Supreme Court New South Wales

• Medium Neutral Citation: Herbert v Clarendon Homes (NSW) Pty Ltd [2013] NSWSC 1158
• Hearing dates: 7 and 8 August 2013
• Decision date: 23 August 2013
• Jurisdiction: Common Law
• Before: Beech-Jones J

Decision

Verdict for plaintiff.

Parties directed to prepare short minutes.

• Catchwords: NEGLIGENCE - accident on building site - duty of care - independent contractors - subcontractor - whether principal contractor on building site owed duty of care to independent contractor engaged by subcontractor - scope of duty - breach - employee of principal contractor lifted garage door occasioning injury to plaintiff - whether staff on site should have been notified of presence of plaintiff in garage - whether warning sign should have been erected - whether bolt should have been affixed to door - whether employee was careless in lifting the door - causation - contributory negligence.; DAMAGES - past economic loss - income splitting - future economic loss - whether plaintiff has residual earning capacity - past and future care - out of pocket expenses.
• Legislation Cited: - Civil Liability Act 2002; - Social Security Act 1991 (Cth)
• Cases Cited: - Benic v State of New South Wales [2010] NSWSC 1039; - Donoghue v Stevenson [1932] AC 562; - Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151; - Husher v Husher [1999] HCA 47; 197 CLR 138; - Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1; - Malec v J.C. Hutton Pty Ltd [1990] HCA 20; 169 CLR 638; - Novakovic v Stekovic [2012] NSWCA 54; - Pacific Steel Constructions Pty Ltd v Barahona [2009] NSWCA 406; - Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; - Rabay v Bristow [2005] NSWCA 199; - Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330; - Shaw v Thomas [2010] NSWCA 169; - Sibraa v Brown [2012] NSWCA 328; - Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16; - Sydney Water Corporation v Abramovic [2007] NSWCA 248; - Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; 221 CLR 234; - Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422; - Visyboard Pty Ltd v Ranieri [1999] NSWCA 331; - Wallace v Kam [2012] NSWCA 82; - Wallace v Kam [2013] HCA 19; 87 ALJR 648
• Category: Principal judgment
• Parties: Ray Herbert (Plaintiff); Clarendon Homes (NSW) Pty Ltd (Defendant)
• Representation: Counsel: A.J. Lidden SC, M.J. Maxwell (Plaintiff); R.A. Cavanagh SC (Defendant); Solicitors: Brydens Compensation Lawyers (Plaintiff); Lee & Lyons (Defendant)
• File Number(s): 2011/331103

Judgment

1 On 28 November 2008 the plaintiff, Mr Ray Herbert, seriously injured his left leg while performing plastering work in a garage at a home that was being constructed in Bulli by the defendant, Clarendon Homes (NSW) Pty Ltd (the "Bulli house" and "Clarendon" respectively). Clarendon had engaged a company in the Boral Group to perform the plastering work, which in turn had been subcontracted to Mr Herbert.

2 The accident occurred when an employee of Clarendon, Mr Mark Dowling, opened the garage door at the house while Mr Herbert was working immediately behind it. Mr Herbert was knocked from the top of a makeshift scaffold and fell to the concrete floor. Mr Herbert stated that he had previously told all the persons working on the site, including Clarendon's site manager, Mr Nathan Johnson, that he would be working behind the garage door and advised him to ensure that no one entered the garage.

3 Mr Herbert sues Clarendon in negligence. He claims that Mr Dowling was careless in opening the garage door, and that Clarendon is vicariously liable for his carelessness. He also claims that Clarendon was negligent in that it failed to take reasonable steps to properly co-ordinate the interaction between persons coming onto the site so that they had proper warning that he was working in the garage.

4 Clarendon did not accept but did not expressly deny that Mr Herbert told Mr Johnson where he would be working and asked him to make sure no one entered the garage. However it denied that either it or its employees were negligent in any respect. It further asserted that Mr Herbert's conduct in not properly securing the area in which he was working constituted contributory negligence. Clarendon did not dispute the seriousness of the injuries that Mr Herbert suffered, but did take issue with the quantification of the various heads of damages claimed by Mr Herbert.

5 For the reasons that follow, I uphold Mr Herbert's claim. I accept Mr Herbert's evidence. I am satisfied that he has established negligence on the part of Clarendon on both of the bases that I have referred to. Clarendon has not discharged the onus of demonstrating contributory negligence on the part of Mr Herbert. I make various findings concerning the injuries suffered by Mr Herbert and their consequences. It will be necessary for the parties to bring in calculations to reflect my findings.

The accident

6 As at the date of the accident Mr Herbert had been working as a self-employed plasterer on a subcontract basis for over twenty years. He stated that about half the work he performed was for Boral and that it mostly concerned small scale repair work on residential homes. Prior to the accident he had performed a number of jobs for Boral on homes being constructed by Clarendon. In the week prior to the accident he had performed plastering work in the garage at the Bulli house. He said that that work was not completed when he left the home. However he was unsure whether he would be asked to return.

7 On the day prior to the accident, 27 November 2008, Mr Herbert was contacted by Boral and asked to return to complete the plastering work. He knew that the work involved plastering a bulkhead above the inside of the main garage door. The bulkhead had been fitted to cover a stormwater pipe running through the garage.

8 In both his statement and his oral evidence Mr Herbert stated that he arrived at the site at either 7.00am or 7.30am. When he arrived he did not know whether the electricity had been connected to the garage or not. However he knew that he would need light in the garage and planned to use natural light by leaving the door partially open.

9 He said that the house was "ready for handover", although there were a number of workers on the site, including site cleaners, a tiler working on the front porch, a maintenance worker cleaning inside the building and Mr Johnson, whom he knew to be the supervisor for Clarendon.

10 In his statement Mr Herbert said that "[o]n arrival at the site" he spoke to Mr Johnson and said words to him to the following effect:

"I am going to be working behind the garage door. Can you make sure no one comes in as I will be set up directly behind the door and if it is opened I will be knocked over."

He also states that he said to Mr Johnson:

"I will leave the door partially open for daylight so that people can see that I am in there."

11 In cross examination it was put to Mr Herbert that he did not have a conversation in these terms with Mr Johnson but Mr Herbert maintained he did.

12 In both his statement and oral evidence Mr Herbert also stated that he told each of the other persons working on the site that he would be working in the garage and that no one should come in.

13 Clarendon tendered a statement from Mr Johnson and called him to give evidence. In his statement Mr Johnson stated that he recalled speaking to Mr Herbert "early in the morning on site informing him what needed to be done". He stated that he left the work site thereafter. In one part of his statement Mr Johnson stated that "[Mr Herbert] did not ask me to do anything in relation to securing the area" in which he would be working.

14 When Mr Johnson was called to give evidence he was asked in chief whether he had a conversation with Mr Herbert to the effect stated by Mr Herbert and extracted above. His response was: "I don't recall the exact conversation, no, I don't recall the conversation" and that "I remember speaking with Ray, but I don't recall the words to that effect that it happened". Mr Johnson was not cross examined.

