Anne Christina Benton v Tea Tree Plaza Nominees Pty Ltd and Westfield Shopping Centre Management Company Pty Ltd No. SCGRG 94/417 Judgment No. 5144 Number of Pages 28 Negligence Apportionment Damages (1995)

[1995] SASC 5144

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA BOLLEN(1), DUGGAN(2) AND LANDER(3) JJ

CWDS
Negligence - apportionment of responsibility and damages - Appeal by plaintiff and cross-appeal by defendant - damages for personal injury suffered as a result of falling over kerb in carpark - at trial held respondents 70 per cent responsible for the appellant's injuries and appellant responsible to the extent of 30 per cent - kerb did not comply with Australian Standards - foreseeable risk that unless kerb properly constructed pedestrian might suffer injury - held trial Judge correct to conclude that respondents had been guilty of negligence - finding of contributory negligence also correct - appellant's description of fall demonstrated lack of care.

Apportionment - only in rarest circumstances is it appropriate for appeal court to interfere with exercise of trial Judge's discretion to apportion responsibility - correct that the respondents ought to have been visited with the major share of responsibility - appeal against finding on contributory negligence and cross-appeal dismissed.

Damages - general damages - award of $50,000 low but not manifestly inadequate - loss of earning capacity to trial - $15,000 award - too great an allowance for adverse contingencies - award of $25,000 substituted. Loss of future earning capacity - $50,000 award - too great an allowance for adverse contingencies - award of $75,000 substituted. Award of $12,000 for future medical expenses not manifestly inadequate. Appellant's damages increased by $35,000 - appeal allowed and judgment entered allowing reduction for contributory negligence and exclusive of interest for $140,353.37. Giorginis v Kastrati (1988) 49 SASR 339; Wyong Shire Council v Shirt (1980) 146 CLR 40; Webb v State of South Australia (1982) 56 ALJR 912; Pennington v Norris (1956) 95 CLR 10; Watt v Bretag (1982) 56 ALJR 760 and Arthur Robinson (Grafton) Pty Ltd v Carter (1970) 122 CLR 649, applied.

HRNG ADELAIDE, 2 May 1995 #DATE 5:7:1995 #ADD 8:9:1995

Counsel for appellant:     Mr N Swan

Solicitors for appellant:    Finlaysons

Counsel for respondent:     Mr M. Steele

Solicitors for respondent: Ward and Partners

ORDER
Appeal allowed.

JUDGE1 BOLLEN J The plaintiffs were husband and wife. The wife is the appellant.

2. On 31st July 1989 the wife (the appellant and first plaintiff below) fell to the ground whilst walking in the defendant's car park adjacent to the Tea Tree Plaza Shopping Centre. She tripped on, or stumbled over, a concrete kerb put there by the predecessors in title to the respondents.

3. The first respondent (first defendant below) had purchased the shopping centre and car park after the building of the kerb. Although it was not admitted in the pleadings the case proceeded, as did the appeal, on the basis that the first respondent was owner and occupier and the second respondent the manager of the car park. It was fought at first instance and argued on appeal on the basis that the permitting of the kerb to be there, as it was, created a dangerous situation and amounted to negligence on the part of the defendants. The defendants denied negligence. It was said on behalf of the appellant that the kerb amounted to a dangerous situation, that the defendants could have foreseen that pedestrians might trip on it and that the pedestrian did trip and that that caused her injury.

4. The appellant sustained severe injury in the fall. She sued for damages and negligence. Her husband claimed for "loss of consortium". There is no appeal in "his claim". Of course if the claim of the appellant fails on the score that there was no negligence, the claim of the husband fails too.

5. The action is an old fashioned "occupiers liability" action. Of course, nowadays it must be decided on the ordinary principles of negligence.

6. The learned trial judge in the District Court found the defendants to have been guilty of negligence which caused the fall and the injury. The learned trial judge found that the first plaintiff had been guilty of negligence contributing to her injury. She reduced damages awarded to the first appellant by 30%. The learned trial judge assessed and awarded damages. I will speak of the amount later.

7. The appellant appeals. She says that she should not have been found guilty of contributory negligence at all. She complains that the assessment of damages in her favour was manifestly inadequate.

8. The respondents lodged a cross appeal against the finding of negligence and against the extent of apportionment. The respondents have filed a Notice of Alternative Contention complaining of findings touching damages.

9. Although it is the cross-appeal I will start with the issue of negligence.

10. At the time of the fall the appellant was aged 42. She had suffered injury to her back for which she had had surgery prior to the day of the fall. At the time of the fall the appellant worked for a firm called Stuart Alexander. She was a "sales merchandiser". She worked three days in each week for six hours per day. She went to supermarkets promoting goods, tidying shelves and advising on promotions. Let the learned trial judge describe what happened in the fall. Her Honour said:
    "On Monday 31 July 1989 she was asked to make a call at the
    Target and Woolworths stores at Tea Tree Plaza. This was
    not her regular territory. She did not know the area
    particularly well having been there on only about one
    occasion previously. It was a busy day and she had
    difficulty finding a place to park. She eventually parked
    her car in the space designated 'C' on Exhibit P1. She then
    proceeded between the motor vehicles which were angle parked
    adjacent to the area designated 'Raised Concrete Section'
    towards the entrance of the mall which is marked 'E' on
    Exhibit P1, as she had seen others walk in that direction.
    She saw the concrete kerb almost as she was upon it. She
    said, however, she did not realise it was 'as high as it
    was'. She did not remember which foot she put on the kerb
    first but she recalled tripping with her right foot 'which
    threw me'. She said she fell forward into the area
    designated 'Disabled Spaces'. The location of the fall is
    marked with an 'X' in Exhibit P1."

11. The appellant saw the kerb ahead of her. She tried to step on it. Somehow or other she tripped or stumbled. She fell. She asserts that the kerb was a danger. She submits that the respondents were negligent in allowing it to be there. I append the Exhibit P1. I refer to the photographs which were tendered and received in evidence. They show a kerbing somewhat higher than what one might usually expect. It is kerbing of the type seen in car parks. It divides one part of the car park from the other. The step up is a little higher than is the height of an ordinary building brick stood on its end. Much evidence was called. Mr Young, a consulting engineer with experience in traffic matters, gave evidence. Her Honour said:
    "Mr Murray Young, a consulting engineer, examined the area
    at the request of the defendants' solicitors on a number of
    occasions in about December 1992 and he prepared a report
    with respect to same (Exhibit P7). He described the
    concrete section as 'a physical barrier used to separate the
    public car park from the disabled/circulation roadway at the
    shopping centre'. The nature of the concrete section is
    illustrated in Exhibit P2 and the precise measurements are
    contained in Figure 2 of Exhibit P7. In general terms,
    however, the kerb can be described as varying in height both
    along its length and its width. The southern side from
    which the plaintiff approached varies from 170 mm to 270 mm.
    At the point at which the plaintiff fell the height was 250
    mm (i.e. 10 inches) above the pavement which Mr Young
    described as about 50 mm (i.e. about 2 inches) higher than
    the maximum kerb height recommended by the Australian
    Standards."

12. So the kerbing at the point of fall was a little higher than the recommended standard. The kerb varied in height along its length. But I think that irrelevant. The appellant walked across an aisle and then walked between two parked cars. She saw the kerb. The part which she saw was of one height. She had no less than the length of a car during which she could see the kerb ahead. She said that she saw it belatedly. There was no reason for a belated view of it. Had she been watching carefully she would have seen it when she was at the rear of the parked cars or even earlier. In any event she saw it in time to know it was there and make, on the probabilities, a step on to it. She could have seen how high it was in plenty of time. She could have seen it in plenty of time to step up high enough to get on to the flat top of the kerbing.

13. The learned trial judge said:
    "This barrier was erected in a busy car park. Although it
    was not a designated walkway it was reasonably foreseeable
    that people would cross the concrete area as it was the
    shortest route for pedestrians moving from the car park to
    the mall entrance. Landscaping at each end of the barrier
    prevented people crossing at the extremities and it could be
    anticipated therefore that pedestrians would walk across the
    concrete. The barrier was of an unusual design. There was
    no logical explanation supplied for the variation in its
    height along its length or that from side to side. Counsel
    for the defendants submitted, however, that the variation
    was irrelevant as the plaintiff had only focused on the
    section between the two cars and was therefore unaware of
    the differing heights. He also submitted that the evidence
    established that the plaintiff had placed her left foot on
    the concrete area first and had therefore successfully
    gauged the height of the kerb and that as she had tripped
    with her right foot the height was irrelevant.

