Agresta v Agresta

[2010] NSWCA 330

New South Wales

Court of Appeal

CITATION:	Agresta v Agresta [2010] NSWCA 330
HEARING DATE(S):	25 October 2010
JUDGMENT DATE:	7 December 2010
JUDGMENT OF:	McColl JA at 1; Macfarlan JA at 2; Sackville AJA at 45
DECISION:	(1) Appeal allowed in part; (2) Set aside the judgment for $303,551 entered in favour of the respondent; (3) Direct that if the parties are able to agree as to the substituted judgment to be entered in favour of the respondent they lodge with the Court within seven days of the date of this Judgment a signed Consent Order; (4) Direct that if the parties are unable to agree as to the amount of the substituted judgment to be entered in favour of the respondent that: (a) Within seven days of the date of this Judgment the appellants lodge a proposed form of Orders and any Written Submissions in support; (b) Within seven days thereafter the respondent lodge her Written Submissions in response; (c) Within seven days thereafter the appellants lodge any Written Submissions in reply; (d) The issues the subject of the Written Submissions be determined by the Court on the papers without the need for any further oral hearing; and (5) Order the appellants to pay three-quarters of the respondent’s costs of the appeal; and (6) The respondent to have a certificate under the Suitors’ Fund Act 1951, if qualified. [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:	TORTS – negligence – whether negligent to allow inexperienced respondent to use unguarded mincing machine in a situation in which she could easily be distracted – whether respondent’s awareness of risk negated finding of negligence – whether negligent not to replace mincing machine - TORTS – contributory negligence – whether respondent's conduct was mere momentary inattention not amounting to negligence - DAMAGES – gratuitous domestic assistance – Civil Liability Act 2002 – whether evidence justified finding of level of need for assistance made by primary judge
LEGISLATION CITED:	Civil Liability Act 2002
CATEGORY:	Principal judgment
CASES CITED:	Hill v Forrester [2010] NSWCA 170 Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 Sungravure Pty Ltd v Meani [1964] HCA 16; (1963 – 1964) 110 CLR 24
PARTIES:	Pasquale Agresta (First Appellant) Barbara Agresta (Second Appellant) Maria Agresta (Respondent)
FILE NUMBER(S):	CA 2009/326947
COUNSEL:	A Scotting (Appellants) R Burbidge QC/D J Price (Respondent)
SOLICITORS:	Sparke Helmore (Appellants) Mackenzie & Vardanega (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 8/2008
LOWER COURT JUDICIAL OFFICER:	Sweeney DCJ
LOWER COURT DATE OF DECISION:	30 November 2009

CA 2009/326947

McCOLL JA
MACFARLAN JA
SACKVILLE AJA

7 DECEMBER 2010

AGRESTA v AGRESTA

Judgment

1 McCOLL JA: I agree with Macfarlan JA’s reasons and with the orders his Honour proposes.

2 MACFARLAN JA: On 14 March 2005 the respondent, Mrs Agresta, joined her extended family at the fruit farm of her brother-in-law Pasquale (‘Pat’) and his wife Barbara (the appellants) for the purpose of making tomato sauce. There was a long-standing annual tradition in the family for this to occur. At that time Mrs Agresta was 61 years of age and had four adult children.

3 The first step in the sauce-making operation was the washing and cutting of the tomatoes. After being placed in large baskets, the tomatoes were put in a mincing machine. It was the practice for the men of the extended family to use the machine. Although she had seen it being used over a period of 15 years, Mrs Agresta had never herself operated the machine.

4 Towards the end of the operations, Pat was operating the machine when he was called to go elsewhere. He asked Mrs Agresta to take over the operation of the machine, to deal with the remaining tomatoes.

5 She commenced to put tomatoes in the machine in the way that she had seen that done in the past, that is, by putting the tomatoes in the hopper of the machine without letting her hands go inside it. She did this for about 10 to 15 minutes until she was distracted by a question from another family member as to whether the quantity of sauce in a particular bottle was sufficient. Mrs Agresta said that she probably turned away from the machine to respond to the question. In any event, at that point she accidentally allowed her left hand to go down into the hopper. She was severely injured by the cutting elements of the machine. The tops of her middle and ring fingers on her left hand were amputated to the first joint and she lost the pads of her index and little fingers on that hand.

