Illawarra Area Health Service v Cameron [2005] NSWCA 159 (12 May 2005)

CITATION: Illawarra Area Health Service v Cameron [2005] NSWCA 159

FILE NUMBER(S):

40168/04

HEARING DATE(S): 28 February 2005

JUDGMENT DATE: 12/05/2005

PARTIES:

ILLAWARRA AREA HEALTH SERVICE (Appellant)

Samantha CAMERON (Respondent)

JUDGMENT OF: Santow JA Campbell AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 327/01

LOWER COURT JUDICIAL OFFICER: Goldring DCJ

COUNSEL:

K P REWELL, SC/ J CLYNE (Appellant)

J McINTYRE, SC/ D MORGAN (Respondent)

SOLICITORS:

Turks Legal (Appellant)

Russell McLelland Brown (Respondent)

CATCHWORDS:

DAMAGES - whether video evidence corroborated respondent's evidence - whether there was failure to have regard to the vocational assessment performed by the Vocational Psychologist - whether assessment of future loss of earning capacity was in error - whether the discretionary determination of allowance for future domestic assistance outside range of available discretion warranting appellate intervention.

LEGISLATION CITED:

Workers Compensation Act s151K

Workers Compensation Legislation Further Amendment Act 2001

DECISION:

Appeal upheld in part. Appellant to pay the respondent's costs of the appeal.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40168/04

DC 327/01

SANTOW JA

M W CAMPBELL AJA

12 MAY 2005

ILLAWARRA AREA HEALTH SERVICE v Samantha CAMERON

Judgment

1 SANTOW JA:

INTRODUCTION

The appellant employer, Illawarra Area Health Service (“IAHS”), challenges damages awarded to its respondent employee, Samantha Cameron, by reason of the appellant’s negligence. That negligence was in having the respondent under pressure perform five days of intense data entry work upon a lengthy document. The damage consisted of symptoms in her left shoulder with repercussions that led to over-use of her right arm. As a result she underwent a surgical procedure a year later which left her left shoulder worse rather than better. She developed “frozen shoulder syndrome”. Liability is not now in issue. What is now challenged are the findings on future loss of earning capacity, and on future domestic assistance. With some encouragement from this Court, the parties since the appeal was heard, reached agreement on the figure for past domestic assistance, at $27,883.99.

SALIENT FACTS

2 Most of the salient facts are not in dispute save as indicated. What follows is largely taken from the judgment of the trial judge, Goldring DCJ.

3 Ms Cameron’s earlier employment history is that she was born in England in June 1968. She was married in 1991, and has two children (1993 and 1998): judgment Red, 4E-J.

4 She was educated up to the Higher School Certificate in public schools, but has also completed a TAFE certificate course in management: judgment Red, 42F,P.

5 She had worked in full-time employment (except for short periods) with a number of employers following the birth of her children, ever since 1986 up until her employment with IAHS was terminated on 3 December 2002: judgment Red, 42G-K. All of those jobs except one involved entering data into a computer using a keyboard: judgment Red, 42L-M.

6 At the time of the accident she was working as an administrative officer class 3 with IAHS, a promotion which she attained in August 1999: Red, 43F-H.

7 In 1983 at the age of 15, Ms Cameron was involved in a motor accident and injured her left arm, particularly her elbow. That did trouble her for some years and involved a pinching sensation at the base of her neck: judgment Red, 46X-47D. It had not however impacted on her working ability and there is no suggestion that it was directly relevant to the damages issue.

8 In October 2000, the respondent under pressure performed five days of intense data entry work in relation to a lengthy document. As a result, she commenced experiencing symptoms in her left shoulder. The respondent sought medical treatment but continued working. On medical advice she would use the computer by spending 15 minutes on and then 15 minutes off. She did not lift heavy weights or work with her hands above shoulder height. She experienced difficulty in using her left arm and shoulder.

9 She continued to work full-time, but on that restricted basis until 3 October 2001. Then, on the advice of her treating physicians, Ms Cameron was admitted to Illawarra Private Hospital for a left shoulder arthroscopy: judgment Red, 53K-M.

10 After the surgery, her condition became significantly worse, with a significant reduction of movement and increase of pain: judgment Red, 53N-O.

11 On 11 December 2001, Dr Reader (rehabilitation specialist) reported she had been diagnosed with a “frozen shoulder” and on 14 November 2001, Dr Murray (rehabilitation specialist) found that although she wanted to, she was not fit to return to work: judgment Red, 53P-R.

12 Although Ms Cameron had begun a return to work program in February 2002 (on the basis of reduced hours namely 6 hours per week, being three hours per day for two days a week), IAHS ultimately terminated her employment on medical grounds in December 2002: judgment Red, 53W-54E.