I am satisfied on the balance of probabilities that the
    plaintiff placed her left foot on the kerb first but I do
    not otherwise agree with the defendants' submission. I
    accept the evidence of the plaintiff that she did not
    realise that the kerb was 'as high as it was'. The nature
    of the barrier was concealed by reason of the many cars
    parked adjacent to it. I am satisfied that it was higher
    than a normal kerb and that the variation in its height was
    such that it could cause a person to trip. The defendants
    could have easily overcome the problem by providing a
    designated space through the barrier or a level walkway
    across it.

I am satisfied therefore that the defendants were negligent.
    They failed adequately to safeguard persons moving from the
    car park to the shopping centre from the danger arising as a
    consequence of the unusual construction of the barrier."

14. With the greatest respect, I cannot agree. I think that this was merely an accident. I do not think that the fall was caused by any negligence on the part of the respondents. I do not think that the cars concealed the nature or height of the kerb. I repeat my earlier remarks about the view which the first appellant had and could have had of the kerb. I do not think that the kerb either by reason of its height or anything else was a danger. No doubt it could cause a person to trip. Of course one may trip over many things. But in the sense used in negligence actions it was not something which could be expected to cause a tripping. It was there to be seen. No special effort was needed to step on to it. It was not a trap. There was no negligence on the part of the respondents in permitting it to be there. The respondents are not insurers of the safety of those who use the park.

15. I can see no fault in the permitting of the kerb to be where it was. I would allow the cross-appeal. I would set aside the order of the learned trial judge and enter judgment in the action for the respondents.

16. Despite my view of the matter I will say something about the issue of amount of damages.

17. The learned trial judge assessed damages as follows:
    General damages
    Past                 $30,000
    Future                $20,000        $ 50,000.00

Economic loss
    Past                 $15,000
    Future                $50,000        $ 65,000.00

Special damages   $ 37,511.95
    Gratuitous services                 $ 1,000.00
    Future medical expenses             $ 12,000.00
   $165,511.95

18. The appellant sustained injury to the back and other less serious injuries which resolved. She had had trouble from the back prior to the fall. Her Honour correctly said:
    "The plaintiff was employed on a part-time basis working
    three days a week for six hours per day. Prior to the
    commencement of her employment with Stuart Alexander she had
    been in good health. In 1987, however, she started
    suffering from discomfort in the mid thoracic area as a
    result of which she was referred to Mr Hillier, an
    orthopaedic surgeon in about December 1987. Following an
    intercostal injection she suffered a lung collapse and
    subsequently consulted Dr Mercer another orthopaedic
    surgeon. He eventually referred her to Mr Girgis, also an
    orthopaedic surgeon. On 20 February 1989 Mr Girgis
    performed a spinal fusion of the L4-5 lumbo sacral levels.
    The plaintiff took four months leave of absence from work,
    without pay. She said she made a good recovery. By four
    months Mr Girgis advised her she could resume work on light
    duties and she resumed employment shortly prior to the
    incident which is the subject of these proceedings."

19. The learned trial judge later said that she found the appellant to be a truthful witness. No question of exaggeration arose. I will quote pretty well the whole of the passage in the reasons in which Her Honour came to her conclusion about the nature and effect of the injury. Her Honour said:
    "The plaintiff said that after the fall she felt pain in her
    back. Nevertheless she continued to make her calls, first
    to Target and then to Woolworths. Whilst waiting for the
    Manager of Woolworths she became quite 'riddled with pain'.
    As soon as she could she went home to bed. She took Digesic
    for the pain and the following morning her husband contacted
    Mr Girgis who advised rest. The pain did not abate and on
    the Thursday she saw Mr Girgis who arranged x-rays and again
    advised continued rest. The plaintiff underwent some
    physiotherapy and hydrotherapy without benefit. On
    17 October 1989 at Mr Girgis' suggestion she underwent an
    epidural procedure which required her to remain in hospital
    for two days. She did not receive any relief and as the
    pain continued she re-entered hospital on 30 October 1989
    for Mr Girgis to re-explore the fusion. On that occasion he
    changed the internal fixation to a Hartshill frame. The
    plaintiff remained in hospital for about three weeks but
    said her recovery was slow. She said she continued to
    suffer pain although it was different from the pre-operative
    pain and it was at about this time that she complained of 'a
    trickling down my leg'. The plaintiff appeared to make a
    little improvement. She had trouble sitting and remained
    considerably restricted in activities she could undertake.
    She eventually consulted Mr Robert Fraser in about April
    1990, shortly prior to which she started having blackouts
    and dizzy spells. On about 5 June 1990 Mr Fraser performed
    a further surgical procedure in which he removed the
    Hartshill frame. It appears, however, that his original
    intention was to effect another fusion and for this purpose
    he had taken a bone graft from the plaintiff's hip which
    caused great pain. The plaintiff remained in hospital for
    about two weeks on this occasion.

The plaintiff thought she obtained some relief from the
    removal of the frame. A few months later she made an
    attempt to resume employment. She did a 'couple of hours
    work a couple of days a week' but found it difficult.
    Sitting continued to be a problem and she said her back was
    'really bad'. In an attempt to alleviate the difficulty
    with sitting Mr Fraser gave the plaintiff an injection in
    the coccyx and in about November 1990 removed her coccyx.
    The plaintiff remained in hospital on this occasion for
    about 10 days. The plaintiff continued to suffer pain which
    she treated with an extensive range of medication and again
    returned to work on light duties. She said she worked for
    eight weeks but suffered pain in the back throughout. She
    said she was obliged to go to bed immediately upon her
    return from work. Although the evidence is unclear it would
    appear that she eventually ceased her employment sometime in
    1991.

In September 1991 her general practitioner referred her to
    Mr Carney a neurosurgeon. Mr Carney in his report dated 19
    February 1992 (Exhibit P9) thought that 'the cause of the
    plaintiff's nerve root problem probably related to the
    Hartshill and it may be that passage of wires and implements
    into the spinal canal produced some nerve root contusion or
    other damage which has resulted in chronic pain'. Mr Carney
    told the plaintiff that he did not believe further surgery
    had anything to offer and that she had two possible options,
    'One to have epidural stimulation and the other Morphine
    pump technology'. Mr Carney then referred the plaintiff to
    Dr Rounsefell of the Pain Unit at the Royal Adelaide
    Hospital. Dr Rounsefell advised the plaintiff to have a
    trial of Methadone and Tegratol to see if this medication
    would assist. Eventually she was assessed as suitable for
    the morphine pump procedure and an arrangement was made for
    that to be carried out in about March 1992.

The plaintiff subsequently cancelled the arrangement. She
    said she felt she had undergone sufficient treatment and
    wanted to concentrate on improving her mobility. She
    thereafter continued with hydrotherapy. The plaintiff said,
    however, that the pain in her leg had become increasingly
    worse and as at the date of trial she had given further
    consideration to the insertion of the pump and had decided
    to go ahead with that procedure. She said, however, that Dr
    Briscoe, a medical practitioner, assisting Mr Carney had
    realised that a new drug had become available and she was
    undergoing a trial with that in an attempt to obtain relief.
    She said that as at the date of trial there was very little
    she could do around the home. She continued to swim or
    attend hydrotherapy, she was capable of doing 'a bit of
    washing or a bit of ironing but by lunchtime I am usually on
    the bed'. Her social activities likewise were curtailed
    although I thought there was an element of subconscious
    exaggeration in her evidence on this topic.

Mr Carney supplied four reports in all dated 19/2/92,
    11/4/92, 2/8/92 and 11/5/93 (Exhibit P9) and he gave
    evidence at the trial.

Mr Girgis provided a report (undated) (Exhibit P10) and gave
    evidence at the trial.

In addition, the plaintiff was examined by Mr Garth Fraser,
    an orthopaedic surgeon on 27 July 1992 at the request of the
    Workcover Corporation He gave evidence at the trial.