6 Thereafter Mrs Agresta commenced the present proceedings claiming damages for negligence from the appellants. Her Statement of Claim did not define with any precision the duty of care that she alleged that the appellants owed to her. By implication the duty was alleged to be owed in part by reason of the appellant’s occupation of the premises and in part by reason of the appellants permitting Mrs Agresta to operate what was a potentially dangerous machine. In any event no point concerning the existence or scope of the duty of care was argued at first instance or on appeal. Further, the appellants did not contend that the second appellant might be in a different position to that of the first appellant by reason of the fact that the request for Mrs Agresta to operate the machine came from the first appellant and not from the second appellant. The appeal was argued upon the assumption that they were equally responsible for that request having been made.

7 The particulars of negligence contained in the Statement of Claim included the following:

“a. Exposing the Plaintiff to an unnecessary risk of injury.
…
c. Failing to warn or instruct the Plaintiff adequately or at all as to the dangers arising out of the operation of the machine.
…
e. Failing to provide a safety guard or any other means to prevent a hand entering the hopper”.

The judgment at first instance

8 Sweeney DCJ gave judgment for Mrs Agresta in the sum of $303,551. So far as is relevant to the limited issues on appeal, her Honour’s judgment was to the following effect.

9 Her Honour described the focus of Mrs Agresta’s counsel’s submissions as “using the machine without a guard to prevent a hand entering the hopper or a utensil or chute to allow tomatoes to be placed in the machine without a hand coming near the machine” (Judgment [6]).

10 Her Honour accepted evidence of Mrs Agresta that her Honour described as follows:

“14. Mrs Agresta said she could not see the blade in the machine because it was covered by tomatoes but she knew something in the machine was crushing the tomatoes and she consciously knew that if she put her hand in the machine she could be hurt. She said one has to look and concentrate when using the machine because it is dangerous. She said she was distracted and must have just taken her concentration from the machine when she looked at her niece.
15. She said Pat Agresta has bought a new machine which has a chute to put the tomatoes in so a hand cannot get near the crushing mechanism”.

11 Her Honour then referred to a report by an ergonomist, Ms Maria Lusted, that Mrs Agresta tendered. The judge noted that Ms Lusted’s expertise was not challenged and that she was not cross-examined. The judge referred to Ms Lusted’s evidence in the following passages:

“19. The plaintiff tendered photographs of the machine and the machine was in court and I inspected it. Its appearance corresponded with the photographs. What I have called the hopper is an inverted bell shape with a hole in the bottom through which can be seen a thick screw shaped blade, which Ms Lusted called an auger. Ms Lusted measured the top of the hopper as being 170mm wide, and the internal diameter as 80mm, large enough, she said, to admit an adult hand. She noted the auger has large gaps, which can be seen in the photographs attached to her report. Although Ms Lusted did not measure the depth of the hopper, it appears, from examination to be about 10cm. Ms Lusted observed, and observation of the machine confirms, that there is no feeder tray or other guard on the machine to prevent a hand going into the machine where the auger is. The switch is located behind the motor, inaccessible to someone whose hand is caught in the machine. Ms Lusted’s opinion is that the machine presents a hazard in a situation where people are talking to the person operating the machine, it being human nature to look at the person who speaks to you.
20. Ms Lusted’s conclusion was that the machine, with an aperture of 80mm, large enough to admit a human hand, presents an obvious risk. She said that the risk of a hand falling into the mouth of the mincer during a moment of inattention is high. She said that the machine should have been used with a tray with a feeder chute attached to the aperture. The diameter of the feeder hole in the tray can and should be designed to be too small to admit a human hand and the distance of the feeder hole from the auger or blade should be long enough so that the user’s fingers cannot reach the blade. An electronic system can also operate on such a machine to turn off the power if the tray is removed, to stop the auger from operating when it is exposed. Ms Lusted said a machine with such a tray and chute is available in Australia for $495. She attached to her report a brochure with a photograph of such a machine. The photograph shows a tray atop a cylindrical chute which is affixed to the mincing part of the machine, such that a hand cannot come into contact with the blade or auger”.

