Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Varga v Galea [2011] NSWCA 76
• Hearing dates: 15 March 2011
• Decision date: 04 April 2011
• Before: Beazley JA at [1]; McColl JA at [2]; Handley AJA at [86]

Decision

1. Appeal allowed with costs.

2. Set aside Order 1 in the verdict and judgment for the plaintiff entered on 12 May 2010;

3. In lieu of Order 1, substitute verdict and judgment for the appellant in the sum of $633,799 with effect from 22 March 2010;

4. Respondents to have a certificate under the Suitors Fund Act 1951 (NSW);

5. Cross appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: NEGLIGENCE - employer's liability - causation - employee working on top of wall while resting one foot on scissor lift - employee injured because of negligent operation of concrete pouring boom causing him to be thrown over wall from which metal bars protruding then falling to ground - no safety harness provided - no evidence whether in circumstances of the accident safety harness a reasonably practicable precaution - whether causation established -; CONTRIBUTION - joint or several tortfeasors - third party recovery from employer of injured worker - injured worker director and shareholder of employer company - s 151Z(2) Workers Compensation Act 1987 (NSW) -; DAMAGES - plaintiff with pre-existing condition - whether a contributing factor to continuing disability -; DAMAGES - non-economic loss - appellate review of assessment of percentage of "most extreme case" - s 16 Civil Liability Act 2002 (NSW) -; DAMAGES - non-economic loss - whether award excessive - relevance of plaintiff's age to assessment -; DAMAGES - gratuitous attendant care services - whether award excessive - s 15 Civil Liability Act 2002 (NSW)
• Legislation Cited: Civil Liability Act 2002 (NSW); Law Reform (Miscellaneous Provisions) Act 1946 (NSW); Motor Accidents Act 1988 (NSW); Suitors Fund Act 1951 (NSW); Workers Compensation Act 1987 (NSW)
• Cases Cited: Adeels Palace Pty Ltd v Moubarek [2009] HCA 48; (2009) 239 CLR 420; Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 44; (2004) 217 CLR 424; Australian Iron & Steel v Krstevski [1973] HCA 42; (1973) 128 CLR 666; Bressington v Commissioner for Railways (NSW) [1947] HCA 47; (1947) 75 CLR 339; Christalli v Cassar [1994] NSWCA 48; Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839; Dell v Dalton (1991) 23 NSWLR 528; General Cleaning Contractors Ltd v Christmas [1953] AC 180; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292; March v E & HM Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506; Marshall v Clarke (Court of Appeal, unreported, 5 July 1994); Moran v McMahon (1985) 3 NSWLR 700; Neill v NSW Fresh Food and Ice Pty Ltd [1963] HCA 4; (1963) 108 CLR 362; Purkess v Crittenden [1965] HCA 34; Reece v Reece (1994) 19 MVR 103; Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; (2005) 3 DDCR 1; Swain v Waverley Municipal Council [2005] HCA 4; 220 CLR 517; Thatcher v Charles [1961] HCA 5; (1961) 104 CLR 57; Vozza v Tooth & Co Limited [1964] HCA 29; (1964) 112 CLR; Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816; Watts v Rake [1960] HCA 58; (1960) 108 CLR 158; Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports 81 - 812; Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40; Zanner v Zanner [2010] NSWCA 343
• Texts Cited: The Liability of Employers, 2nd ed (1979) The Law Book Company Limited
• Category: Principal judgment
• Parties: Alex Varga - Appellant; Joseph Galea - First Respondent; Pauline Galea - Second Respondent
• Representation: Counsel: S Norton SC/MA Daley - Appellant; SG Campbell SC/ AB Parker - Respondents; Solicitors: Brydens Law Office - Appellant; Walker Hedges & Co - Respondents

Decision under appeal

• Citation: Varga v Galea
• Date of Decision: 2010-03-22 00:00:00
• Before: Balla DCJ

Judgment

1 BEAZLEY JA: I agree with McColl JA.

2 McCOLL JA: Alex Varga, the appellant, was injured on 2 July 2007 when working as a bricklayer on a building site. He claimed at trial that his injuries were caused by the negligence of an employee or agent of Joseph Galea and Pauline Galea, the respondents. The primary judge accepted that contention but found that the appellant had been guilty of contributory negligence and assessed his contribution in this respect at 25 per cent.

3 The appellant did not bring proceedings against his employer - Greystanes Bricklaying Pty Limited ("Greystanes"), a company of which he was the director and sole shareholder. The respondents contended successfully at trial before the primary judge, Balla DCJ, that the appellant was entitled to take proceedings independently of the Workers Compensation Act 1987 (NSW) (the "1987 Act") against his employer, that if he had done so they would have recovered contribution from that employer pursuant to s 5(1)(c), Law Reform (Miscellaneous Provisions) Act 1946 (NSW) (the "1946 Act"), to the extent of 25 per cent and, accordingly, that the appellant's damages should also be reduced by 25 per cent of the damages he would have recovered if assessed in accordance with Div 3, Part 5 of the 1987 Act: s 151Z(2), 1987 Act.

4 The primary judge found that the appellant sustained significant injuries in the fall and had ongoing incapacitating debilities in his lower back and left knee. He was 63 years of age at the time of trial. The respondents conceded he would never be able to return to the full-time workforce. There was also evidence, which the primary judge accepted, that the appellant had required eight hours a week assistance after an initial ten week period after his accident during which he was wearing a spinal brace and would need such assistance for the rest of his life. Her Honour assessed the appellant's damages, pursuant to the Civil Liability Act 2002 (NSW) (the "2002 Act") and at common law at $633,799. By reason of the primary judge's finding in respect of s 151Z(2), however, the appellant was entitled only to 75 per cent of that sum, being $475,349 and 25 per cent of his damages calculated, as I have said, pursuant to Div 3, Part 5 of the 1987 Act, $91,247 which equalled $22,801. Accordingly, prior to any deduction for his contributory negligence, the appellant's damages were $498,160. After deduction for his contributory negligence of 25 per cent, verdict and judgment was entered in his favour in the sum of $373,620 plus costs.