The plaintiff was examined by Dr Ulman, a physician,
    specialising in disability assessment and rehabilitation.
    He saw the plaintiff with respect to an assessment for a
    superannuation claim. He gave evidence and provided a
    report dated 26/6/92 which was admitted as Exhibit P12.

The only other medical practitioner to give evidence was
    Dr Schanks, the plaintiff's general practitioner, and he
    provided two reports dated 2/3/92 and 10/2/93 which were
    admitted in evidence as Exhibit P13.

I do not propose to go over this evidence in any detail.
    There was a general consensus that the plaintiff at the date

    of trial had a significant physical disability with
    considerable on-going pain. The principal divergence of
    opinion related to the question of causation. Mr Carney,
    however, was an impressive witness. He has been the
    plaintiff's treating surgeon for nearly two years and has
    had considerable opportunity to assess her condition. I
    would not have expected Mr Girgis to attribute her problems
    to the Hartshill frame as he had inserted it. Although
    Mr Fraser thought that it was unlikely that the plaintiff's
    problems were due to nerve root damage from the Hartshill
    frame as suggested by Mr Carney he conceded that it was a
    possibility. In any event Mr Fraser saw her on one occasion
    only and for Workcover purposes. Having considered all of
    the evidence I indicate that I prefer the evidence of
    Mr Carney to that of any other medical witness wherever a
    divergence of opinion should occur.

Mr Carney said that the history of the matter suggested a
    breakdown or fracture of the fusion in the subject fall and
    I so find. Mr Girgis at the time of insertion of the
    Hartshill frame observed a break in the upper fusion which
    indicated that the fusion had somehow given way. He, as a
    result, inserted the Hartshill frame. Mr Carney attributed
    the plaintiff's continuing problems with pain to be as a
    result of nerve root problems following that procedure. I
    am satisfied that causation has been established.

In the absence of any evidence from Mr Robert Fraser,
    however, I am not satisfied that any problems which related
    to sitting and which necessitated the removal of the
    plaintiff's coccyx are related to the subject accident. No
    allowance will be made in the award with respect to that
    matter.

I am satisfied that the plaintiff has suffered considerable
    pain and discomfort and has become increasingly dispirited
    as a result of her continuing pain and the various medical
    procedures which she has undergone. Mr Carney believed that
    the insertion of the morphine pump had the potential to
    considerably reduce her level of pain but otherwise he
    thought her condition was stable. He said that the pump
    would require replacement batteries every four to five years
    which would require a two to three day stay in hospital and
    it would also require filling every five weeks. Accordingly
    the plaintiff, even with the potential alleviation of some
    of her pain will for the rest of her days have a
    considerable interference with her quality of life."

20. In the Notice of Alternative Contention the respondents complain of the finding of the learned trial judge that the appellant was unlikely ever to work again. I think that this finding was correct. It is very unlikely that this woman who has had this injury and who is still adversely affected by its aftermath will get employment. That does not mean that she has no residual capacity at all. Perhaps she will find some light work. Perhaps she will find intermittent work. That must be taken into account. And the learned trial judge did take it into account. I think, too, that the learned trial judge was on sound ground thinking that this plaintiff earned no more than $200 per week gross prior to the accident. In speaking of the loss the learned trial judge said:
    "I now turn to the question of economic loss. Exhibit P4 is
    a pay advice slip for period ending 14 July 1989 which
    indicates an hourly rate of $10.66. The plaintiff said she
    was working 18 hours per week which would equate to a gross
    weekly salary of $191.88. This slip also refers to an
    additional payment to the plaintiff by way of a standing
    charge for her car of $190. The figures contained in
    Exhibit P3, however, show a taxable income for the 1989 year
    of $5,533, the 1990 year $9,257 (this includes a car
    allowance of $5,569) and the 1991 year $6,567. Exhibit P14
    is a copy of the current Commercial Travellers Award. That
    gives a base rate of pay for a merchandiser at $362.10 per
    week with a supplementary payment of $21.70 making a total
    payment of $383.80 per week. Counsel for the plaintiff
    relied on this latter figure and submitted that, by
    reference to the actuarial tables contained in Exhibit P15,
    past economic loss prior to any deductions for contingencies
    would be $79,631 and future economic loss $269,748. Whilst
    this is perhaps a useful starting point for considering the
    issue of economic loss I believe that it has very limited
    application in the circumstances of this case. I am
    satisfied that the plaintiff is highly motivated and I
    accept her evidence that she planned to go further with the
    company. There was no evidence, however, of any such
    prospects being available apart from the evidence of
    Mr Looke. Mr Looke although honest and well-meaning had not
    been involved with the firm for some time and was not able
    to assist the court as to whether such full-time work would
    be available. The plaintiff had a limited work history
    prior to the date of the accident and no recent history of
    full-time employment. She had a significant back problem
    prior to these events which had required a fusion and the
    evidence indicates it was not solid at the time of her fall.
    Accordingly some other event could have caused a breakdown
    of the fusion. The probability is that even without the
    intervention of the accident her ability to work full-time
    and/or long-term would have eventually been curtailed by her
    pre-existing back problem. The plaintiff is, however, now
    only 42 years of age. It is unlikely that she will ever
    work again. If the accident had not occurred the fusion may
    have been totally successful in which case she may well have
    continued to work at her existing employment for many years
    to come and may have been able substantially to increase her
    hours even if full-time employment had not been available.
    The financial information provided, however, is not
    particularly helpful. It suggests at best the plaintiff's
    gross income, excluding the car allowance, was no greater
    than about $200 per week and when taking into account the
    car allowance it was in many weeks substantially less."

21. I think that much of this reasoning is sound as far as it goes. But I think that the whole of the evidence, including actuarial calculations support the view that the capacity to earn was greater than the learned trial judge found. Counsel submitted that the evidence showed that the plaintiff earned $10.66 an hour in the job which she had immediately prior to the accident and contended that there was a standing charge of $190 per week paid to her. She was paid mileage. She worked 18 hours per week prior to the accident. But an examination by the Court at the hearing of the appeal of the tax returns threw much doubt on the "standing charge". Counsel submitted that the loss prior to trial would, on the figures, amount to $79,431.04. I do not think the figures, when examined, support the amount. But I do think that they support and, indeed, demand more than the sum of $15,000 awarded by the learned trial judge. I would allow $25,000 for economic loss prior to trial.

22. Using the actuarial evidence counsel contended that the future loss could be calculated by taking the sum of $269,748, the "actuarial result", and discounting. Again I think this too generous. But the plaintiff must endure her reduced capacity for many years. I think that $50,000 for future economic loss was manifestly inadequate. A greater amount is needed to compensate the plaintiff for what she has suffered and was likely to lose by way of income in the future. I would allow $75,000. Had there been no pre-accident vulnerability of the back and no residual capacity left after the fall I would have allowed much more.

23. I come to the morphine pump. The learned trial judge found that the plaintiff would have it inserted. I think the evidence justifies this finding. For future medical expenses the learned trial judge allowed $12,000. In his outline counsel for the first appellant wrote:
    "1.1 The learned Trial Judge appears to have misunderstood
    the evidence of Mr. Carney as to the effect and the cost of
    future morphine pumps.

1.2 The learned Trial Judge refers (434.5) to Mr. Carney's
    evidence that the pump would require replacement batteries
    every 4-5 years which would require 2-3 days in hospital as
    well as filling with morphine every few weeks.

1.3 Mr. Carney's evidence is that (207.25) 'at the very
    least' the morphine pump has to be removed from the abdomen
    and replaced every 4-5 years with a new one (207.29).

1.4 The learned Trial Judge may have overlooked the evidence
    of Mr. Carney (207.29) that at the time of replacement of
    batteries, the whole unit is replaced.

1.5 In any event, the costs of this procedure on the
    evidence (208.12) are $7,000 for pump plus $2,000 for
    hospital stay i.e. $9,000 every 4-5 years or $2,000 per
    annum. Applying an actuarial calculation to this based on
    the tables in P15 (420) would produce a figure of $43,500.
    This takes no account of costs of other painkillers, the
    fact that there may be a charge for replenishments of
    morphine (208) or any contingencies for complications
    referred to by Mr. Carney.