12 The judge found that there was a foreseeable risk of injury to Mrs Agresta’s hand which was not removed by the fact that the machine had been used without a guard or chute, apparently without an accident, for 15 years prior to Mrs Agresta’s accident. Her Honour thought that the fact that use of the machine had been limited to the same operators, that is, to the men of the family, tended to lend some support to the conclusion that the risk of injury to Mrs Agresta was foreseeable. Her Honour then dealt as follows with the question of how a reasonable person in the position of the appellants would have responded to that risk:

“22. The question then arises what response did reasonable care require the defendants to make in the circumstances. The defendants submitted that no response may have been reasonable, and that reasonable care by the defendants could not have avoided the plaintiff’s inadvertence.
23. The defendants were entitled to expect that Mrs Agresta would take reasonable care for her own safety. She did in her ordinary use of the machine, cupping her hands above the hopper and dropping tomatoes into it. It was when she was distracted by her niece that her hand dropped into the area where the auger was exposed. It is worth noting that Mrs Agresta was using this machine for the first time. She was asked to take on the unfamiliar task of using the machine without any instruction or advice from Pat Agresta. She followed the procedure she had learned from watching him use the machine. It was foreseeable, indeed highly foreseeable, in the circumstances of the family members being jointly engaged in the sauce making exercise that someone would speak to Mrs Agresta while she was at the machine”.

13 Having noted that the provisions of the Civil Liability Act 2002 dealing with “obvious” risks (ss 5F – 5H) were concerned only with the existence of a duty to warn of a risk, her Honour reached the following conclusions on the issue of negligence:

“30. According to the unchallenged evidence of Ms Lusted the risk of a person’s hand being injured by the auger of the machine should have been obvious to a reasonable person in Mrs Agresta’s position. On Mrs Agresta’s own evidence she was aware of the risk – it was obvious to her. She said that although she could not see the blade because it was covered by tomatoes, she knew something was crushing the tomatoes and she knew that if she put her hand in the machine she could be hurt, and that she had to look and concentrate when using the machine because it is dangerous.
31. However that does not mean that Mr Agresta did not have to warn Mrs Agresta about the machine when he asked her to use it, as part of his taking reasonable care in response to the risk of injury from the machine. That is because he asked Mrs Agresta to use the machine, with which she was not familiar because she had never used it, without giving her any direction or advice about the use of the machine and care in its use. A warning in these circumstances did not require any elaborate or expensive means; it simply required Mr Agresta to say something to Mrs Agresta when he asked her to take over at the machine, emphasising that she should keep her hands clear of the crushing mechanism at all times, including if she was spoken to, which was not an unreasonable event to expect to occur in the circumstances of the family working together.
32. By failing to give Mrs Agresta a warning and by operating the machine without a guard or chute to prevent a hand from being able to come into contact with the blade or auger Mr Pat Agresta and Mrs Barbara Agresta, as occupiers of the farm, were negligent.
33. If Mrs Agresta had been warned, that may not have prevented her hand from dropping inadvertently into the machine’s hopper when she was distracted, so that may not have been sufficient. However if the machine had had a guard, or particularly the tray and chute featured in Ms Lusted’s report, the injury could not have occurred because Mrs Agresta’s hand would not have been able to come into contact with the crushing or mincing mechanism of the machine. Thus the defendants’ operation of the machine in its unguarded condition caused the injury to Mrs Agresta’s fingers”.

14 The primary judge then rejected a defence of contributory negligence, expressing her conclusion as follows:

“36. The circumstances were that Mrs Agresta adopted a careful procedure for using the machine by cupping her hands above the hopper and dropping the tomatoes into it by opening her hands. When her niece spoke to her and she looked at her to respond was when her hand dropped into the hopper and was caught by the auger. That someone might speak to Mrs Agresta while she was performing her task and distract her would not be unusual in the circumstances of this family gathering to make sauce. In my view Mrs Agresta was taking reasonable care for her safety in her general operation of the machine. Her becoming distracted when her niece called to her for advice and letting her hand drop into the machine amounted only to momentary inattention on her part, not negligence by her”.