13 She has not worked since this time: judgment Red, 54Q.

14 Thus Ms Cameron was unfit to work for more than six hours per week until 3 December 2002: judgment Red, 69J.

15 After that time, it was found that Ms Cameron would have been, and will be able, to find some part-time employment but will never be able to work full-time or work in any of the capacities that she has been employed up until the accident: judgment Red, 69T-V.

16 Being intelligent as she was, it was found that she could undertake some supervisory work that did not involve the use of her left arm, other than to hold light items or steady objects such as a piece of paper upon which she was writing with her right hand: judgment Red, 69W-X.

The Primary Judgment

17 The trial judge concluded that at present she was not capable of working for more than three hours per day, three days per week. Even if she did develop further mechanisms of coping with the pain, the limitation on use of her left arm would still prevent her from working more than about four days per week, three hours per day: judgment Red, 69X-70E.

18 He observed that employment opportunities for people with such serious disabilities were severely limited and would extend over the time she would be expected to retire at age 65: judgment Red, 70G-H. I would observe that this was a significant consideration which properly weighed in the determination of her loss of future earning capacity.

19 The trial judge assessed her loss of future earning capacity at 80%, such that her damages would be 80% of the wage she would, absent injury, expect to get: judgment Red, 70J. That percentage is challenged, with 50% proposed as the maximum that should have been allowed.

20 For loss of future earning capacity, the trial judge concluded that because the expert report was impossible to understand, these damages should be calculated on the basis that because of her intelligence and diligence, Ms Cameron would have made some progress through the ranks of the public service and would have become in due course an administrative officer class 4, earning $680 per week gross: judgment Red, 70U-W.

21 Therefore he calculated this item at $530 (net wage of an administrative officer level 4) x 80% x 822 (multiplier for 30 years) – less usual deduction for vicissitudes (15%) producing $296,249.

22 On past and future domestic assistance the trial judge noted that before she injured her shoulder Ms Cameron was able to undertake a significant part of the housework, cooking, cleaning and caring for the children: judgment Red, 71Q.

23 However, since October 2000, she has been severely restricted. Thus until her surgery, she required assistance in shopping, cleaning, cooking, washing and ironing, but after surgery her injury has prevented her from doing any of these things freely or at all: judgment Red, 71S-T. She has received assistance from her mother and her mother-in-law: judgment Red, 71T.

24 There is a comprehensive report of Ms Rorke (Blue, 341) concerning her domestic care needs upon which the trial judge relied. Ms Rorke is an expert physiotherapist with apparent expertise in domestic assistance and carer requirements for injured persons. She concluded that the respondent, given her condition and past assistance, did require equipment and assistance to perform domestic work: judgment Red, 71W-X.

25 The trial judge was satisfied that Ms Cameron was no longer able to do many of the household tasks she performed before October 2000. The evidence satisfied him that she required assistance in cooking, cleaning, shopping, washing and ironing for one hour per day everyday, and will continue to do so for the rest of her life: judgment Red, 72F-H.

26 The trial judge was also satisfied that for a period of six weeks after her surgery in December 2001, she required considerably more domestic assistance because her arm was in a cast, and she had increased pain: judgment Red, 72I-J. He concluded that the report of Ms Rorke and the report of Ms Andrews are evidence of the nature and extent of this need.

27 The trial judge concluded that damages should be computed as follows:

(a) 1 November 2000 to 27 February 2004 (less the six weeks after her surgery): 7 hours per week @ $25 per hour x 3.2 years x 52 = $29,120;

(b) 6 weeks in December 2001 to January 2001: 19 hours per week @ $25 per hour = $2,850;

(c) Future: 7 x $25 x 966.6 (multiplier on life expectancy of 48.4 years) = $169,155.

Appellant’s Challenge

28 The appellant’s challenge took the form of the following submissions which I shall summarise below:

Ground 1: Future loss of earning capacity

29 First, according to the appellant, the trial judge’s finding in relation to future loss of earning capacity was extreme, and failed to have regard to the considerable office skills possessed by Ms Cameron. Thus, it was said the judge did not refer to the report of O J Burchett of the Vocational Capacity Centre (22 May 2002 in Blue, 691), which was the only report examining Ms Cameron’s capacity in any detail, setting out a number of jobs which were within Ms Cameron’s capacity.

30 Second, the reports of the doctors were only of limited value, as (it was said) the trial judge correctly noted. The appellant submits that the best indication of Ms Cameron’s capacity was the video (Ex 1) taken when she was moving house in February 2003, and that the trial judge’s finding that the video substantially corroborated her evidence was unduly favourable to Ms Cameron, not accurately reflecting what the video revealed.