15 Clarendon did not call any of the other persons who were on site that Mr Herbert states that he told to keep away from the garage. It was not suggested to Mr Herbert that he did not say those words to them.

16 Mr Herbert said that he performed some minor clean up work under the staircase inside the Bulli house and then went to the garage. The garage was separate from the house. Its only door was at the front which allowed access by vehicles. The electricity in the house and the garage was not working. In any event the electric motor which operated the garage door was not connected.

17 Mr Herbert said that he spent a considerable time setting up in the garage. He constructed a scaffold near the garage door consisting of two A-frame ladders with a plank suspended between them. He said that, as there was no light, he wedged the garage door open with a plasterer's bucket so that the door was approximately two feet off the floor of the garage. He stated he could not raise the door any higher because the top of the door would have then prevented him from working on the bulkhead.

18 Mr Herbert stated that the surface of the driveway was approximately three feet below the garage floor as that surface had not yet been laid. He also said the driveway sloped up towards the garage door. A photo that was tendered confirms this. The effect of this, he said, was that someone who was five to six feet tall who was standing on the ground outside the garage door and looking through the aperture created by the bucket at the bottom of the door would see the bottom of his ladders and his toolbox on the floor.

19 Mr Herbert stated that while he was working on his makeshift scaffold someone opened the garage panel lift door and knocked him from the scaffold. He was thrown back a significant distance when the door hit him in the chest. He said that he landed on his left side about half way into the garage. Mr Herbert then had a conversation with the person who opened the door. He recalled that he said he was "Mark Dowling from Clarendon's head office". He recalls that Mr Dowling asked him if he was alright and then went on to say:

"Looks like a dislocated knee to me. You'll be alright, I had one myself and you should be back at work in about six weeks."

Mr Herbert responded:

"Bloody hell! What did you open the door for? Everyone was told not to open the door and I told Nathan Johnson."

Mr Dowling replied:

"Sorry, I wasn't told."

20 Mr Dowling was not called. It was not suggested to Mr Herbert that the conversation he recounted with Mr Dowling did not occur.

21 Mr Dowling called an ambulance. The ambulance record reveals that it was booked at 10.07am. Mr Herbert was taken to Wollongong Hospital. The injuries he suffered and his subsequent treatment are described below.

22 It is evident that there is no dispute about most of the circumstances surrounding Mr Herbert's accident. At this point it is only necessary to address four matters.

23 The first concerns whether Mr Herbert said to Mr Johnson the words noted at [10] or something similar, and whether he made similar statements to the other persons who were on site. I am satisfied that Mr Herbert did. I was impressed with Mr Herbert's evidence. He appeared to me to be a generally careful person. As I have stated, ultimately Mr Johnson did not dispute that he had a conversation in those terms. The likelihood is that Mr Herbert would have said that to him. In cross examination Mr Herbert explained that prior to attending the site he was aware he would be working in the garage and that if he was working and someone opened the door he would be knocked off the plank. However, he stated that it was not until he arrived at the site that he noticed that there were "many people around on-site". He said it was that realisation that prompted him to speak to Mr Johnson. I will return to consider aspects of this in the context of considering Clarendon's claim that Mr Herbert's own conduct involved contributory negligence. For present purposes the significant point is that these matters make it inherently likely that Mr Herbert would have taken steps to bring his concerns to Mr Johnson's attention. I accept that he did so.

24 The second matter concerns the delay between the time at which Mr Herbert spoke to Mr Johnson on his arrival and the occurrence of the accident. Based upon the ambulance record, it seems that accident occurred at around 10.00am. As stated, Mr Herbert said that he arrived at the Bulli house at either 7.00am or 7.30am. However Mr Herbert also stated that he spoke to Mr Johnson about an hour before the accident happened, which would indicate that he arrived at the site at around 9.00am. He said that he anticipated the repair work in the garage would only occupy ten to fifteen minutes once he had set up, and that the work inside the house only involved cleaning "up a bit of plaster work underneath the stairwell in a cupboard". He said that work took no longer than a "couple of minutes". In cross examination Mr Herbert had the apparent discrepancy between his arrival time and the time of accident brought to his attention. He then accepted that he had been on site longer than an hour, but would not accept that he had been inside the garage for two hours.

25 I accept that there is some uncertainty about the amount of time Mr Herbert spent working on the Bulli house between the time of his conversation with Mr Johnson and the accident. However I also consider that the likelihood is that Mr Herbert was mistaken in his initial estimate of the time he arrived on site. I think the more likely course of events is that he arrived at some time between 8.00am and 8.30am and spoke to Mr Johnson and the other persons there, with the accident occurring at around 10.00am.

26 The third matter concerns the adequacy of the precautions taken by Mr Herbert. Mr Herbert stated that he knew, prior to attending the Bulli house, that he would be working on a scaffold in the garage. He also knew that he would be propping the garage door open to a point to obtain some light. However, as stated, he did not appreciate that there was any risk from working in the garage until he arrived on the site and noticed a number of other people working there. He said he did not bring a sign or even possess one. He also said there were no materials on the site to make one. He stated that there was nothing to tie a rope onto to secure the garage door. I accept Mr Herbert's evidence on these matters.

27 Mr Herbert was also asked about affixing some form of bolt to the tracks of the rail holding the garage door. He denied that there were any bolts available. He stated he did not carry any tools to do that. He was also asked:

"Q. And indeed, wouldn't that [ie affixing a bolt to the door rails] have been the obvious way to stop the door being opened?

A. That is if it would hold it, most panel lift doors do not have holes all the way through them. It is just one track.

Q. Well you didn't make any attempt to do that, is that right?

A. That is right."

28 This was the entirety of the evidence on this topic. There was no evidence to suggest that it was even possible to affix a bolt to allow Mr Herbert to have natural light yet still work on the bulkhead inside the garage.

29 The fourth matter concerns what inferences can be drawn about Mr Dowling's actions prior to the opening of the door. As stated, Mr Dowling was not called to give evidence. In his statement, Mr Johnson stated that he had left "some time thereafter". I infer this to be a reference to some time before Mr Dowling arrived. Mr Dowling's statement to Mr Herbert at the time of accident was that he, Mr Dowling, was not told by Mr Johnson that Mr Herbert was working behind the door. There is no reason not to accept that statement. Mr Herbert's evidence that he propped up the garage door with a plasterer's bucket and as to the relative height of the garage door to the outside surface of the driveway was not disputed. As stated, his description of the slope up towards the garage door was confirmed by a photograph of the Bulli house.

30 Mr Dowling could only have approached the garage door from two perspectives. One was to walk up the driveway towards the garage. The other was to approach from the left side as one faces the garage. The front door to the house is to the left. The unexplained failure of Clarendon to call Mr Johnson or anyone else on site does not assist me in concluding whether Mr Dowling approached the garage by walking up the driveway or from the side. Both remain equal possibilities. Given Mr Dowling's position and his attendance at the work site, it would have been obvious as he approached the garage door that he was dealing with a house which was still under construction. As he went to lift the garage door he would have noticed that it was propped up by a plasterer's bucket. If Mr Dowling had approached from the street up the slope towards the garage door then, at some point, he would have had a direct view of at least the bottom of Mr Herbert's ladders and most likely the middle of the ladders. Even if he approached from the side, given the gap between the surface of the driveway and the bottom of the garage, he would still have had a view of the bottom of the ladders at a point not later than when he lifted the garage door.