5 The appellant challenges the deductions of 25 per cent pursuant to s 151Z and 25 per cent for contributory negligence.

6 The respondents cross-appealed challenging the primary judge's award of damages.

Legislative framework

7 The appellant's case against the respondents was governed by the 2002 Act. Section 5B governed the issue of whether the respondents breached the duty of care they owed the appellant.

8 It seems that the common law principles of negligence governed the determination of Greystanes' liability to contribute, in this case as a concurrent tortfeasor, to the damages the respondents were found liable to pay to the appellant: s 5(1)(c), 1946 Act. This is because the 2002 Act does not apply to "civil liability relating to an award to which Division 3 of Part 5 of the [1987 Act] applies": s 3B(1)(f), 2002 Act. In a s 151Z(2) case, the damages the third party is entitled to recover from the employer are to be determined as if the whole of the damages were assessed in accordance with Division 3, Part 5 of the 1987 Act: s 151Z(2)(d), 1987 Act. These are tentative views only. The point was not debated. In any event, s 5B sets out the common law test for breach of duty enunciated by Mason P in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 (at 47 - 48): Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports 81 - 812 (at [27], [45]) per Ipp JA (Spigelman CJ and Tobias JA agreeing).

9 The issue of causation, to the extent the case was governed by the 2002 Act, required a determination that "the negligence was a necessary condition of the harm": s 5D(1), 2002 Act. That required the application of the "but for" test of causation: Adeels Palace Pty Ltd v Moubarek [2009] HCA 48; (2009) 239 CLR 420 (at [45]). The statutory content of s 5D, and the extent of any continuity with the common law, awaits judicial elucidation: Zanner v Zanner [2010] NSWCA 343 (at [11]) per Allsop P (Young JA agreeing). At common law, causation is a question of fact, to be approached in a commonsense manner, in which the "but for" test plays an important role: March v E & HM Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 (at 5l5 - 546) per Mason CJ (Toohey and Gaudron JJ agreeing).

10 Section 5E of the 2002 Act provides that in determining liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to causation. I would understand "plaintiff" to be read as meaning, where appropriate, the party propounding the issue of negligence, in this case, the respondents. This is made clear, insofar as the issue of contributory negligence is concerned, by s 5R of the 2002 Act.

Statement of the case

11 There was controversy at the trial as to the circumstances in which the appellant was injured which her Honour resolved in his favour in a manner not challenged on appeal. Her Honour found the following facts which were not challenged on appeal:

"1. On 2 July 2007 the plaintiff was employed by Greystanes Bricklaying Pty Limited. He was the director and sole shareholder of that company.

2. In the course of his employment the plaintiff was undertaking bricklaying work, which included filling a Besser block wall with concrete, at a building site in Powers Road, Plumpton.

3. The head contractor, Portville Developments Pty Limited, was building 21 factory units. Both Greystanes Bricklaying Pty Limited and the defendants had entered into sub contracting arrangements to undertake certain work at that building site.

4. Portville Developments Pty Limited maintained a presence on site. It had one, and sometimes two, representatives on site as surveyors.

5. Immediately before his injury the plaintiff gained access to the top of a 4.6 metre Besser block wall by using the scissor lift which I have already described. He was holding a rubber hose and pouring concrete from the hose into the Besser blocks. The platform of the scissor lift was about 730 mm below the top of the Besser block wall. The railing around the platform of the scissor lift was at approximately the same height as the top of the Besser block wall. While he was working the plaintiff was standing with his right foot on the scissor lift railing and his left foot on top of the Besser block wall.

6. Pieces of reinforcing steel (starter bars) were protruding through the centre of the Besser blocks. They were of uneven lengths. On average they protruded 1.2 metres above the top of the Besser block wall. The plaintiff placed his left foot between the starter bars while he was working.

7. The boom controlling the rubber hose was being operated by Mr Callum. On the balance of probabilities, as a result of his operation of the control panel, the boom extended causing the plaintiff to initially be projected upwards so that he was over the top of the starter bars and then out over the neighbouring property.

8. When the plaintiff could not hold on to the hose any longer he fell to the ground."

12 Her Honour had described the scissor lift to which she referred in [5] of her findings briefly as follows:

"Portville Developments Pty Ltd had arranged for the plaintiff to gain access to the top of the wall by using a scissor lift. The control panel for raising, lowering and moving the scissor lift was operated from the scissor lift platform. There was a double railing around the platform."

13 The primary judge identified the respondent's allegations of the appellant's contributory negligence as having b een:

" he did not wear a harness;

he did not do the work from inside the scissor lift;

he did not let go of the hose when he initially felt it move;

failure to work from scissor lift platform or scaffolding."

14 The primary focus of the judg e's consideration of the contributory negligence issue went to the appellant's failure to wear a harness. Her Honour rejected the respondents' contention that the appellant could have done the work from the scissor lift platform or from scaffolding. She found, however, that "there would have been some part of the scissor lift structure to which a harness could have been attached." She also found that the manner in which the appellant chose to work was "clearly very dangerous [as] [h]e was standing unrestrained at a significant height above the ground in what could only be described as a precarious position while concentrating on his work." Having so found, her Honour held that the respondents had shown that the appellant had failed to take reasonable care by working in that position while not wearing a harness.

15 Her Honour recorded the appellant's counsel's submission, and the respondent's counsel's concession, that the respondents bore the onus of proving that the appellant's damages would have been avoided, or been less severe, if he had worn a harness. She then said:

"The plaintiff says if he had been wearing a harness he could have died or been more badly injured. Firstly the harness could have been caught up in some manner so that he was crushed. Secondly if the harness had engaged after he had been projected upwards above the starter bars he would have been pulled down and impaled in all likelihood on the starter bars.