31 According to the appellant, the video (taken over four hours but eighteen minutes in duration), clearly and unequivocally revealed that she was using her left arm much more actively than merely lifting or holding in place a piece of paper and provided no objective indication of ongoing pain when using the arm. The video was said to constitute incontrovertible evidence; that is, as I understand the submission, pointing decisively and not merely persuasively to error on the part of the trial judge, in the sense articulated by the High Court in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118. (I shall return to that submission in light of this Court’s viewing of the video.)

32 It was submitted that once the premise of the judge’s assessment is thus invalidated, the question of future loss must be reassessed by the Court of Appeal, and at most she had a 50% loss.

Grounds 2-3: Past Domestic Assistance (since agreed)

33 It was submitted that the trial judge made a clear error in not using the hourly rate prescribed by s151K of the Workers Compensation Act, in circumstances where there was no evidence as to the amounts actually paid out. Section 151K, repealed by the Workers Compensation Legislation Further Amendment Act 2001 with effect from 27 November 2001, but agreed by the parties as not thereby precluded from application to the present circumstances, is in the following terms:

“151K Damages for economic loss—maximum amount for provision of certain home care services

(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 the 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 or 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).”

34 The trial judge it was said, also erred in assessing the need for past domestic assistance at seven hours per week. There was no evidence as to how many hours of work were performed by those who assisted Ms Cameron with domestic duties – evidence was vague in the extreme. The report of Ms Rorke was premised on assumptions, unsubstantiated by the evidence.

35 The judge failed to have regard to the level of assistance Ms Cameron was receiving before the injury and the normal give and take of family life.

36 This figure has since been agreed at $27,883.99. The basis for that agreement is set out in the respondent’s letter of 8 March 2005.

Grounds 4-5 – future domestic assistance

37 Again it is submitted that there was no evidentiary basis for the judge to use a commercial rate, instead of the rate prescribed by s151K.

38 It was submitted that the only evidence as to future intention to use such services and possible payment did not satisfy the test of the Court of Appeal in Matchan v Lyons (2003) NSWCA 384; that is to say, of proving that she will actually incur liability to pay for these services in the future. The only evidence is that she will be restricted in those tasks which involve a strenuous use of the left arm.

39 Three hours per week at s151K rates was therefore said to be the appropriate allowance for both past and future domestic assistance.

40 Therefore, it was submitted that the damages should be altered, as indicated by the striking out and substitution below:

Lost earning capacity @ 80% 50% of the wage of an administrative officer level 4

$296,249.00

$185,156.00

Superannuation adjustment

$31,343.13

$21,345.00

Past domestic assistance

§ From 1 November 2000 to 27 February 2004 @ 7 hours per week at $25 p.h. AND

§ 6 weeks in December 2001 to January 2002 @ 19 hours per week at $25 p.h.

§ 3 hours per week @$18 p.h. (s151K)

$29,120.00

$ 2,850.00

$31,970.00

$11,038.00

Future domestic assistance @ 7 hours per week at $25 p.h. 3 hours p.w. @ $18 p.h.

$169,155.00

$55,096.00

TOTAL REDUCTION

-$327,955.32

DISPOSITION OF APPEAL

Loss of earning capacity – 80% or 50%?

41 At the forefront of the appellant’s argument was the video to which I have made earlier reference. This Court viewed it against the assertion by the appellant that it constituted incontrovertible objective evidence that precluded the finding reached by the trial judge of an 80% loss of earning capacity. The trial judge, it should be recalled, concluded rather that the video substantially corroborated her evidence. It is submitted on appeal that this was unduly favourable to the respondent and did not accurately reflect the effect of the video.

42 In viewing the video this Court had the opportunity both to see it for itself and to have the benefit of submissions by counsel both as to matters thought to be significant in the video as it was played and at the conclusion of that video.

43 First, to put the video in perspective, it was taken on the occasion of Mr and Mrs Cameron moving house. On such an occasion, one might well expect that Ms Cameron would exert herself beyond a comfortable threshold. though one would not expect her to engage in movements which she said were impossible for her or undertake ones causing pain beyond discomfort.

44 The relevant part of the video (much of it is irrelevant) was of Ms Cameron cleaning out a refrigerator. To put those images in context, I should briefly review the evidence Ms Cameron gave of her condition and the way in which she carried her left arm in consequence. This is against a background where Ms Cameron’s right arm was dominant.

45 At Black T, 76.9 and following, Ms Cameron stated that the difference between her arm now and before injury was that: “I hold my arm constantly up. I can’t straighten it down, by my side, I can hardly move it. I really don’t use it for anything.”