Negligence

31 Mr Herbert's claim is governed by the Civil Liability Act 2002 (NSW) (the "CLA"). To properly engage its provisions it is first necessary to identify the duty of care, if any, owed to Mr Herbert.

32 As Mr Herbert was a self employed contractor Clarendon did not owe him a duty of care of a kind which it owed its employees (Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1 at [20]). Instead the nature and scope of the duty was described by Brennan J in Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16 at 47 to 48 (and endorsed in Leighton) as follows:

"An entrepreneur who organizes an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organizing the activity to avoid or minimize that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The entrepreneur's duty arises simply because he is creating the risk and his duty is more limited than the duty owed by an employer to an employee. The duty to use reasonable care in organizing an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimize other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organized and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors' respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility." (emphasis added)

33 The emphasised part of this passage identifies a limited duty owed by principals to contractors in the organisation of an activity on a worksite. Thus a number of decisions of the Court of Appeal have held that a principal owes to an independent contractor, or a contractor's employee, a "duty beyond the alleviation of risk of injury arising from a need for direction and co-ordination of activities on site" (Pacific Steel Constructions Pty Ltd v Barahona [2009] NSWCA 406 at [89] per Allsop ACJ, Beazley and Giles JJA).

34 In Barahona the Court referred with approval to certain criteria listed by Basten JA in Sydney Water Corporation v Abramovic [2007] NSWCA 248 at [98] said to be distilled from the cases and provide a guide for determining the existence of a duty. These criteria included whether:

"(a) the principal directs the manner of performance of the work;

(b) the work requires the co-ordination of the activities of different contractors;

(c) the principal has or ought to have knowledge of the risk and the [sub-contractor] does not and cannot reasonably be expected to have such knowledge;

(d) the principal has the means to alleviate the risk and the [subcontractor] cannot be reasonably expected to do so;

(e) although the [subcontractor] has or should have the relevant knowledge and can be reasonably expected to take steps to alleviate the risk, it does not, to the knowledge of the principal, do so."

35 A consideration of all these criteria would entail a drift into the area of breach, a matter I consider below in the context of addressing s 5B of the CLA. However at least at this point it is apparent that the facts of this case engaged Clarendon's obligations in respect of the co-ordination of activities between its own employees and any sub-contractors working at the Bulli house, including Mr Herbert. Clarendon controlled and was responsible for the entry of its own employees and subcontractors onto the Bulli house work site. It did not control and direct how Mr Herbert performed his work, but it did direct him where to work and controlled or was capable of controlling who else entered that area. The number of persons working on site was within its control. The absence of electrical power and, in particular, lighting within the garage was initially at least its responsibility. Mr Herbert made it clear to Mr Johnson (and the other employees) that he was reliant on them and Clarendon generally to exercise control over persons who entered the garage. Mr Johnson did not disclaim that responsibility.

36 There is, however, another duty that should not be overlooked, namely that owed by Mr Dowling personally. As a person entering a building site he owed a duty to take reasonable care to avoid exposing persons working on that site to harm from his own careless actions. Mr Dowling knew he was entering a work site, and he knew or ought to have known that various subcontractors were engaged there. In this respect Mr Herbert fell within the class of persons that answer the now famous question "who is my neighbour" posed by Lord Atkin in Donoghue v Stevenson [1932] AC 562 at 580. If Mr Dowling breached this duty, then Clarendon would be vicariously liable for his actions.

37 Section 5B of the CLA concerns breach. It provides:

"General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm."

38 The starting point for an application of this section is the identification of the "risk of harm" (see Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 at [59] per Gummow J). Neither of the parties sought to formulate the risk in their submissions. The relevant risk must be pitched at a higher level than the precise harm suffered by the plaintiff in the precise circumstances of the accident (see Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 at [24] per Meagher JA and [123] per Tobias AJA; Sibraa v Brown [2012] NSWCA 328 at [39] to [41] per Campbell JA; Benic v State of New South Wales [2010] NSWSC 1039 at [83] per Garling J).

39 I have identified two relevant duties owed to Mr Herbert, one owed by Clarendon in its capacity as principal and a personal duty owed by Mr Dowling not to be careless. It is necessary to differentiate between those two entities and their respective duties in the application of s 5B, including the formulation of the relevant risk of harm even though Clarendon may ultimately be liable on either basis.

Clarendon - breach and causation

40 Mr Herbert specifically advised Clarendon via Mr Johnson that he would be working immediately behind the door and that if the door was opened he would be knocked over. Thus, in the case of Clarendon, the relevant "risk of harm" was of someone being injured if they were working immediately behind the garage door and if the garage door was opened. It necessarily followed from what Mr Herbert told Mr Johnson that that entailed risk. Hence he requested precautions be taken ("can you make sure no one comes in"). In any event, anyone familiar with the configuration of this garage or any garage similar to this one would have appreciated the likelihood or at least significant possibility of a person in Mr Herbert's position being harmed if the door was opened. Thus this risk was both foreseeable and not insignificant (Shaw v Thomas [2010] NSWCA 169 at [44] per Macfarlan JA; Benic at [93] to [101]).

41 Next, it is necessary to consider the precautions a reasonable person would, in the circumstances, have taken by way of response to the foreseeable risk of harm posed to Mr Herbert from someone unexpectedly opening the garage door while he was working immediately behind it (s 5B(1)(c), Novakovic v Stekovic [2012] NSWCA 54 at [39]). This involves a prospective inquiry that "seek[s] to identify what the response would have been by a person looking forward at the prospect of the risk of injury" (Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [126] per Hayne J, cited in Novakovic at [40]).

42 Mr Herbert identified two categories of precautions he asserted ought to have been adopted by Clarendon. The first concerned securing the area in which Mr Herbert was working by erecting a warning sign or fixing a bolt to jam the door. I have already described the evidence of Mr Herbert on these topics. Based on his evidence, I am not persuaded that it was possible to affix a bolt to the door to prevent it opening yet allow Mr Herbert to continue working on the bulkhead above the garage door

43 In relation to a sign, Clarendon via Mr Johnson may have been aware prior to Mr Herbert's arrival that he would be working on the bulkhead in the garage, but it had no reason to conclude prior to his arrival that it was necessary to provide for a precaution of that kind. It would not necessarily know how Mr Herbert proposed to configure his scaffold. The request that Mr Herbert made of Mr Johnson would have alerted him to the need for a sign, but presumably he would have faced the same difficulties in obtaining one that Mr Herbert confronted. Considered prospectively, I do not consider that it was incumbent on Mr Johnson to have either left the site or arranged for someone to bring a sign to the Bulli home. This would have entailed a significant diversion of resources for an activity assigned to Mr Herbert that would not be expected to occupy a significant amount of time. I doubt that there was much risk of third persons in Bulli simply wandering onto the home site and randomly opening the garage door. Subject to one matter, I consider that the short period that it was expected it would take Mr Herbert to do the plastering work, the burden of obtaining a sign and the minimal risk posed from outsiders did not warrant Mr Johnson taking steps to have a sign erected.