I do not accept this submission. I am satisfied that a properly adjusted harness with a safety line would not have become caught up with any of the objects around the plaintiff at the time and that the line would not have extended more than 1.2 metres so that the plaintiff would never have been projected above the starter bars. I am satisfied that on the balance of probabilities the plaintiff would not have sustained any significant injury or would have sustained much less serious injuries if he had been wearing a properly adjusted safety harness as he would not have fallen five metres to the ground."

16 After briefly noting the principles by which contributory negligence is assessed, the primary judge determined the appellant's contributory negligence to have been, as I have said, 25 per cent.

17 Turning to s 151Z of the 1987 Act, the primary judge concluded that Greystanes had been negligent in failing to take all reasonable steps to ensure that the appellant wore a harness when he was working on the top of a wall. Having so found, her Honour assessed Greystanes' contribution based on the appellant not wearing a harness at 25 percent.

18 There was no controversy on appeal that it was open to the primary judge to conclude that the appellant's negligence could not be equated with Greystanes' negligence, even when he was the sole director and shareholder of that company: Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 44; (2004) 217 CLR 424. Rather, the appellant challenged the proposition that his and Greystanes' liability should be coterminous.

19 The appellant's primary submission however was that there was no evidence from which the primary judge could have been satisfied that there was some part of the scissor lift to which a harness could have been attached, nor that a properly adjusted harness would have reduced, or prevented, his injuries. This was a causation argument which, it was accepted in argument on appeal, went both to the issue of the appellant's contributory negligence and to Greystanes' liability in negligence for the purpose of s 151Z.

20 There was no expert evidence concerning a safety harness. There was no evidence of the features of the sort of safety harness the respondents contended Greystanes should have provided, how it might function and, in particular, how it might function in the circumstances of this accident. The entirety of the evidence as to the use of a harness came from the cross-examination of the appellant and a Mr Watson, who was also working in the scissor lift at the time of the accident. The appellant's evidence was as follows:

"Q. You have your harness there, you could have attached your harness to the rail?

A. We were thinking about the harness but there was no proper place to put the harness on. It was just too dangerous - I couldn't put the harness on the boom.

Q. I am not talking about the boom I am saying you could have attached it to the rail of the scissor lift?

A. I probably could have attached it to the rail of the scissor lift, but if the same things would occur that it did [sic, as in original], I probably would be dead today.

Q. See if you attached your harness to the rail of the scissor lift you could have easily let go of the hose you were talking about and not gone anywhere?

A. No it's not. I didn't have a time to let go of the hose, regardless if I had two harnesses on, it just happened in a split second, and happened at such a speed that I didn't know what was - what hit me.

Q. If you had two harnesses on they would have restrained you and the hose would have gone through your hands?

A. I don't know, I'm not an expert at this. I don't know what would have happened.

21 In response to the suggestion to the appellant that if he had to get out of the scissor lift to perform the work he should have had a safety harness on, he replied:

"A. At the time I - there nowhere to put a harness. I couldn't put a harness on the boom. In my experience it was too dangerous to put it in the scissor lift ...

Q. So you have used the harness before in a scissor lift?

A. No.

Q. What's the experience you're talking about?

A. Because I haven't used it before, I don't know if it's inappropriate to put a harness in the scissor lift.

Q. But you've no experience to fall back on, have you?

A. I was using harness on different occasion and different type of work, not on the wall, on the boom pump like this we never used the harness so with the scissor lift the scaffold went out.

Q. But you as an experienced worker and managing director of this company, you should know that if you had to get out of the scissor lift at that height, you should have a harness on, shouldn't you?

A. There was inappropriate where to put the harness, where to put the harness on was --

Q. If you had seen Mr Watson trying to get out of the scissor lift at that height without a harness, you would have stopped him?

A. I probably would have, but Mr Watson was just a labourer. He wasn't ... experienced in this type of work.

...

Q. ... it was dangerous for you

A. It probably was, but I had a lot of years of experience and Mr Watson hasn't. That's why the scissor lift there, for protection, for safety."

22 Mr Watson gave the following evidence:

"Q. Well, have you heard of harnesses?

A. Yes I have, when you're on a roof.

Q. You also have them where you have places where you can fall, is that correct? Just apart from a roof?

A. Yes, but I've never seen anyone use it bar on a roof."

Appeal: consideration

23 It is convenient to commence consideration of the causation issue by determining whether the respondents established that Greystanes breached its duty of care to the appellant and, in particular, whether that negligence was a cause of his injuries. If that question is answered in the negative, he cannot have been guilty of the contributory negligence for which the respondents contended, and the primary judge accepted, in failing to wear a safety harness.

24 For the purposes of the s 151Z exercise, as I have said, the respondents bore the legal and evidentiary burden of establishing that Greystanes had breached its duty of care to the appellant. They had to demonstrate first, as was uncontroversial, that there was a reasonably foreseeable risk of injury to the appellant in his manner of performing the task he was undertaking. Secondly, they had to prove that Greystanes failed to take reasonable care to avoid that risk because it failed to devise a method of operation for the performance of the task that eliminated the risk, or failed to provided adequate safeguards: Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839 (at [12]) .

25 The respondents' case at trial was that Greystanes failed to provide adequate safeguards in the form of a safety harness. To establish that proposition, they had to be able to establish that a safety harness was a reasonably practicable precaution or alternative course of conduct, use of which would have avoided, or reduced the consequences of, the injury the appellant suffered: Neill v NSW Fresh Food and Ice Pty Ltd [1963] HCA 4; (1963) 108 CLR 362 (at 364) per Dixon CJ, (at 369 - 370) per Taylor and Owen JJ; Vozza v Tooth & Co Limited [1964] HCA 29; (1964) 112 CLR 316 (at 319) per Windeyer J (with whom the other members of the Court agreed); see also Australian Iron & Steel v Krstevski [1973] HCA 42; (1973) 128 CLR 666. A practicable alternative will not be shown if it exposes the plaintiff to risks of a different, but equally dangerous, kind: Glass, McHugh and Douglas, The Liability of Employers , 2 nd ed (1979) The Law Book Company Limited (at 33).