46 I pause to note that she does not say she can never move it but that she can “hardly move it”. I do this because of the appellant’s assertion that the video film was said to demonstrate that she could move it, a point to which I will return.

47 Her description of her pain is to be found at the following further examination in chief at Black T, 76.21:

“Q. What about your left shoulder?

A. Yeah, it’s, I used to just be able to stand up quite straight, but I can’t really do that now.

Q. Are you in pain with your shoulder now?

A. Mm.

Q. How would you describe the pain now?

A. I would describe it, about an eight out of ten.

Q. Leaving aside these administrative short cuts to pain description, how would you describe it?

A. Severe, chronic.

Q. Are you taking anything for it today?

A. Not in the way of pain relief, because I didn’t get any relief.

Q. Well what do you do about the pain?

A. Live with it, put up with it. I take sleeping tablets, so I can sleep of a night time.”

48 To this should be added what she said in examination at chief at Black T, 79 where she explains why her children can’t sit next to her on the lounge:

“Q. Why can’t they?

A. Because if someone bumps it, the pain is, is intense.

Q. Let’s just look at that. You’ve told his Honour that it’s painful sitting there, if someone were to just put their hand on your shoulder, how would that feel?

A. It would hurt.

Q. If you bumped it?

A. Mm, that would really hurt.

Q. Does movement cause, some movements cause pain?

A. Yes it does.

Q. What movement?

A. Trying to move my arm, trying to get some movement, but then I can also sit there on the lounge and be doing nothing, and all of a sudden a sudden sharp pain will go through it, for no real reason.”

49 The appellant relied then particularly on what is said in cross-examination about how she held her left arm. I quote the relevant parts from Black T, 84.30:

“REWELL: Q. Mrs Cameron, I have noticed both yesterday and today that each time you’ve walked to the witness box you have held your left arm by your side with a right angle bend in your left elbow holding your left wrist and hand across your midriff?

A. Yes.

Q. Would you agree with that?

A. Yes I do.

Q. And is that the manner in which you say you have to hold your left arm, wrist and hand?

A. Yes I do.

Q. And for how long do you say that it’s been the case that you have to hold your left upper limb in that fashion?

A. All the time.

Q. Since when?

A. Since the operation.”

50 Further cross-examination occurs at Black T, 85.4 and following:

“Q. And ever since then you’ve been forced, have you to hold your left arm in the manner in which I’ve described?

A. Yes.

Q. And you do that all the time?

A. Yes I do.

Q. When you went back to do light work in the employment of IHS, that was the chasing up of the debtors, you didn’t use your left arm or shoulder at all did you?

A. No.

Q. And it was your position during the whole course of that light work that you were totally unable to use your left arm?

A. Yes.

Q. And do you say that remains the position?

A. Yes.

Q. And has remained the position since you went back to do that light work early in 2002?

A. Yes.

Q. Indeed, would it be fair to say that in your view you cannot use your left arm at all and haven’t been able to do so since the surgery performed by Dr Haber?

A. I can use it a little bit, I wouldn’t say that I can’t use it, not at all.

Q. How do you use it if it’s by your side with your hand across your midriff?

A. I can put my arm out, like extend my arm out the front --

HIS HONOUR: Which she is in fact doing at right angle, so she’s got her arm out at right angles to her body.

WITNESS: Did you want me to stand?

REWELL: Q. As you gave that answer you extended your right, not left--

A. No, but my left--

HIS HONOUR: NO, left arm out as well.

WITNESS: Yeah, is also.

REWELL: Q. So that your elbow is still bent at right angle?

A. Yes.

Q. But now your hand’s out in front of you, not across your midriff?

A. Yes, yes. So if it came to sitting at a table and writing something I could actually hold the piece of paper with the left arm to steady it so I could write. As far as lifting anything though I would basically try and do all that with my right arm or I just don’t do it.

Q. Of course you’re right handed?

A. Yes I am.

Q. So you write with your right hand?

A. Yes.

Q. But you think you could have held paper in position to write upon using your left hand still with the elbow bent at 90 degrees, the upper arm beside the side of your body?

A. Yes.

Q. And therefore with your shoulder effectively held rigid?

A. Yes.

Q. Is that the position?

A. Yes.

Q. You say that’s been the position ever since Dr Haber’s surgery?

A. Yes.”

51 Against the background of that video evidence, the trial judge found that it confirmed Ms Cameron’s demeanour in court, that she was favouring her left arm (judgment Red, 67-8). It should be remembered that the trial judge was in a position, which this Court is not, to observe not only the video but also her demeanour in court. No doubt it could be said that she would be more conscious in court of her movements but that does not detract from the trial judge’s advantage. At judgment Red, 68 the trial judge stated that “the defendant tendered the video. In my opinion this shows that any exaggeration of her disability on the part of the plaintiff was minimal and unintentional. In substance, the video corroborated her oral evidence and what she has told various doctors”.