15 Her Honour then assessed damages. I shall deal with the only aspect of that assessment which is in issue on appeal, namely damages for gratuitous domestic assistance, later in this judgment.

Negligence

16 The appellants’ first ground of appeal was in the following terms:

“The trial judge erred in concluding that the appellants had breached the duty of care owed to the respondent because the evidence led by the respondent was incapable of establishing on the balance of probabilities that a reasonable response to the risk was for the appellants to purchase a machine of a safer design that would have prevented the respondent’s injury”.

17 This ground of appeal assumes that the effect of her Honour’s judgment was that the appellants were negligent because they did not purchase a machine of a safer design. In fact, the gravamen of her Honour’s decision was that the appellants were negligent in allowing Mrs Agresta (indeed the first appellant requested her) to operate the machine in its unguarded condition. This is in my view apparent from her Honour’s reference to the focus of Mrs Agresta’s counsel’s submissions (see [9] above), from her conclusion in Judgment [32] that the appellants were negligent “by operating the machine without a guard or chute … ” and from her finding as to causation in the last sentence of [33] of the judgment (see [13] above). Seen in this way, the judge’s finding of negligence is one with which I agree.

18 To have allowed Mrs Agresta, indeed requested her, to operate the machine in its unguarded condition was in my view negligent. Mrs Agresta had no experience in the use of this machine and, on the evidence, the appellants had no reason to think that she had. To avoid injury, an operator required either high, prolonged concentration or experience that had developed an instinctive safe method of operation. Mrs Agresta did not have the latter and the risk of her having a momentary lapse of concentration in the co-operative family situation in which she was operating the machine was high. There was a significant risk that, as happened, that she would at some stage when using the machine be distracted.

19 The fact that Mrs Agresta was aware of a risk in the operation of the machine is no answer to her case. Mrs Agresta accepted in cross-examination that she understood that if she put her hand in the machine it was going to cause injury. She said that, as a result, she was being “very careful” (Transcript p 29). However she said also that she was not able to see any “blades” in the machine because of the tomatoes that were in it. The proximity of the auger to the bottom of the hopper and the magnitude of the danger would therefore not have been as clear to her as they would have been to someone who had become familiar with the operation of the machine over a period of years. In any event, awareness of the risk was not an answer to Mrs Agresta’s case because continuous concentration was required of her and even for a person, such as Mrs Agresta, who was attempting to concentrate and was aware of a risk of injury, a lapse in concentration was a real possibility.

20 In these circumstances it was not in my view critical for her Honour to find, as she did, that a new machine with appropriate safety features could be purchased for a cost of $495. As the appellants pointed out, there were difficulties with this finding as the evidence upon which it was based did not relate to availability in the market at the time of the accident and did not make it clear that the alternative machine was comparable in performance to that which the appellants had in operation on 14 March 2005.

21 Unavailability of a replacement machine, or alternatively lack of proof by Mrs Agresta of the availability of an alternative machine, does not mean that the appellants were not negligent in allowing, or requesting, Mrs Agresta to use the existing machine. The alternative of not letting her use (or requesting her to use) the existing machine was readily available. Knowing of Mrs Agresta’s lack of experience and being aware of the real prospect of Mrs Agresta being distracted in her operation of the machine, a reasonable person in the position of the appellants would not in my view have let her, or requested her to, take control of the machine on that day. The fact that there might have been another alternative available to the appellants, namely, to purchase an alternative machine which had appropriate safety features, is in these circumstances beside the point.

22 The appellants’ other ground of appeal on the issue of the appellants’ liability was as follows:

“The trial judge erred in concluding that that there had been a breach of the duty of care owed to the respondent, and should have concluded after taking into account the obviousness of the risk and the domestic nature of the activity that a reasonable response to the risk was to do nothing”.