26 Evidence of the practicability of a proposed alternative course or safeguard "is essential except to the extent that [it is] within the common knowledge of the ordinary man": Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292 (at 293) per Barwick CJ; see also Neill (at 369 - 370); Vozza (at 321 - 322). A mere allegation that a precaution is practicable is insufficient where the evaluation of whether or not the precaution is practicable involves issues of technical knowledge and experience: Swain v Waverley Municipal Council [2005] HCA 4; 220 CLR 517 (at [45]) per McHugh J, citing Bressington v Commissioner for Railways (NSW) [1947] HCA 47; (1947) 75 CLR 339 (at 348) per Latham CJ. Absent such evidence, or an ability to have recourse to common knowledge, it will merely be a matter of conjecture whether suggested precautions would be practicable or not: Neill (at 365) per Kitto J.

27 The primary judge appears to have approached the question of causation by deducing that the appellant could have been provided with a safety harness with a safety line, that such a harness could have been secured to the scissor lift railing and that by wearing it the appellant would not have been injured in the circumstances of this accident, in particular, that he would not have been impaled on the starter bars protruding from the Besser blocks into which the concrete was being poured. In my view this approach was not open to her Honour.

28 First, the evidence about whether a safety harness could have been attached to the scissor lift railing was confusing. The appellant said on several occasions that there was nowhere to put a safety harness, evidence which contradicted his evidence that a safety harness could be attached. Moreover, he gave evidence that it was dangerous to use a safety harness in a scissor lift.

29 Secondly, even assuming that a safety harness could have been attached in some manner to the scissor lift, whether such a device might have prevented the appellant being injured, or even reduced the risk of injury was a matter of speculation.

30 It might in some cases be a matter of common sense to infer that a safety harness will prevent injury to a person at risk of falling from a height. However, as General Cleaning Contractors Ltd v Christmas [1953] AC 180 illustrates, even in what appears to be such a case, evidence will be required of the reasonable practicality of the safety measures proposed. In that case, the plaintiff, a window cleaner, fell from the windowsill on which he was working when the sash of the window that he was holding to prevent him falling closed on his fingers causing him to lose his grip. The general system of work was to permit window cleaners to clean windows while standing on the window sill. The plaintiff led some evidence about alternative systems of work, such as the use of safety belts and hooks or ladders, but that evidence did not establish their practicability for general use. Lord Tucker (at 198) expressed the view that even in such circumstances "it should be clearly established by evidence that some other and safer system is reasonably practicable and that its adoption would have obviated the particular accident which has occasioned damage to the plaintiff."

31 The appellant's accident was unusual. He was first elevated into the air above the scissor lift (counsel for the respondents decried the use of the word "catapulted", although that is the sense of the appellant's evidence) in a trajectory which took him over a series of spear-like metal bars protruding up to 1.2 metres above the Besser block wall. How a safety harness might have operated in those circumstances was not a matter of commonsense. It required a technical explanation of the nature of safety harnesses, where one might have been safely attached to the scissor lift, and how it would have functioned in these circumstances. In the absence of such evidence it was not, in my view, open to the primary judge to conclude that the respondents had established that Greystanes was guilty of negligence which was a cause of the appellant's injury in failing to provide a harness. Her Honour erred in so doing. Absent that finding, the respondents' case of contributory negligence ipso facto also failed.

32 I would allow the appeal.

Cross appeal - quantum

33 The appellant described his fall as follows:

"I had time to think. I knew I was going to fall. I had time to think which way I was going to let myself go because I couldn't hold on any longer. So I thought oh well I'll land on my feet and hope for the best to see what will happen. So I did which the ground was uneven so my left foot came down first then I went strongly on my back."

34 The appellant was taken by ambulance to hospital. He sustained a burst fracture of the L1 vertical body causing a 30 per cent loss of height centrally. He also sustained injuries at T12, T10 and L2. He was in hospital for 11 days. He was fitted with a special spinal support which the primary judge described as "completely covering his body." He wore the support for about three months. At the time of trial he still suffered from low back pain. The respondents conceded that he had sustained a substantial injury to his back.

35 The appellant also claimed damages for injuries and disabilities associated with his left knee and with a hernia. The respondents disputed that those conditions were causally related to the accident.

36 The evidence disclosed that the appellant had consulted a doctor in 2002 for pain in his left knee following a fall. He underwent a radiological investigation in August 2001 which showed slight narrowing of the medial joint space compartment and small osteophytes on the medial condyle. He underwent an arthroscopic meniscectomy on 1 October 2002. In November 2002 a doctor noted that his knee was much better.

37 Having recited that evidence the primary judge said she was not persuaded that the respondents had shown the preceding left knee condition was of any relevance to the appellant's left knee condition following the fall. She was satisfied that his ongoing condition was a result of the accident. In reaching this conclusion her Honour accepted evidence from the appellant, his partner and a co-worker to the effect that he was fully fit for the heavy duties of a bricklayer in the years leading up to the accident, that there had been no evidence of any complaint of left knee pain in the three years before the accident and that the hospital notes following the accident recorded early complaint of left knee pain. Her Honour also took into account a medical report from the appellant's orthopaedic surgeon, Dr Michael Johnson, who had treated the appellant's left knee both before and after the accident. Dr Johnson recorded that in March 2009 the appellant explained the nature of his accident, and said he had "been complaining of his [left] knee ever since but no-one had taken much notice of it." On examination the appellant had patello-femoral crepitus, joint line tenderness both medially and laterally and a trace of fluid on his left knee - pathology which he described as compatible with the mechanism of the appellant's 2007 fall. Dr Johnson performed an arthroscopic meniscectomy, osteochondroplasty drilling and synovectomy of the appellant's left knee in June 2009. He found a torn medial meniscus which was resected as well as articular cartilage damage which he debrided and drilled. He again advised that the pathology was compatible with the 2007 injury. The primary judge accepted that opinion. Counsel for the respondents in this Court accepted that the torn medial meniscus was caused by the accident.