52 I would agree with that conclusion. When one actually views the relevant part of the video, being as I have said when she cleaned out the refrigerator, but also including her walking to the car, she does hold her left arm in the manner described, that is that her left elbow appears mostly at her side and her lower arm forward at 90 degrees. She cleaned the refrigerator with her right arm but at one point she used her left arm to hold a plastic bag into which she put some contents of the fridge. It is quite unfair to assume that the weight of that plastic bag was at all heavy. There is nothing here which rises anywhere near the level of incontrovertible evidence to the contrary of the trial judge’s conclusion.

53 There was one point where it appeared Ms Cameron was opening the vegetable tray at the bottom of the fridge with her left arm. Much was made of this by the appellant. But the truth of the matter is that it was fairly clear that she was bending in order to do so. Certainly the video did not demonstrate that she had altered the angle of her left arm in a way that she said she could not do.

Conclusion

54 My overall conclusion from viewing the video was that the trial judge’s assessment of it was the same as my own. It was far from constituting incontrovertible evidence to the contrary of the respondent’s case and insofar as it bore on that case, if anything confirmed it.

55 What remains of this aspect of the appellant’s challenge is really based upon the supposed failure of the trial judge to have regard to the vocational assessment performed by O J Burchett (Blue, 691). Mr Burchett is a “Vocational Psychologist” (Blue, 699). He essentially concludes that there “do not appear to be any compelling reasons of a psychological nature, why Ms Cameron should not be able to continue to be employed as an office manager. Difficulties that have been cited appear to be of a physical nature and are, therefore, the provenance of other assessors (Blue, 698) [emphasis added].

56 It is fair to say that while the author of the report identified a number of “vocational possibilities” he did not purport to assess whether or not the physical nature of the respondent’s disabilities would have allowed her to perform such work, even on a part-time basis. The author of the report, properly, does not purport to assess her physical capacity for work, noting that such limitations were beyond the author’s area of expertise (Blue, 699).

57 First, I would point out that there is no indication that the trial judge had overlooked the psychological report. Rather the point was that the trial judge did not find it, with its clear limitation in terms of lack of expertise on physical aspects, to be directly helpful. There were in any event a number of reports as to her disabilities being genuine not only from Ms Rorke (“Generally speaking Mrs Cameron’s prognosis for a significant improvement in her left shoulder is poor given the length of time that has elapsed since her initial injury without any improvement and as stated in Professor Owens [sic] report dated 5 December 2001, that Mrs Cameron has a permanent loss of efficient use of her left shoulder of some 90% of the normal at the shoulder itself” (Blue, 347)) but also from Professor Owen whom she quotes.

58 Professor Owen did indeed say what is attributed to him by Ms Rorke (at Blue, 439 under “Attribute ability and apportionment”). He says earlier under “Prognosis”:

“there are genuine physical signs and symptoms dating from October 2000 to the present day. These consist of a virtually frozen shoulder situation on the left side and a painful right shoulder as a result of compensation over use”. He goes on to say “the evidence for this diagnosis and prognosis is evident from the history together with doctors’ reports that I have seen and all the radiographic evidence. It is also confirmed by my careful physical examination which shows that the patient is in no way contributing to her difficulties in moving her left shoulder but that these symptoms and signs are completely genuine”.

59 To this the appellant attempts to respond by saying that Ms Cameron was not a manual worker but employed all her life as a data processor and had management skills. However, the answer to that is to be found in the trial judge’s own conclusion at judgment Red, 70:

“the court must, however, recognise that the employment opportunities for people with such serious disabilities as those suffered by Ms Cameron are severely limited, both in the time since the end of 2002 and until the time she would otherwise have expected to cease working, which, I assume, would be age 65.”

60 Essentially what employers would be asked to do would be to employ someone in a management role whose capacity for even ancillary word-processing remained significantly constrained. Would-be employers would be likely to be in a position to employ others with management skills who were not so constrained and against whom Ms Cameron would be competing in the labour market. That factor would be likely to be exacerbated, when over time Ms Cameron had to compete with younger and younger people with the requisite competencies. All that is just commonsense. The trial judge did find that the respondent could undertake some supervisory work which did not involve the use of her left arm other than to hold light items or steady objects. But this was with the important caveat that this would be for no more than three hours per day, three days per week, with the prospect of improvement in her pain management being limited to four days per week.