44 The one matter of exception to this concerns the second type of "precaution" that it was suggested Clarendon should have taken, namely communicating, or taking reasonable steps to communicate, to other members of its staff who may enter the site that Mr Herbert was working in the garage. Mr Herbert took the step of telling the other persons on site that he was working on the garage and not to open the garage door. I have already found that Mr Herbert arrived at the site sometime between 8.00am and 8.30am and the accident occurred at around 10.00am. Some time between those times Mr Johnson left the site. At the time he left the site he either knew or should have known that Mr Herbert had not finished work. He did not tell Mr Herbert that he had left.

45 In the absence of a sign being left at the site and, as Mr Johnson was aware when he left that Mr Herbert was likely to be standing on a makeshift scaffold in a dark garage, I consider that it was a reasonable precaution for Clarendon to have taken steps to notify those persons who it knew or ought reasonably have known would be coming onto the site of Mr Herbert's presence. In doing so it would have been simply passing on the message and warning that Mr Herbert had passed onto Mr Johnson. In an age of mobile communications it would not have been burdensome to adopt such a precaution. Clarendon can be taken to have been aware of those of its staff who were planning to and did attend the home on the day of the accident. Mr Herbert asked Mr Johnson to ensure that no one came into the garage. If no sign was available then a simple message to those members of Clarendon staff coming onto the site to be aware of Mr Herbert's presence was at a minimum required. It was clear that no message was conveyed to Mr Dowling ("no one told me"). How and why that is so is not known, given the paucity of evidence from Clarendon. However, it does not matter. Either no attempt was made to communicate or the method of communication and co-ordination was not adequate. In either circumstance Clarendon was negligent.

46 Causation is governed by s 5D of the CLA. The test posed by s 5D(1)(a) involves a strict application of the "but for" test. This test is "entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E" (Wallace v Kam [2013] HCA 19; 87 ALJR 648 at [14]). It eschews policy or value judgments (Wallace at [15], citing with approval Allsop P in Wallace v Kam [2012] NSWCA 82 at [4]). I am satisfied that, had Mr Dowling been apprised of Mr Herbert's presence behind the garage door, then he would not have opened it. Sub-section 5D(1)(a) is satisfied.

47 Sub-section 5D(1)(b) requires a determination that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused. In contrast to s 5D(1)(a), this is an entirely normative assessment. In accordance with s 5D(4), it requires "consideration by a court of (amongst other relevant things) whether or not, and if so why, responsibility for the harm should be imposed on the negligent party" (Wallace at [14]). There is no reason why it is not appropriate for the scope of Clarendon's liability on this basis to extend to the harm caused to Mr Herbert.

Mr Dowling - breach and causation

48 In determining the risk of harm said to be apparent to someone in the position of Mr Dowling, that person is not to be imputed with the same knowledge as Clarendon. From Mr Dowling's perspective the risk of harm was the risk of occasioning injury by suddenly lifting the garage door. Unlike the position of Clarendon, this risk does not include as an element the knowledge that Mr Herbert was immediately behind the garage door.

49 Did this involve a risk of harm to someone that was foreseeable and not insignificant? At the very least Mr Dowling knew that he was entering a work site. The most favourable assumption for Mr Dowling is that he approached the garage from the left from the perspective of someone facing the garage from the front. Prior to lifting the garage door Mr Dowling would have been standing on the driveway surface some feet below the garage floor. To someone in his position paying proper attention, the bottom of the ladders that made up the scaffold would have been apparent. Most significantly Mr Dowling would have noticed that the bottom of the garage door was perched on the top of a plasterer's bucket. Accordingly, no later than when he leant down to pick up the garage door to open it, the makeshift scaffold would have been apparent.

50 In my view, the risk of some harm from an entrance into the garage by a sudden lifting of the door was foreseeable and not insignificant. The presence of the bucket wedging the door open should have alerted Mr Dowling to the strong possibility of someone working in the garage and most likely near the door. Of course there were other possibilities under which the bucket could be holding the door open with no one working inside the garage. Paint or plaster could have been drying. Those matters also warranted caution but in any event they do not mean that the risk of harm to someone from lifting the door was neither foreseeable nor insignificant.

51 The relevant precaution required of Mr Dowling was to take care in opening the door and perhaps call out to see if anyone was working inside. In my view those precautions were obvious ones to take. The probability of harm occurring if they were taken was not particularly high, nor was the likely seriousness of the harm that could be expected to result that significant. Nevertheless the burden of the suggested precautions was not great. They are the type of steps anyone in Mr Dowling's position would reasonably be expected to take on an active work site. I am satisfied that Mr Dowling was careless in the manner in which he opened the door. Mr Herbert has established that Mr Dowling breached his duty of care and, in turn, that Clarendon was negligent.

52 The operation of s 5D of the CLA has already been noted. Had Mr Dowling looked into the garage or called out then he would have realised that it should not be opened and acted accordingly. I am satisfied that had Mr Dowling taken any of the precautions identified above then the accident would not have happened. Sub-section 5D(1)(a) is satisfied. Again, there is no reason why it is not appropriate for the scope of Mr Dowling's and, in turn, Clarendon's liability to extend to the harm caused to Mr Herbert. None was suggested in argument. Sub-section 5D(1)(b) is also satisfied.

Contributory negligence

53 Clarendon submitted that Mr Herbert's own negligence contributed to the accident. Sub-section 5R(1) of the CLA stipulates that the principles that determine whether a person has been negligent, which include those set out in s 5B, also apply in determining whether a person who suffered harm has been guilty of contributory negligence in failing to take precautions against the risk of harm. The risk of harm from the perspective of Mr Herbert was the same as that I have identified for Clarendon. It is evident from his conversation with Mr Johnson that both he and Clarendon were aware of where he would be working and the risk posed by the opening of the garage door. Further, s 5R(2) provides that the standard of care is that of a reasonable person in the position of Mr Herbert at the time of the accident, and the matter is to be determined having regard to what that person knew or ought to have known.

54 In Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; 221 CLR 234 at [40] the High Court noted that different considerations arise in deciding questions concerning allegations of contributory negligence on the part of employees compared with individual contractors. In Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 at [15] McColl JA referred to this aspect of Thompson and stated that "[i]n an employment situation a court is required to take into account, in determining whether a plaintiff has been guilty of contributory negligence, the fact that the employer had failed to use reasonable care to provide a safe system of work". Presumably, the corollary of this is that no such duty on the part of the principal enters into the assessment of whether a contractor was negligent in looking after their own safety. It would appear to follow that, in making decisions about their own work methods, a contractor is disentitled from assuming that the principal will design and implement a safe system of work. Thus, both at the point of determining liability in negligence and in assessing contributory negligence, the common law dramatically favours the use of contract labour over employees.