38 The primary judge found that the appellant had a significant incapacity as a result of the injury to his left knee. Before the 2009 procedure he was hardly able to move his left knee. At the time of trial he walked with a limp, could not kneel on the point of his left knee and found it hard to crouch or squat. The primary judge accepted his evidence that his left knee ached constantly.

39 A few months after his 2007 accident the appellant said he noticed pain in his groin. On review by a surgeon in late 2008 he was observed to have bilateral herniae. Those were surgically repaired in April 2009. The primary judge accepted the opinion of his surgeon that the herniae were related to the fall. The appellant said that after the hernia operation the pain in his groin had resolved.

40 The primary judge found that the appellant had sustained significant injuries in his fall. Before his accident he had been "a very active, happy man who not only engaged in heavy work but enjoyed dancing and walking". As a result of what her Honour found to be his ongoing incapacitating disabilities in his lower back and left knee he could no longer engage in those activities. He generally moved more slowly. Her Honour also accepted that his inability to return to his full pre-accident work had caused him to become depressed and withdrawn. She accepted that it was likely that the condition of his left knee would deteriorate over time.

41 Her Honour assessed the appellant's non-economic loss at 40 per cent of a most extreme case: s 16, 2002 Act.

42 Insofar as past economic loss was concerned, the evidence disclosed that the appellant had always worked in the building trade except for a period in the service station industry in the 1970's and the 1980's. He had been working as a bricklayer for over 20 years. In 2002 he became an employee and director of Greystanes. He had not been able to do other than intermittent light work since the accident.

43 The appellant's tax returns showed his gross annual income as $27,000 (financial year ending 30 June 2004), $27,000 (financial year ending 30 June 2005), $38,000 (financial year ending 30 June 2006), $5,000 (financial year ending 30 June 2007) and $6,000 (financial year ending 30 June 2008). There was no evidence as to why his income had been reduced in the year before the accident. Counsel for the respondents conceded at trial that the appellant had been earning $500 a week before the accident. There was a submission about his actual earnings not including some unpaid work he had done for friends from time to time - the object of which did not clearly emerge from the judgment. However making allowance for that unpaid work, the primary judge awarded the appellant $45,000 for past economic loss.

44 The respondents conceded at trial that the appellant would never return to full-time work as a bricklayer. He was 61 at the time of trial. The primary judge allowed him future economic loss to age 67 and found he had some residual earning capacity. Her Honour considered that it was appropriate to award the appellant $350 net per week, the same allowance she had made for past economic loss, to age 67 which, with a reduction of 15 per cent for vicissitudes and calculated on the five per cent tables amounted to $49,861.

45 It was common ground that the appellant required a significant level of assistance from his partner, Ms Klemens, after his discharge from hospital for a period of about ten weeks. Thereafter the appellant claimed eight hours a week for gratuitous attendant care services: s 15, 2002 Act. The eight hours a week was based on Ms Klemens' evidence that that was the extra period of time she was working inside and outside the house doing tasks she had taken over from the appellant since the accident.

46 Her Honour allowed ten weeks full-time care and eight hours a week thereafter to the date of judgment - an amount of $31,143.

47 It was not suggested by the respondents that the appellant's disabilities would improve. Accordingly, the primary judge was satisfied that he would continue to need eight hours assistance a week for the rest of his life. Her Honour also accepted that in the future the appellant would pay someone to do those tasks. The parties agreed that the reasonable cost of a cleaner was $38 per hour. Her Honour allowed the appellant eight hours a week assistance for the rest of his life for future attendant care which amounted to $213,955.

Submissions: cross-appeal

48 The respondents challenged the primary judge's awards for non-economic loss, past and future economic loss and past and future attendant care. Their primary submission was that all heads of damages should be reduced substantially because of what the appellant's prior left knee injury the effect of which, they contended, would have reduced the appellant's earning capacity as well as his need for domestic assistance and, further, would have led to him incurring out-of-pocket expenses even if the accident had not occurred. They contended that the effect of that condition on those heads of damage had to be weighed in the assessment of the damages arising from the accident in accordance with Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; (2005) 3 DDCR 1 (at [103] - [111]).

49 The respondents undertook a detailed examination of the medical evidence to make good their submission about the respondent's left knee condition.

50 The respondents contended that independently of that submission, each of the challenged heads of damages should be reduced for the following independent reasons. First, that the award of 40 per cent for non-economic loss for a person of the appellant's age was excessive: Reece v Reece (1994) 19 MVR 103. Secondly, that the award of past economic loss was excessive having regard to the fact the appellant's actual earnings for the financial year ending prior to the accident was $5,000 gross. While they accepted that they had conceded at trial that the appellant was earning $500 at the time of the accident, they contended that that concession did not relate to all prior or subsequent periods. Thirdly, they contended that the assessment of the appellant's economic incapacity and requirement for attendant care was inconsistent with statements the appellant made to doctors concerning his ability to carry out normal activities. Finally, they also contended that the award of damages in respect of attendant care was inconsistent with the appellant's medical evidence.