61 At Black T, 123.46 she was asked “Why were you still only working two days a week?” in the period after she had returned to work in December 2002. She replied “because of the pain in both shoulders”. Then follows this question and answer:

“Q. Do you say you couldn’t turn up five days a week for three hours a day to do this job?

A. Yes.

Q. Why not?

A. Because of the pain in my shoulders.

.....

Q. Did you make any effort to increase your hours beyond three?

A. Yes I tried to see if I would be able to handle it but I didn’t feel that I could.

Q. Well did you actually try four hours?

A. No.

Q. Or five or six?

A. No.”

62 Clearly the trial judge accepted Ms Cameron as a witness of credit in her own case, affirmed by there being nothing in the video which would detract from that. That evidence supported the conclusion as to her future work capacity reached by the trial judge.

Conclusion

63 While it might be thought that 80% incapacity was on the high side, I am satisfied that there is no basis for concluding that the trial judge’s finding in that regard was outside an acceptable range so as to justify any appellate intervention. Accordingly, the trial judge’s assessment of future loss of earning capacity has not been shown to be in error. Appeal ground 1 should therefore fail.

Domestic assistance – past and future

64 I shall deal with past domestic care first, though only for what light it throws on future domestic assistance, as only the latter remains in dispute.

65 The trial judge assessed past domestic assistance as amounting to 19 hours per week for a six week period after the respondent’s surgery in an amount of seven hours per week (ie one hour per day) for the period 1 November 2000 to 27 February 2004 (less the six week period at the higher level of care).

66 The trial judge essentially accepted the assessment of Ms Cameron’s need for domestic care made by two experts jointly. In the first part of the report, Ms Rorke assessed her domestic and personal care needs. In the second part of the report Ms Andrews (Blue, 361) assesses the commercial cost for her care needs. Indeed the trial judge took a lower figure than Ms Andrews whose calculation is $26.42 per hour (Blue, 363J) whereas the trial judge uses $25 per hour. Moreover, Appendix 1 to Ms Rorke’s report calculated the extent of needed domestic assistance from after 26 October 2000 to 2 October 2001 and from 27 December 2001 to the present and into the future at 8½ hours per week plus spring cleaning/house maintenance. There was an earlier calculation of Ms Cameron’s domestic assistance needs immediately post-accident, that is to say from 11 October 2000 and 25 October 2000 and post-surgery from 3 October 2001 to 26 December 2001 (approximately six weeks). That estimate was “19 hours per week plus spring cleaning/house maintenance, banking, bill payments and shopping”.

67 The trial judge drew on that assessment of the need for domestic assistance of 8½ hours per week plus spring cleaning and house maintenance, substituting a lower total of seven hours per week.

68 If the s151K statutory rate were substituted, an agreed calculation for its effect first for the six week period referred to above would substitute $18.81 per hour for the $25 per hour applied by the trial judge. That produces $2,075.52 representing only a $774 difference from the higher figure applied by the trial judge. So small a difference should in my view be considered de minimis.

69 Taking then the period from the end of mid-November 2001 to the date of the trial in February 2004, it was again agreed that the s151K rate would be $18.59 per hour. If one were to accept the seven hours per week estimated by the trial judge as correct for that period, this produces an award of $21,653.63 as against the trial judge’s calculation of $25 per hour which produces a figure of $29,120. The difference in round terms is $7,466.

70 To complete the calculation for the future care, again accepting for present purposes, seven hours per week from the date of trial, the statutory rate of $19.84 per hour would produce a total of $134,241.41 whereas the trial judge’s assessment using a commercial rate of $25 would produce $169,155, a difference in present value terms of $34,913.

71 The respondent gave evidence that initially during the six weeks that she couldn’t look after the house, “my husband had to take up extra duties, plus I also had my mother, and mother-in-law come and help, plus I had also asked a cleaning lady to come and clean my kitchen and bathroom” (Black T, 61.39). When asked who paid for it she replied that she had done so out of her own pocket (Black T, 61.52). Her husband was at that time still working.

72 She describes her husband’s role in helping her dress, and cooking (Black T, 62). She had two small children at that time aged 3½ and 8½ years old respectively. She explains that she needed her mother-in-law or her mother to help look after the children, a consideration which clearly bears upon their availability for cleaning tasks as compared to her clear preference to pay for them externally. Thus at Black T, 81.7 and following she said:

“Q. If you are uninjured?

A. I would rather be able to do the bulk of it [the housework] myself.

Q. And if it has to be done by somebody other than you, would you rather have your mother and your mother-in-law, and so on doing it, or would, if you had the money, would you rather pay someone to do it?