23 This ground is largely answered by what I have already said. The thrust of the appellants’ submissions in relation to it was that the machine created a risk that was comparable to many risks encountered in domestic situations, such as those created by sharp knives, stairs, broken glass and lawn mowers, and that the law does not require elimination of all such risks. As the appellants submitted, a duty of care only requires the taking of steps that are reasonable in all the circumstances to respond to a foreseeable risk of injury and consideration of whether steps are reasonable involves a prospective, and not a retrospective, inquiry. Nevertheless when in the context of the present case the question of breach of duty is considered in this fashion, the nature of the machine, the inexperience of Mrs Agresta and the circumstances in which she came to operate the machine indicate that the appellants were in breach of duty to her by allowing that operation. The fact, upon which the appellants relied, that the machine appears to have been operated for some 15 years without accident does not assist them as the evidence suggested that that previous operation had been by male members of the family who were experienced in use of the machine.

24 For these reasons no error has been shown in the primary judge’s conclusion that the appellants were in breach of a duty of care owed to Mrs Agresta.

Contributory negligence

25 The appellants challenged the primary judge’s finding that Mrs Agresta was not guilty of contributory negligence (see [14] above). In my view this challenge should fail.

26 Mrs Agresta gave uncontested evidence that she was “being very careful” and to concentrate when operating the machine (Transcript p 29). As identified by the High Court in Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492, the question to be asked in a context such as the present is whether, assuming that the defendant has been negligent and taking into account all relevant circumstances, the plaintiff’s conduct “amounted to mere inadvertence, inattention or misjudgment, or to negligence” (at 493). The primary judge did not err in finding that Mrs Agresta’s conduct was appropriately described as one of the former, that is, as the primary judge put it, “momentary inattention”. As Ms Lusted pointed out, there was in light of the nature of the machine and the circumstances in which Mrs Agresta was operating it a high risk that Mrs Agresta might be injured as a result of a moment of inattention on her part when talking to others who were involved in the sauce-making operation (see [11] above).

27 Relying upon the judgment of Windeyer J in Sungravure Pty Ltd v Meani [1964] HCA 16; (1963 – 1964) 110 CLR 24 at 37 – 38, the appellants submitted that for the respondent to maintain the judgment in her favour the Court needed to conclude that a reasonable person in Mrs Agresta’s position might have been inattentive or inadvertent and that it should not do so (Written Submissions [34]). However in my view such a conclusion is clearly appropriate. Accordingly I see no error in the primary judge’s conclusion to that effect.

Damages for gratuitous domestic assistance

28 The only aspect of damages that was ultimately in issue on the appeal was the primary judge’s award of damages for gratuitous domestic assistance as follows:

“Past Care
6 months – 6 weeks = 20 weeks x 15 hours @ $22 [per hour]	$6600
4 years + 6 weeks = 214 weeks x 10 hours @ $22 [per hour]	$47,080
Future Care
715 weeks x 10 hours @ $30 [per hour]	$214,500”

(Judgment [77]).

29 The primary judge referred at the outset of her reasoning on this issue to the limitation that s 15 Civil Liability Act imposes on the recovery of damages of this type. Relevantly, the section provides as follows:

“(2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that:

(a) there is (or was) a reasonable need for the services to be provided, and
(b) the need has arisen (or arose) solely because of the injury to which the damages relate, and
(c) the services would not be (or would not have been) provided to the claimant but for the injury”.

30 The appellants did not contend (even if the allowance were reduced to the level for which they contended) that the six hours per week and six consecutive months’ requirements in s 15(3) (as to which, see recently Hill v Forrester [2010] NSWCA 170) were not satisfied.

31 The judge found that Mrs Agresta’s ability to do housework, cooking and work in the garden was adversely affected by her injuries and that as a result of those injuries, her husband, and to a lesser extent Mrs Agresta’s daughters, had assumed some responsibility for those tasks.