51 A defendant who alleges that a plaintiff suffered from a pre-existing condition which may have had an adverse impact on his or her future whether or not the immediate injury in question had occurred, bears an evidential burden to show that the plaintiff's condition would have deteriorated in any event regardless of the accident: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 (at 160); see also Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 (at 168). As Ipp JA explained in Seltsam Pty Ltd v Ghaleb in a passage upon which the respondent relied, the effect of the High Court's decision in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 is that because the issue involves "hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring ... the Court is required to evaluate possibilities ... not proof on the balance of probabilities." (emphasis in original) : Seltsam (at [105]). Ipp JA then said:

"107 Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the defendant's negligence. A pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation.

108 As was pointed out in Newell v Lucas [1964-5] NSWR 1597 (at 1601 per Walsh J, with whose judgment Hardie and Asprey JJ agreed), the court must determine whether a comparison may be made between the plaintiff's condition prior to the injuries sustained by the defendant's negligence (including the plaintiff's economic and other prospects in that condition) and the plaintiff's condition and prospects after the injuries. Nothing in Watts v Rake and Purkess v Crittenden precludes the judge from carrying out this exercise.

109 Of course, if the evidence does not adequately establish the pre-existing condition or its possible consequences ... it would not be possible to carry out such a comparison and assessment. In regard to the possible consequences, a scintilla of evidence would not suffice. The evidence must be such that a reasonable person could draw from it the inference that the possible consequences contended for by the defendant existed (see McCormick, Evidence , 5th ed, para 338, p511)."

52 The respondent complained that the primary judge could not resolve the issue as to the appellant's left knee merely by stating she accepted the appellant and Dr Johnson. Rather, her Honour had to deal explicitly with the evidence they had advanced on the issue. They complained that by failing to do so the primary judge had committed an error in fact-finding: Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 (at [130]) per Hayne J (McHugh and Gummow JJ agreeing).

The appellant's left knee

53 In September 2002 the appellant attended his general practitioner, Dr Mar, complaining of an injury to his left knee. A torn medial meniscus was diagnosed. He was referred to Dr Johnson who performed an arthroscopy. He was off work for four weeks then returned to his full duties as a bricklayer.

54 I have referred to the evidence the primary judge accepted in reaching her conclusion about the relationship between the appellant's left knee condition and his accident. That evidence should be amplified as follows.

55 The physiotherapy notes of 9 July 2007 prepared while the appellant was still in hospital noted that he reported left knee pain. On 10 July 2007 the physiotherapy notes recorded that the appellant complained of left knee pain in the anterolateral aspect on weight bearing. This was the last record of a complaint by the appellant about his left knee until he visited Dr Johnson in March 2009.

56 At trial the appellant said he had complained to the doctor at Westmead Hospital about his left knee on every occasion he went in for a check-up. He said "they keep telling me in many occasion that it is all part of my injury of my back ...".

57 The respondents relied upon two propositions to seek to make good their Watts v Rake submission. The first was the absence of any reference to a significant knee injury in the appellant's discharge summary. They also relied upon the fact that there was no reference to the appellant's knee in the statement of claim filed on 29 April 2008. (It is not entirely clear when such a reference was included. There were references to the appellant's left knee in the second further amended statement of particulars filed on 25 September 2009 and it appears that those references had been in an earlier document as the underlined - and presumably new particulars - did not relate to his left knee, but to the development of thrombosis following the surgery to his left knee). They point to the fact that the appellant made no complaint about his left knee when seen by Dr Sanki in April 2009 - a referral which appears to have been for the purpose of exploring the reason for the appellant's complaint of upper abdominal pain which Dr Sanki diagnosed as a right and left sided hernia. Similarly the appellant did not complain to Dr Ellis whom he saw on two occasions, once in July 2008 and again in February 2009.

58 That submission is accurate insofar as Dr Ellis's 16 July 2008 report is concerned. That report recorded the previous injury to the appellant's left knee which Dr Ellis described as a "torn ligament, which required reconstruction and he recovered uneventfully". Dr Ellis re-examined the appellant on 24 February 2009. On that occasion, Dr Ellis recorded the appellant as complaining of lower back pain which spread to the back of both legs and was, at that stage, affecting predominantly the left leg. Dr Ellis recorded that the appellant walked with a limp due to pain in his left leg. The respondents were careful to point out that while Dr Ellis recorded the appellant as complaining of pain in his left leg, he did not locate it to his left knee. However, Dr Ellis saw the appellant again in October 2009. By that stage Dr Johnson had operated on the appellant's left knee. In his report of 3 November 2009 Dr Ellis recorded that the appellant had injured his left knee in the 2007 accident and recorded the operation Dr Johnson had performed. Dr Ellis referred to an MRI examination of the appellant's left knee in October 2009. The respondents did not submit that anything turned on that MRI examination. Dr Ellis also referred to the appellant's previous left knee injury recording that he had recovered after the operation performed in 2002 and that his left knee had been asymptomatic before the 2007 accident. Dr Ellis expressed the opinion that the appellant's left knee had been severely injured in the 2007 fall.

59 The respondents' principal submission relied upon a report prepared by Dr Oakeshott for medico-legal purposes in September 2009. Dr Oakeshott did not review any radiology reports, nor was there any documentation available to him indicating that the appellant had complained of, or received any treatment for a left knee injury while he was in hospital after the 2007 accident. Dr Oakeshott said he could not identify any documents indicating the appellant had had treatment, or complained about, his left knee during 2007 and 2008. The appellant told Dr Oakeshott about the injury to his left knee in 2002. Dr Oakeshott had no documents about that injury or the operative procedure which was performed. Dr Oakeshott did have Dr Johnson's 23 March and 3 June 2009 reports to Dr Mar. Neither of those reports, as Dr Oakeshott observed, referred to the 2002 left knee injury or operation.

60 Dr Oakeshott expressed the following opinion:

"Mr Varga has significant degenerative changes in the left knee. For the reasons discussed above I consider that his present left knee condition is related to the reconstructive surgery that was required in 2002 to that knee.

The timing of his re-referral to Dr Johnson in March 2009 is consistent with the development of degenerative changes following the left knee injury and surgery that had occurred in 2002.