A. I’d rather pay somebody.

Q. Are you paying somebody something at the moment, aren’t you?

A. I’m not anymore, but I was, ‘cause the lady I did have, had actually gone on to another job, so she couldn’t come anymore.”

73 She points out that the people concerned were being paid out of her own pocket. It would be hardly surprising that there would be a clear preference not to use family for housework if she were not constrained to do so. There is no suggestion that she objects to having outside people in her home for housekeeping help.

74 It has since been agreed between the parties that past domestic assistance should be assessed at $27,883.99 rather than $31,970 (see [40] above), a modest adjustment downward of $4,087.01. In those circumstances I would accept that adjustment but see no reason for making any further adjustment on that score to the figure for future domestic assistance to which I now turn.

75 Here the difference between the s151K rate and the commercial rate used by the trial judge does produce a significant difference, as earlier quantified at $34,913.59, accepting seven hours per week as reasonable.

76 Section 151K(7) does however qualify what proceeds. It presupposes that if evidence is adduced to the contrary, the court is then no longer required to assume that the value of the services is the maximum amount determined under the statutory formula, here that in subs (6). Evidence satisfying subs (7) was said to be found in both the Andrew’s report and in the questions concerning future care cited above, particularly the statement that Ms Cameron would rather pay somebody than have the services provided by her mother and mother-in-law. The question is whether that evidence suffices to displace the statutory formula in terms of s151K(7).

77 The appellant relies upon the decision of the Court of Appeal in Matchan v Lyons [2003] NSWCA 384; (2004) 40 MVR 466 in particular the reasons of Hodgson JA at [3]:

“[3] Section 72 does not place limits on compensation for paid domestic assistance, past or future; and paid domestic assistance can be the subject of compensation so long as it is reasonable to incur it and it is reasonable as to amount. In this respect, s72 is similar to s151K(1) of the Workers Compensation Act 1987. It is not necessary, under either provision, that there be an existing liability to pay for future services; and the tentative view to the contrary that I expressed in CSR Ltd v Clydesdale [2003] NSWCA 339 at [66] is I believe incorrect. However, the plaintiff must, in order to avoid the restrictions imposed by these sections in respect of future care, prove that he or she will actually incur liability to pay for services in the future.”

78 It is the appellant’s case that the respondent failed to prove that she would actually incur liability to pay for the relevant domestic services. I do not accept that contention. Her earlier evidence and commonsense bears out that if she did not have to meet those payments unaided out of her own pocket she would wish to pay for them externally rather than be obligated to family members. I would accept that the nature of the services she will require are of the kind and for the number of hours in the Rorke/Andrews’ report. Once one puts aside the supposedly incontrovertible evidence of the video and taking into account the very real limitations on her physical movements with its threat of affecting the right arm as well, (as confirmed in the medical reports), while the seven hours per week, though less than that recommended in the report, might be thought on the generous side, it is not such as to call for appellate intervention. Rather it is within the range of discretion available to the trial judge.

79 This, however, is subject to considering the possible application of the so-called give and take principle, where the appellant relies on what is said by Hodgson JA in Matchan v Lyons (supra) at [4]-[5]:

“[4] As regards unpaid domestic care, s72 imposes limits on what would otherwise be recoverable at general law. As to what is recoverable at general law, I adhere to what I said in Roads & Traffic Authority of NSW v Lolomanaia [2001] NSWCA 268; (2001) 34 MVR 249 at [45]- [50] as to the true effect of Van Girvan v Fenton [1992] HCA 54; (1992) 175 CLR 327. In my opinion, there should be no compensation in respect of domestic care that is given as part of the fair give and take of family life, although there may be compensation for the contingency that care may not be given this way in the future.

[5] In my opinion, a plaintiff seeking compensation for unpaid domestic care should prove what domestic tasks he or she previously did and does not now do, that this is due to the relevant injuries and disabilities, and that these tasks are now done for the plaintiff otherwise than as part of the fair give and take of family life.”

80 I should at this point refer to the evidence of Ms Cameron in cross-examination where she said she would have preferred if uninjured (Black T, 81.3).

“Q. Would you rather have people coming into to do the work for you, or do it yourself?

A. I’d rather ...

Q. If you were uninjured?

A. I would rather be able to do the bulk of it myself.”

81 Earlier, in referring to how her life compared with when she was uninjured and working, she agreed that their garden, never really a huge garden”, was “always something that my husband ... did ...” but that “every now and again, I would ... help” (Black T, 78.41).