32 The judge found that Mrs Agresta required gratuitous domestic assistance for 15 hours per week for the first six months after the injury, excluding a period of six weeks she spent overseas on holiday. This finding was not challenged on appeal.

33 The judge’s conclusions as to the period commencing six months after the date of the accident and concluding at the date of the trial, and as to future care, were expressed as follows:

“74. … After the first 6 months the evidence permits me to allow 10 hours per week assistance with household tasks. The rate claimed of $22 per hour was said to be an average of rates over the period March 2005 to date. There was no dispute by the defendants about the rate and it seems to comply with the requirements of s 15(4) and (5) of the Act. I propose to accept that rate.
75. The claim for future care is for 2 hours per day. Mr Agresta’s evidence was that he spends about 2 hours per day in tasks he previously did not do: food preparation, some cooking, house cleaning tasks and attending to the lawn and garden. I accept his estimate was truthful. Mrs Agresta’s evidence was that three hours per week would cover the major household cleaning tasks, being cleaning the floors, bathroom and kitchen. There is some slight tension between Mrs Agresta’s estimate and Mr Agresta’s. If I make a further allowance, in addition to the major cleaning, for Mr Agresta attending to the lawns and garden and assisting with food preparation and cooking I consider a reasonable allowance is 10 hours per week. There seemed to be no dispute about the commercial rate claimed of $30 per hour. The claim assumed a life expectancy of just under 14 years which, given Mrs Agresta’s current age of 66, seems reasonable. There was no evidence that any of her other health conditions are likely to adversely affect that estimated life expectancy”.

34 The appellants did not challenge the hourly rate that her Honour applied. Their challenge was to the number of hours that her Honour allowed. Their submissions were to the following effect:

(a) There was no evidence that as at the date of trial Mrs Agresta’s injuries affected her ability to prepare food for cooking or to cook (Written Submissions [42]);

(b) Whilst the injuries caused some difficulties for Mrs Agresta her injuries did not prevent her doing most of the household cleaning (Written Submissions [43]);

(c) The evidence did not justify an allowance of more than 6½ hours per week from September 2005 (six months after the accident) to July/October 2008, 3 hours per week from July/October 2008 to October 2009 (the date of the trial) and 3 hours per week for future care (Written Submissions [45], [50] – [52]); and

(d) Included in these postulated allowances was an allowance for two hours per week for outdoor work that the appellants did not dispute (Written Submissions [43]).

35 The primary judge said that she accepted as truthful Mr Agresta’s estimate of spending two hours per day doing tasks that he had not had to do before the accident (Judgment [75] quoted in [33] above). Her Honour however clearly did not accept this estimate as accurate, or at least not as entirely accurate, as she only allowed 10 hours per week rather than the 14 hours per week (or more, if the assistance of Mrs Agresta’s daughters were taken into account) suggested by Mr Agresta’s evidence.

36 The components of the allowance of 10 hours per week that her Honour found to be justified comprised, first, three hours per week in respect of major household cleaning tasks, secondly an allowance for outdoor work and thirdly an allowance for Mr Agresta assisting with food preparation and cooking (Judgment [75]).

37 I turn to the first component. Mrs Agresta’s evidence was that the major household cleaning was done once a week and probably took about two hours (Transcript p 25). She said that the overall cleaning, including that major household cleaning and also cleaning the kitchen thoroughly twice a week, would take about three hours per week (Transcript pp 25 – 27; Judgment [75]). When asked whether she still cleaned her house she said “I try but sometimes when things that I can’t do I just have to ask for my daughter to help or my husband or whatever” (Transcript p 24) and, later, when asked whether she can still clean she said “[i]t takes me longer but I do clean, yeah. If there’s something I can’t do I just call my kids to come and do it” (Transcript p 31). When asked in re-examination about the “minor cleans” during the week, as distinct from the “major cleans”, Mrs Agresta said “I do [them] all the time … I get up in the morning and I just go right through the house like not actually scrubbing walls or – I just tidy up and mop the floor … ” (Transcript p 33). She said that she mopped the floor three times per week and vacuumed a couple of times a week (Transcript p 33), that she cleaned and scrubbed the showers once a week (Transcript p 25) and that she cleaned the kitchen thoroughly twice a week (Transcript p 26).