1.6 Against this evidence the learned Trial Judge's award of
    $12,000 (439) is manifestly inadequate."

24. I think all this to be correct. Suffice it to say then that I think the amount for future medical expenses should be increased to $20,000. The pump will have to be replaced several times.

25. I think the award for pain and suffering to be manifestly inadequate. The plaintiff suffered much in the past. She will still be caused pain or discomfort, at times, for many years. I would increase the past allowance to $40,000 and the future to $35,000.

26. I think that the assessment should have been $213,511.95.

27. I would allow the appeal, set aside the orders of the learned trial judge and enter judgment for the respondents.

JUDGE2 DUGGAN J The facts of this matter are set out in the judgments of Bollen and Lander JJ.

2. The firstnamed appellant fell as she was attempting to step over a barrier kerb which had been erected in the car park of a busy supermarket. If she had continued on in the direction in which she was heading she would have walked a step or so across a concrete separator 1.5 metres in width and then stepped down onto another section of the car park reserved for disabled persons. Although she managed to get her left foot up onto the raised area, she tripped as her right foot followed through.

3. There is no relevance for present purposes in the fact that the height of the kerb varied along the whole of its length. She had in her view only that section of the kerb which could be seen between the parked cars and there was no discernible difference in height along this section.

4. However the kerb was unusually high. The highest kerb recommended in the Australian Standard is 200 mm (8") for a barrier to prevent vehicles from mounting the kerb and gaining access to areas such as reserves or parklands. There was evidence that the Department of Road Transport sometimes uses a kerb of 230 mm adjacent to parklands. However the kerb in the present case was 50 mm higher than the highest recommended standard for any sort of kerb.

5. Care must be taken not to attach too much importance to standards in cases such as the present. Failure to follow a standard does not, without more, establish negligence. O'Connor v Hansen Wilckens Hornibrook Constructions Ltd
(1968) 42 ALJR 239; Crisa v John Shearer Limited (1981) 27 SASR 422 at 428. However the evidence does establish that the kerb in the present case was significantly higher than might be expected in these circumstances and that it was higher than necessary for the purpose it was intended to serve.

6. In my view a step or kerb of this height in an area where pedestrians might be expected to walk presents an unnecessary risk and I think that negligence on the part of the respondents was established. Furthermore I would not interfere with the learned trial judge's apportionment of responsibility.

7. I agree with what Lander J has had to say in relation to the assessment of damages and I would increase the award to the extent suggested in his judgment.

JUDGE3 LANDER J This is an appeal by the firstnamed plaintiff and a cross-appeal by the defendants from a decision of Judge Nyland (as she then was) in the District Court of South Australia, given on 17 February 1994.

2. The appellant's claim was for damages for personal injury suffered as a result of falling in a carpark owned and occupied by the firstnamed respondent, and managed and controlled by the secondnamed respondent. The appellant's husband was also a plaintiff in the proceedings before her Honour. He claimed and obtained an award for loss of consortium. Although he does not appeal to this Court, because his award is derivative of his wife's action, then the award made in his favour will stand or fall on the respondent's cross-appeal.

3. The appellant's claim was that her fall was caused by the negligence of one or both of the respondents in the installation of a kerb in the area of the carpark and in failing to provide a safe path or walkway through the carpark, and/or failing to warn the appellant of the danger posed by the kerb. During the trial it was recognized by the appellant that neither of the defendants had been responsible for the construction of the kerb and accordingly the appellant amended her particulars of claim, and the allegations of negligence, so as to assert that the respondents were guilty of negligence in permitting the kerb to remain in a dangerous condition.

4. The respondents denied negligence, and in the alternative, pleaded that the appellant was guilty of contributory negligence in failing to take proper care for her own safety.

5. At the hearing of the appeal, Mr Steele, who appeared for the respondents, claimed that the respondents' defence could be understood to mean, that not only did the respondents deny that there was a breach of a duty of care, but they denied that any duty of care was owed by them to the appellant. The defence could be understood as denying a duty of care, only if a plea denying each and every allegation of negligence could be understood to be a denial of the existence of a duty of care. In any event, there was no objection to the assertion that the matter had proceeded upon the basis of the denial by the respondents of the existence of a duty of care owed to the appellant.

6. At the trial before her Honour, the appellant succeeded in establishing negligence against the respondents, and the respondents succeed in establishing contributory negligence on the part of the appellant. Her Honour apportioned responsibility for the accident upon the basis that the respondents were 70 per cent responsible for the appellant's injuries, and the appellant responsible to the extent of 30 per cent.

7. Her Honour assessed the appellant's damages as follows:-
    General damages
    Past                 $30,000
    Future                $20,000        $ 50,000.00

Economic loss
    Past                 $15,000
    Future                $50,000        $ 65,000.00

Special damages   $ 37,511.95
    Gratuitous services                 $ 1,000.00
    Future medical expenses             $ 12,000.00
   $165,511.95

8. In accordance with her decision on liability, that amount was reduced by 30 per cent and the appellant was allowed judgment against the respondents in the sum of $115,858.37. Her Honour allowed the parties to be heard on the question of interest, but that is not a matter which concerns this Court.

9. The appellant complains that her Honour erred in reducing the damages by 30 per cent and argued that there ought to have been no finding of contributory negligence, or if there was to be such a finding, the apportionment arrived at by her Honour, was disproportionate to the fault of each of the parties. On the other hand, the respondents have cross-appealed against the finding of negligence against them. They say, in the alternative, that if they were negligent, a greater degree of responsibility ought to have fallen upon the appellant. The appeal and the cross-appeal therefore raise for consideration the three questions of negligence, contributory negligence, and if a finding of both, the apportionment of responsibility between the parties.

10. The appellant also complains of the assessment of damages, and in particular, complains that the award in relation to non-economic loss, loss of earning capacity, both past and future, and the award for future medical expenses was manifestly inadequate or contrary to the evidence. On the other hand, the respondents assert the correctness of her Honour's assessment of damages. Therefore, in relation to damages, all of the heads of damages, with the exception of special damages and gratuitous services, need to be considered.

11. The plaintiff was 42 at the time of trial. She emigrated from the United Kingdom to Australia in 1974 with her first husband. She had two children, who at the time of trial were 17 and almost 14. She married for a second time in 1985. In the United Kingdom, prior to the birth of her children, she worked as a sales representative. She had not worked, except for very occasional work, in Australia before the birth of her children and after the birth of her children, until 1985, when she commenced employment with Stuart Alexander and Co Pty Ltd. The work she did with that company was sales merchandising and selling new lines in supermarkets and generally travelling from store to store as a salesperson. Her territory included Murray Bridge, Victor Harbor and Alice Springs and Darwin, twice per year. She did her travelling by car. She worked three days a week, six hours per day, a total of 18 hours. Her evidence was that she received a standing allowance, plus mileage on top of a payment of an hourly rate. Her evidence in relation to her contractual arrangements and her emoluments with her employer is rather scanty. No evidence was called from her employer in relation to her conditions of employment or her emoluments nor were any taxation returns tendered to establish her earnings between 1985 and 1988. The only taxation return that was tendered, showing income prior to the accident was the taxation return for the period 1 July 1988, to 30 June 1989. I would have thought that there was direct evidence available to be called from her employer to establish her conditions of employment, and to establish her prospects with that employer. No explanation has been given for the absence of that evidence. As well, no explanation was offered as to why her taxation returns, showing her actual earnings between 1985 and 1988, were not tendered.

12. There is a duty upon plaintiffs in claims for personal injuries, where a claim is made for damages for loss of earning capacity to produce to the Court evidence of the pre-injury utilization of that capacity. It is generally unsatisfactory for a plaintiff to give general oral evidence of the plaintiff's conditions of employment, unaided as it were, by the supporting documents such as taxation returns, awards and contractual arrangements which evidence those conditions of employment.