It is to be noted that there is no available evidence of any investigations or medical treatment of his left knee immediately following the injury on 2 July 2007 and following his return to work in November 2007.

I therefore consider that the requirement for a total knee replacement with which I agree is not related to any work-related injury that could be attributed to the incident on 2 July 2007."

61 Dr Oakeshott accepted that the appellant had significant degenerative changes in his left knee and would require a total knee replacement.

62 In their written submissions the respondents contended that Dr Oakeshott had provided "a cogent opinion as to why the condition of the left knee could not be related to the fall". The passage of Dr Oakeshott's report to which that submission referred was that part of the report in which Dr Oakeshott said he could not identify any documents recording medical treatment or complaint about the appellant's left knee during 2007 and 2008 and references to Dr Ellis' 16 July 2008 and 2 March 2009 reports.

63 The difficulty with the respondents' submissions are twofold. First, Dr Oakeshott did not see the hospital notes recording that the appellant had complained about his left knee immediately after his fall in 2007 and while still in hospital. Secondly, the appellant gave evidence which the primary judge was entitled to accept that he had complained to medical practitioners about his left knee during 2007 and 2008 but that medical practitioners had tended to link that pain to his back condition. Thirdly, Dr Oakeshott did not refer to Dr Ellis' November 2009 report. In that report, as I have said, Dr Ellis accepted that the appellant had injured his left knee on 2 July 2007 leading to the operative procedures Dr Johnson undertook in June 2009. Dr Ellis had no difficulty attributing the appellant's left knee condition to the 2 July 2007 fall. In this respect it will be noted that Dr Ellis examined radiological reports, which, I as have noted, Dr Oakeshott did not do.

64 In my view, contrary to the respondents' submissions, Dr Oakeshott's opinion was not soundly based in fact. It did not demonstrate that the appellant's left knee condition could not be related to the fall. He provided no ratiocination which demonstrated why, in his view, the timing of the appellant's referral to Dr Johnson in March 2009 was consistent with the development of degenerative changes following the 2002 injury, rather than the 2007 injury. His report does not explain why the absence, according to him, of complaint by the appellant following the 2007 accident made it even a possibility that the symptoms which developed in 2009 were related to the 2002 condition.

65 In my view, the respondents failed to demonstrate error in a manner entitling the Court to carry out the comparison and assessment exercise to which Ipp JA referred in Seltsam Pty Ltd v Ghaleb (at [108] - [109]).

66 The respondents also submitted that Dr Edwards had provided a "logical opinion rejecting the relationship between the herniae and the fall". Dr Edwards did not consider the herniae could reasonably be said to be related to the appellant's fall because had they been sustained as a result of that fall "the complaints of abdominal pain would have occurred in closer temporal relationship to" it.

67 The appellant gave evidence, which the primary judge accepted, that he had complained about pain in his groin both to doctors at Westmead Hospital and to Dr Mar, but been told that pain was caused by his back injury. Dr Sanki, who diagnosed the herniae in September 2008, expressed the opinion that those herniae related to the fall.

68 To the extent Dr Edwards expressed any contrary view, it was based on the proposition that the appellant would have complained earlier about pain in his groin. In my view the primary judge was entitled to accept the appellant's evidence about his earlier complaints about pain in his groin and, too, Dr Sanki's opinion that the herniae related to the 2007 accident.

69 The respondents have not made good the two substantive attacks they relied upon to undermine the primary judge's assessment of the appellant's non-economic loss at 40 per cent.

70 The respondents' other attack on the assessment of non-economic loss relied upon Reece v Reece . In that case the court reduced an assessment for non-economic loss for a plaintiff who was aged 64 at the time of accident and who suffered significant injuries to her right hand, left hand and right knee in a motor vehicle accident from 33 per cent for a most extreme case as required by the Motor Accidents Act 1988 (NSW), s 79 to 22 per cent. Handley JA (with whom Clarke and Sheller JJA agreed) noted (at 105) that although "the plaintiff was entitled to a finding that her normal life had been significantly impaired and that she had suffered a significant degree of non-economic loss [t]he question remains ... whether 33 per cent of a most extreme case represents a wholly disproportionate assessment of the degree of the plaintiff's loss such as to entitle and require this Court to interfere on established principles." His Honour then said:

"The difficulty, in my opinion, with his Honour's assessment is to reconcile it with the assessment that might properly be made in a case of a much younger woman, say 30 years old, who before her injury had a similar range of interests and hobbies but had young children to help bring up and who, of course, faced a much longer period during which she would experience the pain, the disabilities and the progression of her condition."

71 The respondents submit that the appellant's non-economic loss should be assessed at 30 per cent of a most extreme case, which was the figure for which they had contended at trial.

72 Reece v Reece states the uncontroversial proposition that the plaintiff's age at the time of the assessment of damages is a factor relevant to the assessment of non-economic loss, a proposition Handley JA made abundantly clear when considering Reece v Reece in Marshall v Clarke (Court of Appeal, unreported 5 July 1994); see also Christalli v Cassar [1994] NSWCA 48 (at 3) where Kirby P (with whom Powell and Cole JJA agreed).

73 Age, however, is only one of the numerous matters the Court takes into account in its assessment of non-economic loss, which is defined in s 3 of the 2002 Act as follows:

" 'non-economic loss' means any one or more of the following:

(a) pain and suffering,

(b) loss of amenities of life,

(c) loss of expectation of life,

(d) disfigurement."

74 The assessment of non-economic loss depends on the circumstances of each plaintiff, albeit as s 16 of the 2002 Act now requires, as assessed by reference to a "most extreme case". In this respect, in my view however, Windeyer J's remarks in Thatcher v Charles [1961] HCA 5; (1961) 104 CLR 57 (at 71 - 72) remain cogent:

"Compensable loss depends not only on the severity of the physical injury but on the consequences for the individual. No two injuries are really the same; and the consequences of apparently similar injuries vary infinitely for different individuals. Thus amounts given in different cases may be harmonious on principle, although appearing disproportionate when the physical injuries alone are regarded. Measuring in money such things as pain and suffering or the impairment of capacity to lead life to the full really involves dealing in incommensurables. It is an attempt to weigh imponderables."