38 The primary judge appeared to proceed upon the basis that Mrs Agresta was not able to do the “major household cleaning tasks” (Judgment [75]). However this was not the effect of her evidence (or of that of Mr Agresta). Her evidence to which I have referred to in [37] above suggested that her injuries affected her ability to do household cleaning only in a limited way. In my view, the evidence would justify only an allowance of two hours per week in respect of this component.

39 As to the second component of her Honour’s calculations, the appellants did not challenge an allowance of two hours per week for assistance in respect of outdoor work. The evidence would not sustain any greater allowance for this component.

40 So far as cooking and food preparation was concerned, Mrs Agresta’s evidence included the following. She said that she could still cook (Transcript p 31) but that because of her injuries she could not grip utensils properly and found it hard to do tasks such as cutting up meat and that her husband helped out with that work (Transcript p 15). Mr Agresta said that he does most of the cutting and food preparation “when I’m there” (which was most evenings) but that during the day Mrs Agresta “has to tend for herself” (Transcript pp 34 – 35). Bearing in mind that under s 15(2) Civil Liability Act a reasonable need has to be established this evidence does not in my view warrant an allowance of more than two hours per week.

41 It follows that I do not consider that the period of 10 hours per week that the primary judge allowed from the point of time 6 months after the accident until the trial and in respect of future care was justified by the evidence. My view is that the need established as at the date of trial and into the future should be assessed at six hours per week. The fact that this is less than the 15 hours per week that her Honour found, and the appellants accepted, was established as Mrs Agresta’s need in the first six months after the accident reflects evidence before her Honour that Mrs Agresta’s capabilities improved over time. To allow for the fact that Mrs Agresta’s level of need at the date of the trial was not reached immediately after the end of the six month period following the date of her accident but resulted from improvement after that date, I would allow an additional two hours per week, that is, eight hours per week in total, from that date until the date of trial.

42 In reaching these conclusions I have taken into account the following matters in addition to the evidence to which I have referred above. The first is that the primary judge did appear, at least to some extent, to take into account the evidence that Mr Agresta gave suggesting that the overall allowance should, at the date of the trial, be considerably greater than even ten hours per week. Secondly, I have taken into account the fact that the trial judge had the benefit of hearing the whole of the evidence and seeing Mrs Agresta. Whilst I do not consider that the whole of her Honour’s allowance is sustained by the evidence, it remains relevant that her Honour considered that a substantial award was justified.

43 The parties should attempt to agree upon the amount of damages to which Mrs Agresta is entitled as a result of the views that I have expressed. As to costs, the order made in favour of the respondent at first instance should stand. As the appellants were unsuccessful upon the principal issue argued on appeal, namely liability, and successful only to a limited extent on the other issue concerning gratuitous domestic care, my opinion is that the appellants should be ordered to pay three-quarters of the respondent’s costs of the appeal.

44 I propose the following orders:

(1) Appeal allowed in part;

(2) Set aside the judgment for $303,551 entered in favour of the respondent;

(3) Direct that if the parties are able to agree as to the substituted judgment to be entered in favour of the respondent they lodge with the Court within seven days of the date of this Judgment a signed Consent Order;

(4) Direct that if the parties are unable to agree as to the amount of the substituted judgment to be entered in favour of the respondent that:

(a) Within seven days of the date of this Judgment the appellants lodge a proposed form of Orders and any Written Submissions in support;
(b) Within seven days thereafter the respondent lodge her Written Submissions in response;
(c) Within seven days thereafter the appellants lodge any Written Submissions in reply;
(d) The issues the subject of the Written Submissions be determined by the Court on the papers without the need for any further oral hearing; and


(5) Order the appellants to pay three-quarters of the respondent’s costs of the appeal; and

(6) The respondent to have a certificate under the Suitors’ Fund Act 1951, if qualified.

: I agree with the orders proposed by Macfarlan JA and with his Honour’s reasons.

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