13. In Giorginis v Kastrati (1988) 49 SASR 339, von Doussa J said:
    "If a plaintiff does not adduce evidence of this kind which
    is in his power or possession many uncertainties are likely
    to remain. It does not necessarily follow, as a matter of
    law or fact, that proof of the plaintiff's claim for lost
    earning capacity will fail. The evidence may nevertheless
    establish, on the balance of probabilities, the likelihood
    of some substantial element of loss, and the court will take

    that into account in assessing general damages: Russell v
Hargreaves and Sons Pty Ltd (1956) 30 ALJ 533. However, the
    assessment is likely to be a modest one having regard to the
    uncertainties unnecessarily left open by the evidence. The
    plaintiff will usually not be heard to complain on appeal
    that the loss may have been greater. In some cases the
    failure to adduce the supporting evidence may well cause the
    court to feel unable to accept the oral evidence of the
    plaintiff, at least at face value. The plaintiff and his
    advisers carry a heavy responsibility to ensure that this
    type of material is properly marshalled together in advance
    of the trial, and where it is not admitted, to have it
    introduced into evidence.

There will be cases where the nature and extent of the loss
    alleged will make it difficult or impossible to adduce
    evidence that permits the court to proceed to calculate
    damages in a precise way. In these cases, the plaintiff is
    not to be deprived of damages because the evidence does not
    permit a mathematical calculation: Hamlyn v Hann and
Heagney (1967) SASR 387 per Mitchell J at 401. As Lord
    Devlin said in Yorkshire Electricity Board v Naylor (1968)
    AC 529 at 548: '... difficulty in calculation is not
    ordinarily taken as a ground either for reducing or for
    increasing the award'.

But cases where the damages are, by the nature of the loss,
    difficult to calculate, are to be distinguished from cases,
    like the present, where precise calculation is rendered
    impossible, and even broad assessment difficult, not by the
    nature of the loss, but by a paucity of evidence where it is
    clear that it lies within the power of the plaintiff to
    produce business and taxation records usually maintained by
    people in employment or business or other evidence which
    could clarify the extent of his income."

14. The absence of evidence, which the appellant could have called, is important because it is the appellant's case that her Honour failed to property appreciate the evidence that was before her in relation to loss of earning capacity.

15. In 1987 the appellant experienced back problems and developed discomfort in the mid-thoracic area. She saw her general practitioner who referred her for physiotherapy treatment, which was of little assistance, and she was then referred to an orthopaedic surgeon, Mr Hillier. She obtained a second opinion from Mr Mercer and she was then referred to a third surgeon, Mr Girgis. She was able to carry on with her normal duties, including playing sport, but she experienced pain in whatever she did.

16. On 20 February 1989, the pain had increased and her back had deteriorated to such an extent that she underwent a spinal fusion at the L4-5 and lumbo-sacral levels, which was performed by Mr Girgis, orthopaedic surgeon. She was in hospital for two weeks and she took four months leave without pay. After four months she was advised by Mr Girgis that she could return to work on light duties, meaning no bending or lifting.

17. The accident, the subject of these proceedings occurred on 31 July 1989, very shortly after she returned to work. It is not entirely clear, but it appears that she was then working the same hours that she had prior to her operation.

18. Tea Tree Plaza is adjacent to Smart Road. It has a large supermarket, a department store and smaller stores. It has a number of malls and it has, of course, a public carpark. The public carpark is closer to Smart Road than are the buildings, which contain the supermarket, department store and other stores which abut the malls. The appellant parked her motor vehicle in the carpark and walked towards the shopping centre. She said that she saw kerbing in front of her and tripped over it. Her evidence was that she noticed there was a kerb there and proceeded forward, but did not realise it was as high as it was. She said she tripped with her right foot, which threw her. She said she went backwards and then came forward and saved herself by falling on her hands and knees.

19. Her evidence in examination-in-chief was imprecise. In cross-examination she was asked this:
    "Q. I would like to go back to the day that the incident
    took place at Tea Tree Plaza shopping centre. You have told
    her Honour that you walked between the two cars, correct.

A. Yes.

Q. Saw the kerb.

A. Yes.

Q. You may well have got one foot up onto the raised
    section.

A. I don't recall. I may have, I don't recall.

Q. Then you say that you fell forward onto your hands.

A. I actually tripped which threw me forwards then
    backwards."

20. That is almost the sum total of the evidence in relation to the incident itself.

21. The appellant called a Mr Murray Young, a Consulting Traffic Engineer, a specialist in traffic management and engineering issues for over 25 years, who had prepared a report at the request of the respondents.

22. He had carried out a number of inspections of the subject site and had taken levels along the concrete section which had been identified as the section where the appellant fell. He identified the area of the fall as being a concrete kerb which divides the public carpark generally from a carpark specially designated for disabled persons. The concrete kerb is part of a 1.5 metre wide concrete separator between the parking areas available for the disabled and the public. The kerbing is a barrier type of kerb. In particular, barrier kerbs have no gutters since they are not designed as a facility to assist in the drainage of water.

23. The concrete section is approximately 50 metres in length and terminates at a landscaped area at both of its ends, and thus it is not used as a footpath by disabled persons. Indeed, the concrete section is not designed to service as a footpath for any persons. No pedestrian path has been provided over it and no pram ramp or steps have been provided to designate a pedestrian access across it.

24. Mr Young's evidence was that there is a difference between a kerb and a gutter which is generally provided at the side of a roadway for the purpose of collecting and disposing of water, and a barrier kerb which is used for the purpose of minimizing the risk of a vehicle mounting a kerb and continuing to the other side of that kerb. The barrier kerb is designed for, and has been used in this case, for the purpose of preventing cars travelling from the general carpark, through the area set aside for disabled persons and on to the access road. It therefore has a very practical function in that firstly it protects disabled persons who might be alighting from their vehicles, and secondly, it prevents vehicles travelling onto the access road, therefore ensuring the safer flow of traffic.

25. The Australian Standard for kerbs and channels suggests that there are three types of barrier kerbs, being of kerb heights of 100mm, 150mm or 200mm. The 100mm kerb is commonly used in locations in which a vehicle can overhang, for example, a carpark, because a kerb of any greater height than that is likely to be struck by the underside of a vehicle. The 150mm kerb, or as it is sometimes constructed, 140mm kerb, is commonly constructed in residential streets. It is not used where a vehicle overhangs the kerb since the underside of the vehicle would impact the kerb. A 200mm kerb is used to prevent cars from mounting the kerb and gaining access to an area off the road, for example, a reserve, parkland, bridge, et cetera. Those types of kerbs can be used in a carpark if wheel stops are used to prevent the front of the car striking the kerb. It can be seen that there are three types of kerbs and in respect of the second type, there are in fact two constructions of that type. There does not appear to be any particular uniformity about the height of a kerb. The height of a kerb varies according to the purpose for which the kerb is constructed.

26. That there is no uniformity, can be seen from the fact that the Department of Road Transport, itself, does not conform to the Australian Standards, and itself constructs kerbs as high as 230mm, where it wishes to prevent vehicles accessing roads.

27. The particular kerb, which is the subject of this action, runs east-west. The appellant approached the kerb from the southern side. The height of the kerb varies on its southern side from 170mm to 270mm. On the northern side, which is the side where the disabled parking is provided, it varies in height from 120mm to 150mm. Thus it is that the kerb slopes from the south to the north. The highest part of the kerb on the southern side is some 40mm higher than the highest barrier kerbs apparently constructed by the Department of Road Transport and 70mm higher than the standard recommended by the Australian Standard.

28. Mr Young said in his report, which was tendered:
    "I am of the opinion that the shape of the kerb is not
    'unusual' at the location where the Plaintiff is said to
    have fallen, in that it would appear to be a concrete kerb.
    However, I would agree that the height of the barrier kerb
    is approximately 70mm (2.5") greater than that specified in
    the relevant Australian Standard. The horizontal (top)
    section of the subject kerb (on the southern side of the
    concrete section) is approximately 100mm wide and conforms
    to the Australian Standard. The barrier face should have
    had a slight slope of 50mm in 200mm (1 in 4), but the shape
    of the face is actually 35mm in 270mm (1 in 7.7). Hence,
    the slope of the face of the kerb is marginally steeper than
    recommended in the Australian Standard."

