included in an award of damages, for the value of services of a domestic nature or services relating to nursing and attendance:

(a) which have been or are to be provided by another person to the injured worker; and

(b) for which the injured worker has not paid or is not liable to pay,

must not exceed the amount determined in accordance with this section. (2) [repealed]

(3) No compensation is to be awarded if the services would have been provided to the injured worker even if the worker had not been injured.

(4) [repealed]

(5) If the services provided or to be provided are not less than 40 hours per week, the amount of the compensation must not exceed:

(a) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for:

(i) in respect of the whole or any part of a quarter occurring between the date of injury in relation to which the award is made and the date of the award, being a quarter for which such an amount has been estimated by the Australian Statistician and is, at the date of the award, available to the court making the award - that quarter; or

(ii) in respect of the whole or any part of any other quarter - the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and is, at that date, available to the court making the award; or

(b) if the Australian Statistician fails to ceases to estimate the amount referred to in paragraph (a), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed.

(6) If the services provided or to be provided are less than 40 hours per week, the amount of the compensation must not exceed the amount calculated at an hourly rate of one-fortieth of the amount determined in accordance with subsection (5)(a) or (b), as the case may be.

(7) Unless evidence is adduced to the contrary, the court is to assume that the value of the services is the maximum amount determined under subsection (5) or (6), as the case requires.

(8) Except as provided by this section, nothing in this section affects any other law relating to the value of services of the kind referred to in subsection (1).

66 Plainly, in my opinion, this applies to compensation for future care as well as past care. I reject the submission that the words "are to be provided" limit the application of s.151K(1) in the case of future care to cases where there is an existing obligation to provide future care: in my opinion those words are apt to refer to future care generally, just as the words "have been ... provided" are apt to refer to past care generally. The amount prescribed by the section, relevantly for the purpose of this case being $18.00 per hour, can be exceeded only in the circumstances referred to in s.151K(1)(b), namely where the injured worker has paid or is liable to pay some additional amount. There was no basis for drawing such a conclusion in this case. Indeed, I am inclined to the view that, unless a worker has some existing contractual liability to pay greater amounts in relation to some future period, this exception cannot apply in relation to future care. Certainly, it cannot apply to future care if the worker does not prove that he or she will be liable to pay greater amounts in the future. Accordingly, in my opinion, the primary judge was in error in applying the rate of $27.00 per hour in relation to future care.

67 This gives rise to the following figures. For the past, 12 x $18 x 128 = $27,648.00 + 9 x $18 x 101 = $16,362.00. For the future, 9 x $18 x 966.6 = $156,589.20.

CONCLUSION

68 It follows, in my opinion, that the damages awarded to the respondent must be reduced by the following amounts:

(1) Non-economic loss: $157,641.22 - $118,225.00 = $39,416.22

(2) Future earning capacity: $496,077.00 x 15 85 = $87,543.00

(3) Future superannuation: $113,330.00 x 15 85 = $19,999.40

(4) Future medical expenses: $28,998 2 = $14,499.00

(5) Domestic care: ($66,924.00 + $365,374.80 = $436,798.80) - ($27,648.00 + $16,362.00 + $156,589.20 = $200,599.20) = $236,199.60.

69 This gives a total reduction of $394,657.22. This represents some substantial success by the appellant; and although the appellant's primary submission failed, this did not add significantly to the costs. In my opinion, the appellant is entitled to costs.

70 I propose the following orders:

1. Appeal allowed to the extent of substituting for the amount awarded to the respondent, judgment in the sum of $972,740.70.

2. Respondent to pay appellant's costs of the appeal, and to have a certificate under the Suitors' Fund Act if otherwise eligible.

71 I would reserve leave to either party to furnish written submissions within seven days if they wish to challenge mathematical calculations or the costs order; and if such submissions are furnished, the other party may respond within a further seven days.

72 FOSTER AJA: I agree with Hodgson JA.

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LAST UPDATED: 21/11/2003