55 The standard of care that was required of Mr Herbert in looking after his own interests has already been noted. Clarendon identified two forms of "precautions" that it contended Mr Herbert should have identified, namely the use of a bolt or similar mechanism to effectively jam the door, and a sign warning persons about to enter the garage. It follows from the above that I reject the contention that it would have been reasonable in the circumstances for Mr Herbert to use a bolt to jam the door. I accept that until he arrived at the scene Mr Herbert could not reasonably be expected to have known that a sign or some form of jamming device was required. Once he arrived I am not satisfied that there was anything available on site that could be used to jam the door, or that it was even possible to jam the door in such a manner that would allow him to keep it open to obtain sufficient light but not open too far to prevent him working on the bulkhead. In relation to a sign, I have already noted and accepted Mr Herbert's evidence that there was nothing available on site to use.

56 Thus Mr Herbert would have had to leave the site, possibly for a number of hours, to buy or make a sign or a jamming device. I do not consider that the exercise of reasonable care required him to take that step. He did not expect to be standing on the scaffold behind the door for too long. Most importantly, he had taken the precaution of informing everyone on site where he would be working and the associated risk. He had specifically requested that Mr Johnson take responsibility for controlling access to the garage ("make sure no one comes in"). Mr Johnson did not disclaim responsibility for doing so. In the circumstances, Mr Herbert took adequate precautions for his own safety.

57 I reject the allegation of contributory negligence on the part of Mr Herbert.

Injuries, treatment and prognosis

58 After the accident Mr Herbert was taken to Wollongong Hospital. X-rays showed he had suffered proximal shaft fractures of his left tibia and left fibula. His leg was placed in a cast. However he developed "compartment syndrome", a serious condition that arises when there is insufficient blood supply to the muscles and nerves. He underwent an emergency left leg fasciotomy and a fixator apparatus was placed across the femur and the tibia. After five days in Wollongong Hospital he was transferred to St George Hospital. Unfortunately, he developed an infection of his fasciotomy wounds. On or about 3 December 2008, the fixator apparatus was removed and a heavier fixator was implanted. It seems that infection still remained. Towards the end of December 2008 he was operated on by Dr Molnar. Dr Molnar carried out an open reduction and an internal fixation of the fracture in the left knee by the application of plates and screws. He was discharged from St George Hospital on 31 December 2008.

59 In the calendar year 2009 Mr Herbert underwent more surgery on his leg and suffered from recurrent infections. In April 2009, Dr Molnar reported that he would need to remain under a regime of antibiotics until union of the fracture occurred. He anticipated at that stage ceasing antibiotics and removing the hardware in his leg. In July 2009 Dr Molnar reported that Mr Herbert continued to have intermittent wound discharge and that he had only demonstrated partial union at the fracture site, although the intra-articular fractures appeared to have united. Dr Molnar proposed removing the hardware in Mr Herbert's leg, although the operation was postponed until later in the year.

60 The surgery occurred on 30 September 2009 when the hardware was removed and various steps were taken in an attempt to avoid future infections. Unfortunately they were not successful. On 2 December 2009 Mr Herbert underwent a bone graft procedure. The donor site for the graft was his left hip. He was discharged shortly afterwards but readmitted to hospital on 12 December 2009 for the administering of intravenous antibiotics.

61 In July 2010 the staff specialist in the infectious diseases section wrote to Dr Molnar advising that in the last month Mr Herbert had suffered increasing pain and swelling. On 21 July 2010, Dr Molnar performed further surgery which opened up his previous wounds and removed all the remaining plates and screws in his left leg.

62 In September 2010 Mr Herbert was still reporting swelling in his leg and was taking long term suppressive antibiotics. He was still receiving those antibiotics in January 2011. He reported wound break-down and anterior knee pain.

63 In May 2011 Dr Molnar reported that, having regard to the history of infection since the time of the accident, Mr Herbert had developed "proximal tibial osteomyelitis" (ie infection and inflammation of the bone or bone marrow).

64 Since 2011 Dr Molnar has continued to closely review Mr Herbert. In July 2013 Dr Molnar reported that Mr Herbert had attained union of the fracture, but had been left with "significant osteoarthritis of his left knee and significant soft tissue damage involving the area over the proximal tibia". Dr Molnar considered that there was the possibility of chronic osteomyelitis, although he noted that at the time of last review there were no signs of active infection. His report discussed the possibility of Mr Herbert undergoing knee replacement surgery. Dr Molnar reported that the subject had been discussed with Mr Herbert. Dr Molnar noted that such surgery presented a "significant risk of infection or other complication", and may "ultimately end in the need for an above-knee amputation". In his evidence Mr Herbert stated that he did not want to have the operation because of its attendant risks and would only do so if the position "bec[ame] desperate".

65 Consistent with the above medical history, Mr Herbert explained that he now has left hip pain and left knee pain, his leg swells up, he has pain in the left foot and he constantly uses medication in the form of painkillers, antidepressants and sleeping tablets to cope with his difficulties. He stated that he used a walking stick to walk on most occasions although not inside his house.

66 At the time of the hearing Mr Herbert's leg presented with substantial scarring and appeared red and sore. It was bandaged. He explained that there are parts of his leg that he cannot feel and other parts that have a burning sensation. There are two lesions on his leg which at the time of the hearing were not inflamed. They were described by Mr Herbert as being the size of a "five cent piece". However Mr Herbert said that on occasions these lesions flare up and weep. He said the holes sometimes become bigger, "[b]ack to around a twenty cent piece". This occurred every couple of months. He copes by placing a compression bandage on his leg and then "hop[ping] into bed and put[ting] two pillows under [his] leg and let[ting] the blood come back out of it". He said that it can take some weeks for the lesions to contract. Mr Herbert said that during those periods when his leg is not severely infected he would have his foot elevated some two hours a day.

67 Not surprisingly, there are significant restrictions on Mr Herbert's movement of his leg. Mr Herbert stated that he only had 20% movement at the knee and a 50% restriction on twisting his foot. A medico legal report from an orthopaedic surgeon retained by the plaintiff, Dr Wallace, states he has a range of movement at the left knee of 0 to 110 degrees flexion and at the left ankle of 0 degrees dorsi flexion, 40 degrees plantar flexion, 40 degrees inversion and 40 degrees eversion.

68 Mr Herbert stated that he was previously a keen fisher and hunter. Since the accident his fishing activities have been restricted so that he can only fish from the river shore and is not prepared to risk getting into a boat or walking in high country. He experiences similar difficulties with hunting. He said that he used to hunt rabbits and vermin, but as it involves walking over rough or uneven ground he can only do it for about twenty minutes at a time. He agreed that once or twice a year he would go hunting on a quad bike.

69 One of the forms of medication that Mr Herbert takes is antidepressants. Since the accident his moods and his emotions have become volatile. He stated "one of the biggest things that hurts [is] not being able to go out, make a living, have a good wage come in", and that his emotional state is significantly affected by the fact that he is "not providing". A psychiatrist, Dr Jungfer, opined that Mr Herbert has suffered a major depressive disorder "solely within the context of the injury that he sustained and the losses that occurred as a consequence of this injury". I accept this evidence.