29. His evidence in relation to the use of the standards was that the Australian Standard is generally observed, although as already mentioned, the Department of Road Transport does not adhere to the standards. That is a major constructing authority, and yet, as he says, they do not use a standard, but have their own standards. His evidence was that there was no reason to expect that there ought to be any signage, as he put it, to warn people of the existence of the barrier kerb. He said, inspection of the kerb shows that it should be easily seen by a pedestrian. He thought there was no need for the kerb be painted, nor there to be any advice in relation to the change in the height of the kerb because the height of the kerb did not appreciably change over the area upon which the plaintiff stepped. His evidence was that the carpark was reasonably safe for pedestrian traffic. It was of a similar design as many other carparks at metropolitan shopping centres. While a barrier kerb of 140mm to 150mm in height could have been used at the subject site, a higher kerb was appropriate if vehicle control was required, as it was at the subject location.

30. One is not able to discern from a reading of his evidence, any criticism of the construction of the kerb. The only implied criticism is that the kerb does not comply with the Australian standards, but of course, as he said on more than one occasion, not all authorities comply with the Australian standards, and in particular the Department of Road Traffic does not.

31. The appellant's evidence was that she approached a small part of the kerb. She did not have a view of the whole length of the kerb, as it runs in its east-west direction, so she was not aware, and therefore it was irrelevant to her that the kerb varied in its height along the whole of its length. Moreover, the fact that there was a slope from the southern side to the northern side is also, it seems to me, irrelevant. It was not that the appellant slipped or fell after she had negotiated herself onto the kerb and fell because she did not realise it sloped toward the northern end. The fact of the matter is that she fell because her trailing foot tripped over an obstacle which she had successfully negotiated with her left foot.

32. Her Honour found that that point at which the plaintiff fell, the height of the kerb was 250mm. That, as her Honour found, is 50mm higher than the Australian standard for a kerb used to prevent cars from mounting a kerb and gaining access to an area off the road. It is, however, only 20mm higher than a kerb height which is presently used by the Department of Road Transport for kerbing adjacent to parklands where no fence is erected and where kerbs are erected to stop vehicles from entering. Her Honour found that the kerb was higher than normal. She accepted the appellant's evidence that the appellant did not realise that the kerb was as high as it was. She further found that the appellant placed her left foot on the kerb first, and that she tripped with her right foot. As has been demonstrated, the plaintiff did not give that evidence directly, but it may be inferred from what she has said that in fact she was able to place her leading foot onto the kerb, and that her trailing foot caused her to trip. The appellant must have correctly identified the height of the kerb to be able to place her leading foot on it. Her Honour reached the further conclusion that the barrier was of an unusual design and that there was no logical explanation for the variation in its height along its length, or that from side to side. Having regard to the circumstances in which the accident occurred, those findings may not be so relevant.

33. There can be no doubt that it was foreseeable, on the part of the respondent, that unless this kerb was properly constructed, a pedestrian, could, whilst negotiating the kerb for the purpose of entering the malls or the shopping centres, suffer injury. The risk was foreseeable.

34. As Mason J said in Wyong Shire Council v Shirt (1980) 146 CLR 40, at page 47:
    "A risk of injury which is quite unlikely to occur, such as
that which happened in Bolton v Stone (1951) AC 850, may
    nevertheless be plainly foreseeable. Consequently, when we
    speak of a risk of injury as being 'foreseeable' we are not
    making any statement as to the probability or improbability
    of its occurrence, save that we are implicitly asserting
    that the risk is not one that is far fetched or fanciful.
    Although it is true to say that in many cases the greater
    degree of probability of the occurrence of the risk the more
    readily it will be perceived to be a risk, it certainly does
    not follow tha a risk which is unlikely to occur is not
    foreseeable."

35. I am satisfied that on the evidence that it was foreseeable that there would be pedestrian traffic travelling along and across the barrier kerb. In those circumstances a risk of injury was foreseeable.

36. In reacting to that risk, the respondents had to balance the purpose for which the barrier was designed, namely the protection of disabled persons in parking and alighting from motor vehicles, and for the restriction of traffic movement along the access road, against the risk that a pedestrian may misjudge the height of the barrier and suffer injury.

37. It seems to me that the purpose of the barrier could still have been fulfilled by the erection of a barrier kerb that was lower and therefore less likely to be a risk to pedestrian traffic crossing the barrier. There was, in my opinion, no need to erect a barrier of that height, which had the consequence of unnecessary risk to those who might be crossing the barrier. It is argued by the respondents that a pedestrian could avoid injury by taking care for herself. That matter was discussed in Webb v State of South Australia (1982) 56 ALJR 912, and at 913 Mason, Brennan and Deane JJ said:
    "However, the reasonable man does not assume that others
    will always take due care; he must recognize that there will
    be occasions when others are distracted by emergency or some
    other cause from giving sufficient attention to their own
    safety."

38. In that case the High Court considered a claim for personal injuries where a man injured his foot when he jammed it in a gap between a permanent kerb and a temporary false kerb. Their Honours said at page 912:
    "The question then is: What is the response which the
    reasonable man, foreseeing the risk, would make to it? Is
    the risk so small that a reasonable man would think it right
    to neglect it? In Wyong Mason J said (at page 285): 'The
    perception of the reasonable man's response calls for a
    consideration of the magnitude of the risk and the degree of
    the probability of its occurrence, along with the expense,
    difficulty and inconvenience of taking alleviating action
    and any other conflicting responsibilities which the
    defendant may have.'

Here the risk of significant personal injury was obvious;
    the occurrence of such an injury was a distinct possibility.
    To determine liability in the present case, one must
    postulate the reasonable man's response to the risk of
    occurrence of personal injury arising from the construction
    and maintenance of the false kerb, a risk which might lead
    to injury in a variety of ways. It is not necessary to
    postulate a response to the risk that personal injury would
    arise in the precise way in which the appellant actually
    sustained his injury - by jamming his foot in the
    intervening space.

The risk could have been eliminated without undue difficulty
    or expense. The primary Judge acknowledged as much in his
    judgment. He referred to the evidence of Mr Dempsey, a
    civil engineer, who said that the respondent could have
    eliminated all possible risk by filling the space between
    the false kerb and the permanent kerb. The witness said
    that a consequential surface drainage problem would be
    created by this action. He suggested two alternative means
    of coping with that problem, both of which he described as
    'relatively simple'. It is not necessary to recount those
    two alternatives here. The primary judge was prepared to
    assume that either of these alternatives would have been
    effective. It is sufficient for us to say that each
    alternative was a satisfactory solution to what was a
    comparatively simple engineering problem."

39. In this case the risk could have been eliminated without any real expense. The kerb could have been constructed to comply with the Australian Standards. It could, without undue expense after construction, have been modified to comply with these standards. That would have eliminated the risk of injury to pedestrians crossing the kerb, particularly those who were not taking proper care for their own safety. Even if the kerb had been reduced to the height that the Department of Road Transport observes, that would have eliminated some of the risk of tripping. I am of the opinion that the learned Trial Judge was right to conclude that the respondents had been guilty of negligence.

40. I also believe that she was right to find that the appellant was guilty of contributory negligence. I think that the appellant's description of the fall demonstrates a lack of care on the part of the appellant, which required a finding of contributory negligence.

41. The matter of an apportionment is an exercise of discretion and judgment. The assessment of the apportionment required the learned Trial Judge to compare the degree of departure of each of the parties from the standard of care of the reasonable man Pennington v Norris (1956) 95 CLR 10. It is only in the rarest circumstances that it would be appropriate for an appeal court to interfere with the exercise of the discretion. Watt v Bretag (1982) 56 ALJR 760, 41 ALR 507. I believe that the respondents ought to have been visited with the major share of responsibility. In these circumstances it would not be appropriate for this Court to interfere with a finding that the appellant should bear 30 per cent of the responsibility.

42. For all of these reasons I would dismiss the appeal insofar that it complains of the learned Trial Judge's findings on contributory negligence and on the apportionment and I would dismiss the cross-appeal.

43. I turn to the appellant's appeal against the award of damages. The appellant's evidence was that she suffered quite severe pain at the time of the incident, and because the pain did not lessen, she made arrangements to see Mr Girgis. He prescribed physiotherapy and hydrotherapy, which was of no benefit to her, and in October 1989, about two and a half months after the incident, she underwent an epidural procedure, which again did nothing to alleviate the pain. About a fortnight later, she was re-admitted to hospital and Mr Girgis, re-explored the fusion.