As Handley JA observed in Dell v Dalton (1991) 23 NSWLR 528 (at 532), although Windeyer J was in dissent, this passage "reflected the previous law".

75 When considering the respondents' challenge to the primary judge's determination of the severity of the appellant's non-economic loss by reference to the "most extreme case" standard, the Court is guided by the proposition that such a finding is not readily susceptible to appellate review, involving questions of fact and degree, and matters of opinion, impression, speculation, and estimation calling for the exercise of commonsense and judgment. The Court is only entitled to intervene and disturb the ultimate conclusion of the trial judge in accordance with the ordinary principles governing appellate review of awards of damages for personal injuries: Dell v Dalton (at 533 - 534) per Handley JA (Kirby P and Priestley JA agreeing).

76 In my view the primary judge's assessment of the appellant's non-economic loss as 40 per cent of a most extreme case was within an appropriate discretionary range for damages. The respondents have not demonstrated that in determining that percentage her Honour acted on a wrong principle of law, misapprehended the facts or made "a wholly erroneous estimate of the damage suffered": Moran v McMahon (1985) 3 NSWLR 700 (at 718, 723) per Priestley JA (Kirby P and McHugh JA agreeing).

77 The respondents' next challenge to the appellant's damages was to the award for past economic loss. They submitted that that award was excessive having regard to the fact the appellant's actual earnings for the financial year ending two days before the accident were only $5,000 gross. While they accepted that they conceded at trial that the appellant was earning $500 at the time of the accident, they contended that that concession did not relate to all prior or subsequent periods.

78 The respondents' written submissions identified two passages in the trial transcript as relevant to the respondents' concession about the appellant's earnings at the time of the accident. In the first counsel for the respondents at trial accepted that their medical evidence supported the fact that the appellant was not fit for his pre-injury employment. However he contended that the appellant's capacity to perform his employment as a bricklayer had already been reduced before the accident by about 50 per cent, then submitted that that reduction would naturally progress with his advancing age. He identified the major issue as future economic loss until age 70.

79 Counsel for the appellant at trial (who did not appear on appeal) handed the primary judge a schedule of damages in which he had calculated past economic loss over the two and a half years since the accident at $500 a week. He relied on the same figure for future economic loss, calculating that head of damages on the hypothesis the appellant would work for another ten years.

80 When counsel for the respondents came to the issue of past economic loss, the primary judge asked him what he said about the $500 a week for that head of damages. Counsel for the respondents accepted that it was not in issue that that was what the appellant was earning at the time of the accident, but submitted that the appellant had an ability to earn which would reduce the figure of $500 a week for the entire (past) period of two and a half years. He then turned to the issue of future economic loss and submitted her Honour would not allow that amount for the future. Although the submissions appear to have suffered in transcription, his argument appeared to be based on the proposition that the appellant had a residual earning capacity and that, in any event, having regard to the heavy nature of his occupation he would not have worked for another ten years as counsel for the appellant contended.

81 The respondents' challenge in this Court to the primary judge's award for past economic loss was confined to the submission that the appellant had told Dr Edwards that he passed his time carrying out normal activities, was able to mow the lawn, drove a car, that sitting for prolonged periods could cause him discomfort and that he limped constantly on his left leg as well as that he had applied for several jobs including driving a tanker but had been refused. They made no specific submissions as to future economic loss.

82 In my view the respondents have not demonstrated any error in her Honour's calculation of economic loss. Rather it appears to me that her Honour accepted the respondents' submissions. She did not allow the appellant $500 a week as claimed. Rather, as is apparent from her reasons in relation to future economic loss, she awarded him $350 net per week for the past and the same amount for the future.

83 As to the future, in particular, her Honour only awarded the appellant future economic loss to age 67 and found he had some residual earning capacity. In those respects her Honour, in my view, clearly accepted the respondents' submissions. The respondents cannot demonstrate error when the primary judge accepted their submissions. I discern no error in her Honour's reasoning as to the past. The appellant's statement about "normal activities" clearly related to life's daily travails, not the hard labour of a bricklayer's toils.

84 The respondents' challenge to her Honour's award of damages in respect of attendant care was confined to the proposition that that award was inconsistent with the appellant's medical evidence. Attention was drawn to Dr Ellis' report of 2 March 2009 in which he said that the appellant needed domestic assistance for at least four hours a week on a continuing basis.

85 The primary judge accepted Ms Klemens' evidence that she was doing an extra eight hours a week of work in and around the house as a result of the appellant's accident. Ms Klemens also said that she had undertaken that amount of extra work in and around the house since the appellant's accident. The respondents do not challenge the proposition that the services she was undertaking were of a domestic nature: s 15, 2002 Act. On that basis the requirements in s 15(3), 2002 Act were established. In my view the primary judge was entitled to accept that evidence which, as the appellant submitted, did not contradict Dr Ellis' evidence, but was based on more detailed evidence at trial from Ms Klemens in particular. I would reject the respondents' challenge to this head of damages.

Orders

86 I propose the following orders:

(1) Appeal allowed with costs.

(2) Set aside Order 1 in the verdict and judgment for the plaintiff entered on 12 May 2010;

(3) In lieu of Order 1, substitute verdict and judgment for the appellant in the sum of $633,799 with effect from 22 March 2010;

(4) Respondents to have a certificate under the Suitors Fund Act 1951 (NSW);

(5) Cross appeal dismissed with costs.

87 HANDLEY AJA: I agree with McColl JA

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Decision last updated: 05 April 2011