70 Dr Wallace and an orthopaedic surgeon retained on behalf of the defendant, Dr Harvey, participated in a joint conclave before trial and gave evidence together at the trial. Their joint report reveals that there was a very significant level of agreement between the two of them, although senior counsel for Mr Herbert, Mr Lidden SC, submitted that some parts of the joint report should not be accepted. I will return to address that submission.

71 Although as at July 2013 Dr Molnar only considered that it was possible that Mr Herbert had osteomyelitis, Dr Wallace and Dr Harvey treated Mr Herbert as definitely suffering from that condition. They also stated:

"We agree that Mr Herbert has a poor prognosis for further recovery of function [in his] left leg despite ongoing treatment.

He is likely to develop osteoarthritis of the left knee in the future as a result of involvement of the articular surface at the time of his injury in November 2008.

At the time of review in 2012, the cartilage intervals were well preserved and we did not see this as a problem in the near future.

However, it is likely that Mr Herbert will develop post-traumatic osteoarthritis at the left knee within a period of ten years of his injury in November 2008."

72 This part of their report and the inter-relationship between Mr Herbert's osteomyelitis and developing arthritis for his future prognosis was the subject of much questioning. Dr Wallace opined that the prospects for the function of Mr Herbert's leg in the next five to ten years were "grim". He considered that the early osteoarthritis in his knee "will worsen". Absent the osteomyelitis, Dr Wallace considered that Mr Herbert would be likely to need a knee replacement in the next ten years because of his arthritis. However, the complications of the osteomyelitis were such that surgery represented a significant risk and might, as indicated by Dr Molnar, lead to amputation of his leg. On the other hand, if there was no surgery there would be deteriorating arthritic change within his knee. Dr Wallace was not prepared to state that, absent such surgery, the deteriorating arthritic change would lead to him becoming immobile, but he accepted that there was a significant prospect of a significant loss of function.

73 Dr Harvey considered that a knee replacement would be a highly hazardous procedure for Mr Herbert to undertake given his medical history. Although Dr Harvey considered that, absent any knee replacement, Mr Herbert's arthritic knee could worsen, he did not accept that there was any realistic possibility that he would be wheelchair-bound for many years in his later life.

74 Thus Mr Herbert finds himself in a position where his arthritis is likely to lead to a deterioration in his knee functioning, but his osteomyelitis makes a knee replacement operation risky. Absent a knee replacement, there is a prospect of further deterioration in his functioning. None of these outcomes is certain. However, as realistic possibilities they must all be considered in assessing damages (see Malec v J.C. Hutton Pty Ltd [1990] HCA 20; 169 CLR 638), subject to the conformity of that approach with the CLA.

General damages

75 I have already described the bulk of Mr Herbert's afflictions and injuries. It is evident that he has suffered severe consequences from his fractured left tibia and fibula. Since the accident he has been hospitalised a number of times. He has suffered repeat bouts of serious infection with a strong likelihood that they will be repeated. I have no doubt that he has and will continue to experience significant pain. It is likely that his arthritis will continue to deteriorate. Absent his osteomyelitis he could expect to have a knee replacement, however, for the reasons already explained, the risks posed by such an operation are so significant that it seems unlikely that it would occur. Thus the likelihood is that he will face a deteriorating knee in his later years without much relief. Accepting it is very unlikely he would be "wheelchair bound", as suggested by his counsel, Mr Herbert nevertheless faces a bleak outlook.

76 Obviously Mr Herbert's physical movement has been affected by his injuries. I have described the limitations on his movement and the impact on his enjoyment of fishing and hunting. His domestic activity has also been affected. Mr Herbert stated in the years after the accident he was unable to look after the garden at their home including mowing the lawn. He was also unable to cook food, a chore he had occasionally performed prior to the accident. He said that in the last "couple of years" he has been able to do some of the mowing but on "many occasions" he leaves it to his wife because he is in pain. Mrs Herbert's evidence confirmed this. In his oral evidence she explained that prior to the accident he cleaned up outside the house, maintained the car and undertook household maintenance, but has not been able to do those tasks since the accident. Mr Herbert told Dr Wallace that he has difficulty driving a car for more than 90 minutes

77 The above suggests that Mr Herbert is still able to pursue some physical activity. It might be considered that the impact on him is not that significant. However, prior to the accident Mr Herbert's life was centred around his being physically active. Mr Herbert described his level of literacy as "not very good". He was not familiar with computers and does not own one. His wife's description of his current activities suggested that he was now simply biding his time around their home with no particular purpose. In these circumstances Dr Jungfer's diagnosis of his level of depression is not surprising. To the contrary, it is completely understandable.

78 Section 16 of the CLA requires that I make an assessment of the severity of his non-economic loss by reference to "a most extreme case" (ss 16(1) and (3)). Having regard to the findings I have made, including those concerning his depression and the uncertain but relatively bleak prognosis, I assess the severity of his non-economic loss at 55% of a most extreme case. This corresponds to an award of $294,250.00.

Past economic loss

79 It was accepted that Mr Herbert had not worked since the accident and was not capable of working in that period. Mr Herbert conducted his contracting business through a company and a partnership. It is unnecessary to discuss the structure in detail. It was common ground that he utilised a (legitimate) form of income splitting with his wife who undertook some bookwork for the business. It was accepted that in those circumstances it was appropriate to apportion the bulk of the gross income to him (Husher v Husher [1999] HCA 47; 197 CLR 138). The parties agreed on the adoption of a net figure of $627.00 per week as the appropriate level of net earnings as at the date of the accident.

80 Mr Lidden SC contended that this figure should be inflated to $840.00 net per week as at the date of the trial to reflect two matters. First, due to changes in tax scales and thresholds since the accident, the net figure of $627.00 was now said to be equivalent to $700.00 per week. Second, as average weekly earnings had (allegedly) risen approximately 20% since the date of the accident, it was said that the net figure of $700.00 should be increased by the same amount.

81 In relation to the first matter, senior counsel for Clarendon, Mr Cavanagh SC, submitted that Mr Lidden SC's approach involved double counting. He contended that in adopting the figure of $627.00 by adding back Mr Herbert's wife's net wages, which were paid at a very low marginal rate by utilising income splitting, and then seeking to further increase the overall net amount in light of changes in tax thresholds, a figure was realised that exceeded the net figure that would be realised if all of the gross income of Mr Herbert and his wife was allocated to Mr Herbert. As a matter of principle this seems correct, although neither party presented me with any detailed analysis of the rates or movements in thresholds so as to enable a quantitative assessment to be undertaken. Utilising counsel's imprecise methods and subject to the next point, I will adopt the net figure of $650.00 per week as the likely rate as at the date of the verdict.