44. He changed the internal fixation of the fusion by the insertion of a Hartshill frame. She continued to have substantial problems after that procedure, and in April 1990, she consulted Mr Robert Fraser, Orthopaedic Surgeon, who carried out a further operative procedure in June 1990, when Mr Fraser apparently, although no evidence was led from him, nor any report tendered, removed the Hartshill frame and effected a fusion by a bone graft. In at about October 1990, she had her coccyx excised by Mr Fraser. Her Honour found that that later operation was unconnected with this accident.

45. Her condition improved somewhat after the removal of the frame and she attempted to resume employment, but could not do so without suffering pain. She continued in that situation until sometime in 1991, when she was referred to Mr Carney, neurosurgeon, who formed the opinion that the pain from which she was then suffering may well have been due to nerve root problems, probably related to the Hartshill frame. He thought it probable that the wires and implements involved with the frame had perhaps passed into the spinal canal, producing some nerve root contusion or other damage which had resulted in chronic pain. He formed the opinion that surgery was unlikely to be of any assistance to her. At that very early stage he advised her that surgery was unlikely to be of any benefit and that she ought to give consideration to the insertion of a morphine pump for the relief of pain. He referred her to Dr Bruce Rounsefell, of the Pain Unit of the Royal Adelaide Hospital. She underwent trials at the Pain Unit at the Royal Adelaide Hospital and she was assessed as suitable for the morphine pump procedure. That was arranged to be carried out in March 1992, but in due course the appellant cancelled that arrangement because she then believed that she had undergone sufficient treatment. She wanted to concentrate on improving her physical mobility.

46. Since that time she has continued to suffer pain. Her evidence is that she has steadily deteriorated and that she is now capable of doing some household chores, but not much more. She has reached the conclusion that she believes that the pain has now become so bad that she will undergo the insertion of the pump.

47. A good deal of the trial was directed to determining the reasons for the aggravation of her symptoms and to the extent that they have been aggravated. Her Honour accepted Mr Carney in preference to the other medical witnesses and I think on that, of course, she was so entitled. It seems to me, however, it is a matter of no consequence as to exactly why the appellant's symptoms have been aggravated. There was no suggestion on the part of the respondents that any act of Mr Girgis amounted to a novus actus interveniens and in those circumstances, whilst it might be nice to know why it is that she presently suffers from the disabilities that she does, in the long run, for the purpose of the assessment of damages, it really does not matter.

48. Her Honour reached the conclusion that the plaintiff has suffered considerable pain and discomfort and has become increasingly dispirited as a result of her continuing pain and the various medical procedures which she has undergone.

49. Provided the appellant's evidence was accepted, and it was, the evidence all pointed to a woman who had a bad back prior to 31 July 1989, which had deteriorated to the extent that she was obliged to undergo surgery in the form of a laminectomy. From that surgical procedure she was making a good recovery and had, to a greater extent, been able to resume most of the level of activities which she involved herself in, prior to the deterioration to her back.

50. Thereafter, she suffered the incident that she did on 31 July 1989, which caused heightened pain, suffering and disability such that she was obliged to undergo three surgical procedures, the first being the procedure of the placing of the Hartshill frame, the second being the removal by Mr Fraser of the Hartshill frame, and the third being the excision of the coccyx. As I have mentioned, her Honour found that the third procedure is unrelated to the accident of 31 July 1989, and the appellant did not address otherwise. The evidence further supports the findings that her Honour made that there has been a significant degree of pain and suffering since that time, which has substantially interfered with her ability to work and interfered greatly with the quality of her life.

51. However, Dr Carney's evidence was that if the appellant would agree to a morphine pump being inserted, which the appellant presently intends should happen, it is his expectation that there would be a considerable improvement in her symptoms of pain.

52. The appellant complains that the award of damages for general damages in the sum of $50,000, made up of $30,000 for past losses and $20,000 for future pain and suffering, is manifestly inadequate. Whilst the figure is lower than I would have awarded, it is not a figure which I would describe as manifestly inadequate. It is a figure which is, in my respectful opinion, at the lower end of a range which could have, on a proper judgment, been arrived at. I would not interfere with the award of general damages for pain and suffering.

53. The learned Trial Judge found that the appellant was unlikely to ever work again. That finding was challenged by the respondents who argued that such a finding was against the weight of the evidence, and indeed, it was submitted that it was contrary to other findings of the Trial Judge.

54. The learned Trial Judge accepted the evidence of Mr Carney, which carried with it implicitly the acceptance of his evidence that when the appellant undergoes the procedure for the insertion of the morphine pump, there will be a considerable improvement in her symptoms of pain. His evidence was that he has some patients, who for many years have been able to lead relatively normal lives after the insertion of the pump.

55. His view as to her future employability was not as pessimistic as the view expressed by the learned Trial Judge. He said:
    "If she can be relieved of her pain to a very substantial
    degree, then she probably would be able to work, as long as
    it didn't involve heavy lifting, repetitive bending, cramped
    environments. That is something that could really only be
    judged once she had been relieved of her pain. I think
    resumption of work would have to be on a trial basis to take
    it step by step."

56. He was of the view that unless there was a reduction of pain she would not be able to work in the future.

57. It seems to me, therefore, that if the appropriate assumption is that the plaintiff will undergo the operative procedure for the insertion of the morphine pump, and if further the insertion of that pump has the potential to considerably reduce her level of pain, then it is too pessimistic a view, in my respectful opinion, to reach the conclusion that there has been a total destruction of earning capacity, by reason of this accident.

58. I would approach the assessment of damages in relation to earning capacity upon this basis. Firstly, that the appellant had a significant back problem prior to this accident, which had culminated in her requiring a fusion which had still not become solid at the time that this incident occurred. Secondly, by reason of the pre-existing back injury, the appellant had a vulnerability to further injury such as the type of injury she suffered in this accident. Thirdly, that the appellant's earning capacity had been markedly diminished by reason of the pre-existing back injury and consequential surgical procedures. Fourthly, that by reason of her fall at the respondents' premises, she has suffered a total loss of earning capacity between the date of that incident and the date of trial, and that destruction of earning capacity has been caused by the associated pain which has disabled her from carrying out any employment. Fifthly, that she will continue to suffer a total destruction of earning capacity until such time as she undergoes a procedure for the insertion of a morphine pump, which procedure, on the balance of probabilities, will relieve her, to a considerable extent, of her pain and thus restore to a certain extent, a degree of earning capacity. Lastly, that it has not been unreasonable for the appellant, so far, not to have undergone that operative procedure having regard to the number of operative procedures to which she has been subjected both before the incident and following upon the incident.

59. In my opinion it would be appropriate to assess the general damages for past loss of earning capacity and future loss of earning capacity upon the findings mentioned above.

60. I turn, therefore, to the assessment of the plaintiff's loss of earning capacity to the date of trial, which the learned Trial Judge assessed at $15,000.

61. The period between the date of the accident and trial was about four and a half years. Her Honour, in assessing earning capacity, said:
    "... I believe there must be a substantial discount on the
    amount that the plaintiff should receive, not only by way of
    past economic loss, but also for her loss of future earning
    capacity."

62. Her Honour was there referring, of course, to the pre-existing back injury.

63. The appellant argued that the evidence showed that the plaintiff worked eighteen hours per week and earned $10.66 an hour, plus a standing charge of at least $190 per week, plus mileage of 19 cents to 21 cents per kilometre. The plaintiff argued that on that basis the loss of earning capacity to the date of trial, calculated at $79,631. The same argument was put to her Honour and rejected. Her Honour said of that calculation:
    "Whilst this is perhaps a useful starting point for
    considering the issue of economic loss, I believe that it
    has very limited application in the circumstances of this
    case."

64. With respect, I agree with her Honour. I think that figure has a very limited application in the circumstance of this case, because firstly I do not believe that the figure is an accurate assessment of the loss to the date of trial, but even if it was, it would not in any ways reflect an assessment of loss of earning capacity to trial. Whilst it is true that damages for loss of earning capacity are assessed having regard to the loss of earnings occasioned by that lost earning capacity, it is not appropriate, in my opinion, to attempt to assess the loss of earning capacity upon the precise basis proposed. See Arthur Robinson (Grafton) Pty Ltd v Carter (1970) 122 CLR 649.