82 However, quite apart from that evidence, in Van Gervan v Fenton [1992] HCA 54; (1991-92) 175 CLR 327 Mason CJ and Toohey and McHugh JJ first affirmed that plaintiffs’ damages are not to be determined by reference to the actual cost to the plaintiff of having care or services provided or by reference to the income foregone by the provider of the services, but, generally, by reference to the market cost of providing the services irrespective of whether they were provided gratuitously. But they went further:

“Moreover a plaintiff should be entitled to arrange his or her affairs in the way in which that person pleases and should not be constrained by monetary considerations from dispensing with gratuitous services and obtaining outside services if they are desired. Indeed, the relationship between the provider and the plaintiff may continue to exist in some cases only because outside help is able to be obtained.” (at 335)

83 I would with respect favour that approach over that put by Brennan J at 340-1:

“It is impossible to quantify with any pretence at precision the net benefit to an injured plaintiff of the company and minor services that he or she would have enjoyed by reason of the personal relationship between the plaintiff and the care provider or to put a value on the company and services which the plaintiff would have provided to the care provider by reason of their personal relationship if the plaintiff had not suffered the injury. In my view, the only way to take this factor into account is this: it is appropriate to omit from the list of services to be paid for by the defendant some of the time spent or some of the minor services rendered by the care provider to the plaintiff where those services would have been provided in any event as an incident of an antecedent personal relationship between them, provided the plaintiff is able to offer services to the care provider in return. If the plaintiff is unable to offer services to the care provider in return, but some pecuniary allowance would be fair compensation to the care provider for the plaintiff’s failure to do so, the plaintiff should recover as damages a capital sum representing that allowance - assuming that sum does not exceed the market value of those services provided to the plaintiff by the care provider. The allowance, if any, to be made in respect of this factor may not admit of precise calculation.”

84 With respect, a distinction based on whether a plaintiff does or does not offer services to the care provider in return is difficult to justify as the discrimen for whether such services may be the subject of post-accident compensation.

85 The principal judgment earlier quoted recognises that after a disabling injury it is not a simple matter of comparing the pre and post-position and simply extrapolating from one to the other. It recognises, for example, that the very fact of the disablement may place strains on the relationship between the family member who provided the gratuitous help pre-injury. This is often because post-injury, all sorts of other non-compensable help may be needed from a partner or others if only to allow for the difficulties of adjustment to a disabled state. Those difficulties were alluded to by Ms Cameron in her evidence. Thus at several points she refers to the strains on her marriage and her greatly diminished quality of life. Moreover, to expect in those circumstances that Ms Cameron who previously had an active working life, would in her enforced leisure undertake tasks that her spouse undertook pre-injury fails to take account of the realities of coping with a significant and debilitating injury. Give and take one may readily accept, but its outcome should not be looked on without regard to these considerations.

86 In the judgment of Mason P in Sullivan v Gordon [1999] NSWCA 338; (1999) 47 NSWLR 319 the Court of Appeal was looking at the domestic services that would have been performed by the plaintiff had he or she not been injured. Nonetheless, though not precisely analogous in point of factual circumstances, the reasoning of Mason P in particular is wholly consistent with looking in a more nuanced way at “the ebb and flow of circumstances that would have impacted upon the plaintiff apart from the tort” (at 323).

87 Finally, there is one potentially significant difference in s72 of the Motor Accidents Act as compared to s151K of the Workers’ Compensation Act. Subsection (1) of s72 sets out the objects of the section in a way that is not replicated in s151K. One of those objects is “to exclude claims where the services provided would have been rendered as a matter of course regardless of the relevant motor accident.” Such an object might lead to an interpretation of s72 that would mandate exclusion of any claim for services provided, say, by a husband prior to the injury and rendered as a matter of course regardless of that injury. That object does not find its counterpart in s151K.

Conclusion

88 Again, whilst on the generous side, I do not consider that the trial judge’s discretionary determination of allowance for future domestic assistance is outside the range of available discretion or warrants appellate intervention.

OVERALL CONCLUSION

89 Apart from the agreed amount for adjustment to the figure for past domestic assistance, I consider that there is no basis for disturbing the trial judge’s discretionary determination of damages in the respects challenged. I consider that the appeal should only succeed in respect of that small adjustment, that costs should nonetheless be paid by the appellant given the minor nature of the adjustment and propose the following orders:

ORDERS

(1) Appeal upheld in part, judgment below set aside and in lieu thereof, verdict and judgment to be substituted for the plaintiff in the sum of $689,605.56.

(2) The appellant to pay the respondent’s costs of the appeal.

90 M W CAMPBELL AJA: I agree with the reasons and orders of Santow JA.

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LAST UPDATED: 16/05/2005