82 In relation to the second matter there was no satisfactory evidence to enable the Court to conclude that there would have been any significant increase in Mr Herbert's earnings had the accident not occurred. Even if average weekly earnings have increased by 20% since 2008, I would not use that as a proxy for a self-employed contractor who derives almost half his work from one client. Even if the figure of 20% is correct, it is likely to reflect the increases in income enjoyed by those in the mining sector over recent years. It is unlikely to be of much relevance to those engaged in retail housing construction in the Illawarra area. The amount of work available to comparable contractors or at least evidence concerning the level of activity of Boral or the local building industry in the Illawarra was likely to be a surer guide, but I did not receive any evidence in that regard. I will only allow for some modest increase in the earnings since the accident. I will adopt a net figure of $670.00 as the appropriate rate at the date of the verdict.

83 Accordingly past economic loss should be calculated on the basis of a net rate of $627.00 as at the date of the accident and $670.00 as at the date of the verdict.

Future economic loss

84 The parties identified three issues to be decided for the purposes of determining future economic loss. The first was the level of earnings to be adopted for the future. This is reflected in the finding that I have just made, namely that the rate of net earnings as at the date of the verdict is $670.00 per week.

85 The second issue was whether Mr Herbert had any residual working capacity following the accident. As at the date of the accident Mr Herbert was 53 years of age. He was 58 as at the date of the trial. He left school in 1971 after finishing year 10. He then obtained work with a company based at Fairy Meadow and commenced an apprenticeship as a plasterer. He stayed with that company for approximately three and half years. From 1974 to 1978 he was employed as a labourer by the Sydney County Council. He stated that he then moved to Wollongong and worked as a plasterer on a subcontractor basis. From 1981 to 1986 he worked in other manual positions before returning to work as a plasterer on a subcontract basis in 1986. As stated, he worked continuously in that occupation from then until the date of the accident. It is thus evident from his educational background and work history that his ability to perform manual labour was the critical determinant of his ability to earn income. I have already referred to the fact that he does not own and cannot use a computer.

86 The joint report of Dr Wallace and Dr Harvey stated as follows in relation to his ability to resume work:

"[Mr Herbert] is fit to return to work at part-time light duties between 15 and 30 hours per week depending upon the occupation [in] which he is employed. If he is employed in a semi-sedentary occupation where he is able to sit for prolonged periods, he will be fit for work up to 30 hours per week but if he is required to participate in standing or walking, he would only be fit for 15 hours per week."

87 Both doctors were challenged on this issue in cross examination by Mr Lidden SC. I accept this evidence as far as it goes, although it has three significant limitations that should be noted. The first is that it was only addressing Mr Herbert's physical restrictions when his osteomyelitis was asymptomatic. Mr Herbert stated that his leg swelled up, tearing the wound apart, "[e]very couple of months" so that the holes enlarged to the size of "around a 20 cent piece" and would not close for two to three weeks. This would severely impact upon his ability to obtain and retain permanent part time employment.

88 Second, the joint opinion does not take into account his depressed state that has already been described.

89 Third, in cross examination both of the authors disclaimed any suggestion that they opined upon the likelihood that Mr Herbert could obtain work for the hours they nominate. They suggested that this was a task for an occupational therapist. This concession reflects that the assessment of Mr Herbert's earning capacity requires that consideration be given to market demand for his labour. As noted by Davies AJA in Visyboard Pty Ltd v Ranieri [1999] NSWCA 331 at [28]:

"Earning capacity involves an ability to engage in remunerative employment and this itself involves an ability to find an employer who is prepared to engage and remunerate the disabled person".

90 On this point Mr Cavanagh SC accepted that his client bore the onus of demonstrating that Mr Herbert had a residual earning capacity, citing Rabay v Bristow [2005] NSWCA 199 at [73]. Whether that concession was correct makes no difference in this case. Regardless of which party bore the onus on this issue I am satisfied that Mr Herbert does not have any residual earning capacity. It is possible to speculate about some forms of part time manual work that Mr Herbert might be able to perform if his osteomyelitis was asymptomatic. The examples referred to in argument were gate keeper and part time delivery driver (but only for short periods). However, on the limited material available, Mr Herbert's prospect of obtaining such positions, assuming they still exist, would be minimal. He would present as a worker close to retirement age with a significant disability, with the added complication that he was likely to be immobilised every few weeks when his osteomyelitis flared up. His lack of educational qualifications and computer skills would require him to be retrained even for manual positions, as they almost invariably interact with technology. Even allowing for the greater current emphasis on the re-engagement of disabled workers in the labour market, Mr Herbert would present as a worker requiring significant investment by the employer for a limited return in terms of output and hours.

91 Mr Herbert does not have any realistic prospect of obtaining or retaining suitable part time employment. I am satisfied that Mr Herbert does not have any residual earning capacity. The assessment of future economic loss should be undertaken on that basis.

92 The third issue was the likely age that Mr Herbert would have worked until had the accident not occurred. Mr Cavanagh SC submitted that the likelihood was that Mr Herbert would have kept working until he reached the age at which he was eligible for the aged pension, ie 67 (Social Security Act 1991 (Cth), ss 43 and 23(5A)). Mr Lidden SC pointed to the following evidence from Mr Herbert as suggesting that he would have worked for longer:

"Q. Had you any thoughts about when you would give it away, what age you'd like to work to?

A. No, I just keep working, just enjoyed work."

93 Had the accident not occurred, then by the time he reached 67 years of age Mr Herbert would have been working in manual labour jobs for just over fifty years. I have no doubt he enjoyed his work, but that is a very long period of time to undertake physical labour. The brief evidence from Mr Herbert does not dissuade me from concluding that the likelihood is that, absent the accident, Mr Herbert and his body would have called time when he qualified for the aged pension.

94 At this point it is appropriate to note s 13 of the CLA which provides:

"Future economic loss - claimant's prospects and adjustments

(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury.

(2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury.

(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted."

95 For the purposes of these provisions I record that Mr Herbert's most likely future circumstances, but for the injury, involved him continuing to work until the age of 67 in his existing work (or its equivalent) at the rate equivalent to net earnings as at the date of verdict of $670.00 per week. The adjustment required by s 13(2) is the usual deduction of 15% for vicissitudes. Otherwise the award for future economic loss should reflect my finding that Mr Herbert does not have any residual earning capacity.

Past and future care

96 As is to be expected, from the time of the accident Mr Herbert received significant care and support from his wife. At times this involved a very significant investment of her time. However Mr Lidden SC accepted that it had not been demonstrated that the dual thresholds in s 15(3) of the CLA had been met so as to enable the recovery of an amount for gratuitous attendant care services provided in the past. In this respect the CLA has shifted the burden of loss away from Clarendon onto the family of Mr Herbert.

97 However Mrs Herbert has a degenerative disc disease. Mr Herbert makes a claim for paid assistance in the future bearing in mind that his wife will find it increasingly difficult to assist him.