65. The calculation put forward ignores the evidence contained in the appellant's taxation return filed for the period prior to her injury. It is inconsistent with the evidence led by the appellant in relation to the standing charge. It is not supported in any ways by the evidence of her employer. As I have already mentioned, for all of those reasons I think the calculation is of little or no use. Her Honour reached the conclusion that, excluding the car allowance, the appellant's gross income was no more than about $200 per week. In the 1988/1989 taxation return the appellant returned an income of $5,362, and taxation instalments of $1,032. She returned an allowance for a motor vehicle of $3,910, which made in total a gross income of $9,272. She claimed, as a deduction the use of her motor vehicle of $3,755, which then showed a taxable income of in the order of $5,533. It must be remembered, however, that she was off work for four months following upon the surgery relating to the pre-existing back injury. That figure would suggest a gross income of about $8,200 a year, or a figure of $160 per week gross.

66. Her loss of earning capacity to the date of trial would probably be measured by reference to gross figures because she was entitled to payments under the Workers Rehabilitation and Compensation Act 1986, which would have to be repaid. Those payments would, of course, have been gross. Fox v Wood
(1981) 148 CLR 438.

67. In a rough and ready sort of way, then, the appellant's gross income, which she lost between the date of the accident and the date of trial would be something in the order of $36,000.

68. I agree with the learned Trial Judge that a substantial discount would have to be made for the risk of other injury, although that risk has to be confined to a risk of another injury occurring in non-compensable circumstances. I think also discount has to be made for the possibility that she would not have exercised her earning capacity to its fullest for other reasons associated with her family. By the same token, the gross assessment that I have arrived at has no regard to the possibility that her circumstances would improve over that period of time. The matter of the balancing of contingencies is a matter of judgment. However, I think that the learned Trial Judge has made too great an allowance for the adverse contingencies, without having sufficient regard to the favourable contingencies. In my opinion an appropriate amount for the loss of earning capacity to the date of trial would be $25,000.

69. In respect of loss of future earning capacity, the assessment must, of course, proceed on the basis of net losses rather than gross losses. I think, therefore, it would be appropriate to proceed perhaps on the basis that the appellant's pre-accident earning capacity net was in the order of $140 per week. The appellant argued that an appropriate figure on the same type of reasoning as was applied by the loss of earning capacity to trial, would arrive at a figure of $269,748, which figure the appellant argued was conservative. Again, that same argument was put to her Honour at trial and was rejected, and rightly so.

70. In Arthur Robinson (Grafton) Pty Ltd v Carter (supra) Barwick CJ said:
    "However much the valuation of the loss of earning capacity
    involves the consideration of what moneys could have been
    produced by the exercise of the respondent's former earning
    capacity, it is the loss of that capacity, and not the
    failure to receive wages for the future, which is to be the
    subject of fair compensation." He went on to say again at page 658:
    "Of course, the rate of wages being earned and the rate of
    wage likely to be earned in the future afford a basis for
    assessing compensation for the loss of earning capacity. So
    also, expectation of working life is an element in that
    assessment. Because a present payment for the loss of
    earning capacity in some sense anticipates the product of
    that capacity, the present value of a dollar paid each week
    for the length of the estimated working life is properly
    evidenced to afford a guide but only a guide to judgment by
    those without access to tables or the ability otherwise to
    reckon that value. But to take the present value of a
    regular weekly wage paid continuously for the estimated
    working life and then attempt to discount that figure to
    allow for the many factors of which it takes no account is
    not to my mind a satisfactory course to take, particularly
    as an initial step in an attempt to calculate what is a fair
    compensation for the loss of an earning capacity which has
    or could have produced that rate of weekly wage."

71. I believe the measure of the loss of future earning capacity ought to proceed upon the basis that if the appellant had been an able bodied person, she would have been capable of earning in the order of $140 per week. The contingencies, both favourable and adverse, must be then brought to account. There was tendered at the trial an extract from Luntz Assessment of Damages for Personal Injury and Death, being the Australian Life Tables for 1975/1977 for females showing the value of an annuity of $1, discounted at the rate of 3 per cent. In relation to a female of the age of this appellant, the multiple to age 65 is $836, and to age 60 is $708. That would suggest a range, before application of contingencies, for a total destruction of earning capacity between $100,000 and $120,000.

72. It seems to me, in regard to her future loss of earning capacity, the unfavourable contingencies outweigh the favourable contingencies. Regard also has to be had, as I have previously said, for some earning capacity which may be exercised in the future. Even given all that I think, however, her Honour again allowed too much for these unfavourable contingencies in her assessment of loss of future earning capacity. For my part, I think the figure her Honour assessed at was too low and I would increase this head of damages to $75,000.

73. Lastly, the appellant complained of the award for future medical expenses. In that regard her Honour allowed the sum of $12,000.

74. She said:
    "There is also the issue of future medical expenses. I
    accept the evidence of the plaintiff that she now intends to
    have the pump inserted. Mr Carney said the morphine pump
    would cost about $7,000 and the cost of the insertion,
    including the hospital stay, could be another $2,000. He
    was not aware of any cost to refill the pump. I allow
    future medical expenses in the sum of $12,000."

75. The appellant says that the allowance of a sum of $12,000 was manifestly inadequate and arose out of a misunderstanding of Mr Carney's evidence. The appellant argued that in fact the evidence showed that it would be necessary that the pump and the batteries be replaced every four to five years at a cost of $7,000 for the pump, plus $2,000 for the hospital stay, thereby necessitating a cost of $9,000 every four to five years, which the appellant argued meant a cost of $2,000 per annum. The appellant argued that having regard to the actuarial calculations, this would produce a future cost in the order of $40,500.

76. I do not think the evidence supports the contention put by the appellant. Mr Carney's evidence was:
    "Q. In relation to the morphine pump, if the morphine pump
    is inserted, is that a permanent thing or does that require
    further surgery from time to time.

A. If we use a Medtronic pump, she will need, at the very
    least, replacement of batteries at four to five years.

Q. What is needed for replacement of batteries.

A. you have to remove the pump device from the abdomen and
    replace it with a new one.

Q. Does that require a stay in hospital.

A. Yes. that would require two or three days in hospital.
    The pumps, like any medical plumbing device, can fail.
    We've had problems with catheters and had to do operations
    to unkink catheters. The pump needs refilling generally
    every five weeks, so that requires a regular attendance on a
    pain clinic system. Sometimes the pumps fail at an earlier
    date than that.

Q. The fact that they would require refilling every five
    weeks, I take it there is some device which enables the
    insertion of a drug through the skin, as it were.

A. Yes.

Q. So the person permanently has, what, some tube or
    something.

A. No. A needle, a special design of needle, is put in the
    skin through a pump.

Q. Every five weeks or so.

A. Yes.

Q. Are you able to tell us what the cost of those sort of
    procedures is likely to be at the present time.

A. I think the actual pump costs around $7,000. the cost of
    insertion, including hospital stay, would probably be

    another $2,000. I don't think there are any charges for
    refilling the pump. That is done by the Royal Adelaide
    Hospital Pain Clinic. there may be a charge, I'm not sure.
    Any further surgery to replace the pump would have similar
    cost levels."

77. There was no other evidence in relation to the cost of the insertion of the pump and the cost of the renewing of the pump. The evidence in quite unclear, and it is not easy to understand whether Mr Carney was directing his attention to the cost of the pump or the cost of the batteries. In my opinion his evidence cannot be so clearly understood as the appellant would wish this Court to understand it. In the circumstances where the burden was upon the appellant to establish the cost of future medical treatment and such a paucity of evidence was directed towards that cost, it is not appropriate in my opinion for this Court to interfere with the award that the learned Trial Judge arrived at. In my opinion this ground of appeal fails.

78. For the reasons I have given, in my opinion, the appellant's damages ought to be increased by $35,000 and I would allow the appeal for that purpose accordingly. That would mean that, after allowing for the appropriate reduction for contributory negligence, the judgment entered by her Honour, which was exclusive of interest, ought to be increased by $24,500 to $140,353.37. I would dismiss the cross-appeal.