98 Mr Lidden SC formulated a claim for four hours of paid care a week for five years and then eight hours a week thereafter. The claim for four hours was derived from Mr Herbert's statement in which he stated:

"I estimate that I will require in the order of 4 hours paid domestic assistance in the future to look after the lawn mowing and general maintenance around the house all of which I attended to prior to the accident. I would also require assistance in respect to the maintenance and cleaning of our motor vehicles. That is at the present time. Unfortunately my leg is going downhill and I think that much more would be needed in the future."

99 The claim for the higher amount in later years was in part derived from this evidence and in part was said to flow from the contention that Mr Herbert's arthritis was likely to deteriorate significantly and it was unlikely that he would have replacement surgery to correct it.

100 Mr Cavanagh SC submitted that a figure of only three hours per week should be accepted. He relied on a statement in the joint report that "Mr Herbert requires domestic and/or personal assistance in the order of three hours per week due to ongoing work-related left leg disability".

101 While the statement in the joint report is deserving of significant weight, it is obviously not determinative. In this case Mr Herbert is in as good a position as the doctors to indicate the level of assistance he will need. I found him to be an impressive witness who was not prone to exaggeration and quite properly accepted propositions put to him by Mr Cavanagh SC that were arguably contrary to his interests. I accept his estimate that four hours per week is required.

102 I have already discussed Mr Herbert's future prognosis. It is obviously subject to considerable uncertainty but the various risks were asymmetric in that there is at least a possibility of significant deterioration, but none of the parties suggested that there was any countervailing possibility of significant improvement. In those circumstances the need to make allowance for the realistic possibilities associated with the deterioration, potentially serious, in his leg warrant some extra award to account for the possibility that he may need further paid care in the future beyond the four hours that I have already allowed. Allowing for the uncertainties that I have described, I will allow an amount represented by an extra hour and half per week after ten years.

Past out of pocket expenses

103 These were agreed at $93,225.00.

Future out of pocket expenses

104 A number of items were sought by Mr Herbert which answer the description of future out of pocket expenses.

105 The first item concerned pharmaceutical expenses. In his evidence Mr Herbert stated that at the time of the trial he was taking anti-depressant medication, pain killing medication, sleeping pills and antibiotics. He explained that at least one of the pain killers was a narcotic consisting of a mixture of morphine and codeine. It seems to have been common ground that Mr Herbert was taking around fourteen different medicines at the time of the trial.

106 The parties agreed on the current cost of the medicines that Mr Herbert was receiving, making allowance for his personal circumstances and the level of government subsidy. This yielded a figure of $45.80 per week or $35,861.00 for the future having regard to his life expectancy. Mr Cavanagh SC submitted that the Court should regard that as the maximum figure to be allowed. He submitted that the Court should adopt some lesser figure. He contended that it was inherently unlikely that Mr Herbert would continue to consume the number and amount of medicines that he currently does. In particular he pointed to the use by Mr Herbert of narcotic analgesics as pain killers on a long term basis. Both Dr Wallace and Dr Henry agreed that long term use of narcotic analgesics was inappropriate, and strongly advised that he be weaned off those drugs to avoid him becoming addicted. Mr Cavanagh SC submitted that Mr Herbert simply could not continue to use those type of drugs for a long period otherwise his life expectancy could be expected to decline. Mr Lidden SC did not disagree with Mr Cavanagh SC's approach as a matter of principle, but pointed to various contingencies that might increase either Mr Herbert's need for medicine or its cost (such as changes to government policy).

107 Other than the reference to the use of narcotic analgesics, it was not specifically suggested that the consumption of any other medicine by Mr Herbert might diminish over time. That said it seems unlikely that Mr Herbert could consume the level of medicines he does on a long term basis. I think it more likely that it would decrease and not increase. I do not consider that any allowance for possible adverse changes to government policy in relation to the subsidisation of medicines should be allowed. At least in the case of a person in Mr Herbert's position, the risks appear symmetrical, ie the risk of adverse changes appears to be balanced by the risk of beneficial changes.

108 I will allow an amount of $28,000.00 for the future cost of medicines.

109 The second item was the cost of monthly visits to Mr Herbert's general practitioner, Dr George Albert. Mr Cavanagh SC accepted that it was appropriate to make an allowance for that in the amount sought ($14,094.00).

110 The third item was the cost of a knee stocking replacement. Mr Herbert recounted his use of a compression bandage when his osteomyelitis periodically flared up. I accept that an allowance in the amount sought ($1,566.00) should be made.

111 The fourth item claimed on Mr Herbert's schedule of damages was the cost of seeing a psychiatrist. In support of this claim Mr Lidden SC referred to Dr Jungfer's report. Dr Jungfer only suggested referral to a psychiatrist in the event that a general practitioner was unable to prescribe antidepressant medication. There is no suggestion that Dr Albert experienced any such difficulty. I reject this aspect of the claim.

112 The fifth item claimed was an amount for the cost of seeing a psychologist. Mr Herbert sees a psychologist attached to a medical practice once a month. I will allow an amount of $5,000.00 for this item.

113 The sixth item claimed was an allowance for physiotherapy costs. There was no evidence that Mr Herbert saw a physiotherapist. None of the medical reports suggested that he should see a physiotherapist. I reject this aspect of the claim.

114 The seventh item claimed was an allowance for the costs of future knee replacement surgery. The estimate of the cost was $40,000.00. It follows from the above discussion that I consider that it is unlikely that he and his treating doctors will decide to pursue that surgery. That consequence is reflected in the above assessment of general damages which embraces the likelihood, but not the certainty, that he will not have an operation and that his knee will deteriorate from arthritis, although not necessarily to the point of rendering him immobile. However I cannot exclude the realistic possibility that a decision will be made to pursue a knee replacement. Thus, consistent with Malec v J.C. Hutton Pty Ltd, some allowance should be made for it. I will allow $5,000.00 for the possible cost of the operation.

Future disposition

115 As I understand the position, the above findings resolve all the outstanding issues between the parties so that the determination of the quantum of Mr Herbert's verdict only requires an arithmetical calculation using the above findings as appropriate integers. Based on these findings the parties should prepare calculations upon the assumption that the Court will enter a verdict on 5 September 2013. I will fix the matter at 9.30am on that day and in the meantime direct the parties to prepare competing forms of orders and calculations of Mr Herbert's damages. The parties should also file and serve any submissions on costs. Such submissions should not exceed four pages. The parties should indicate in those submissions if they wish to supplement those submissions orally, in which case they will be given a brief opportunity to do so on 5 September 2013. If there is some issue relevant to the calculation of damages that has been overlooked, the parties should also note that as well.

116 Needless to say, if the parties are in agreement on the consequences that flow from the findings that I have made, they can notify my Associate and file agreed forms or orders. To that end, I will reserve liberty to apply.

117 Accordingly the Court orders that:

(1) The proceedings stand over to 5 September 2013 at 9.30am.

(2) The parties file and serve draft forms of orders, competing calculations of the plaintiff's damages and any submissions on costs and the matters noted in [115] of this judgment, such submissions not to exceed four pages, on or before 30 August 2013 and provide copies by email to the Associate to Beech-Jones J.

(3) There be liberty to apply.

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Decision last updated: 23 August 2013