Australia and New Zealand Banking Group Ltd v Haq

[2016] NSWCA 93

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Australia and New Zealand Banking Group Ltd v Haq [2016] NSWCA 93

Hearing dates:

8 March 2016

Decision date:

03 May 2016

Before:

Basten JA at [1], Simpson JA at [59], Sackville AJA at [221]

Decision:

(1)  Allow the appeal as to quantum in part and set aside the orders made in the District Court on 15 April 2015.

 

(2)  In place thereof, give judgment for the plaintiff in an amount of $582,000, to date from 15 April 2015.

 

(3)  Otherwise dismiss the appeal.

 (4)  Order that the appellant pay 75% of respondent’s costs in this Court.

Catchwords:

TORTS – negligence – personal injury – respondent injured when tripped on wires under desk – whether primary judge erred by failing to determine liability by reference to s 5B Civil Liability Act 2002 (NSW) – no reference to Civil Liability Act at trial by parties – no contested issues under Civil Liability Act – no error by primary judge in failing to address issues not presented for determination

 

TORTS – negligence – contributory negligence – whether primary judge erred in finding no contributory negligence – no basis established for overturning finding of primary judge

  DAMAGES – assessment of damages – whether non-economic loss assessment excessive – whether past economic loss assessment excessive – whether future economic loss assessment excessive – whether award for past domestic assistance excessive – whether award for future domestic assistance excessive – whether award for future medical expenses excessive - damages reassessed for past economic loss, past domestic assistance, future domestic assistance and future medical expenses – appeal allowed as to quantum of damages

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5B, 5F, 5G, 5H, 5R, 13, 15, 15B, 16
District Court Act 1973 (NSW), s 127
Motor Accident Compensation Act 1999 (NSW), s 126
Supreme Court Act 1970 (NSW), s 75A
Workers Compensation Act 1987 (NSW), ss 40, 42, 151Z

Cases Cited:

Amoud v Al Batat [2009] NSWCA 333; 54 MVR 167
Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479
Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139
Coulton v Holcombe [1986] HCA 33; 162 CLR 1
Fox v Wood [1981] HCA 41; 148 CLR 438
Gordon v Truong [2014] NSWCA 97
Laresu Pty Ltd v Clark [2010] NSWCA 180
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Marsland v Andjelic (1993) 31 NSWLR 162
Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68
Miller v Galderisi [2009] NSWCA 353
Nominal Defendant v Lane [2004] NSWCA 405
Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy; FBIS International Protective Services (Aust) Pty Ltd v Hennessy [2015] NSWCA 253
Rallis v Pang [2003] NSWCA 202
Sampco Pty Ltd v Wurth [2015] NSWCA 117
Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418
Transpacific Industrial Solutions Pty Ltd v Phelps [2013] NSWCA 31; 230 IR 438
Water Board v Moustakas [1988] HCA 12; 180 CLR 491
Woolworths Ltd v Ryder [2014] NSWCA 223, 87 NSWLR 593
Zorom Enterprises v Zabow (2007) 71 NSWLR 354; [2007] NSWCA 106

Category:

Principal judgment

Parties:

Australia and New Zealand Banking Group Ltd (Appellant)
Nur Haq (Respondent)

Representation:

Counsel:
N Polin SC (Appellant)
M Daley (Respondent)

  Solicitors:
Moray & Agnew (Appellant)
MN Compensation Lawyers (Respondent)

File Number(s):

2015/123867

 Decision under appeal 

Court or tribunal:

District Court

Date of Decision:

15 April 2015

Before:

Maiden DCJ

File Number(s):

2014/68194

Judgment

1. BASTEN JA: On 10 March 2011, Ms Nur Haq (“the claimant”) was working as a trainee at the premises of the Five Dock branch of the ANZ Bank. She was undertaking exercises on a computer at a workstation in the public area of the premises when, on seeking to stand up from the desk, she caught her foot on “a bunch of wires”, tripped and fell, injuring her left knee.

2. She made a claim against the Bank for damages resulting from the Bank’s alleged negligence. The proceedings were commenced in March 2014, a trial being held on 13 and 14 April 2015. The trial judge, Maiden DCJ, gave judgment on the following day, 15 April 2015. He upheld the claim and assessed damages in the sum of $713,532.

3. So far as the question of liability was concerned, the case turned entirely upon the evidence of the plaintiff. The Bank’s defence relied upon two propositions, namely that if the plaintiff’s foot caught on a cable or wires, causing her to trip, the wires must have been in the open and hence an obvious risk of which she was presumed to have been aware, in accordance with s 5G of the Civil Liability Act 2002 (NSW). Accordingly, pursuant to s 5H, the Bank said that it had no duty to warn her of that risk. Secondly, her failure to see the electric cables constituted contributory negligence on her part.

4. The Bank’s notice of appeal sought to challenge each necessary legal element in the cause of action in negligence and each component of the award of damages. As explained more fully by Simpson JA, that approach bore no relationship to the somewhat casual approach adopted by both parties at the trial. By way of example, although the Bank was not the employer of the claimant, who was employed by a recruiting agency, the Bank did not seek in its own defence to rely upon the reduction commonly available under s 151Z of the Workers Compensation Act 1987 (NSW), where the employer, even if not sued, is shown to be partly responsible for the claimant’s injury. (A belated attempt to rely upon that provision was rejected by the trial judge. [1] ) Furthermore, apart from tendering an undated photograph of the workstation taken long after the event and revealing nothing of significance, the Bank neither called evidence, nor tendered any documents relevant to liability.

   1.    Tcpt, 13/04/15, pp 3(20) and 5(28).

Liability

5. In order to establish liability on the part of the Bank, the claimant had to establish the mechanism by which the accident occurred. The area of dispute was quite limited. Thus, there was no dispute that the claimant tripped as she sought to stand up, nor that the cause of her trip was at least one electric cable, which caught her left foot.

6. She described in her evidence having been sitting at the desk for some two hours when she decided to get up in order to take her lunch break. She was sitting on a chair with wheels. In order to get up she moved her chair backwards and swivelled the chair to the left. She said then “I stood up and took a step with my right foot, and then I took another step with my left one and then I fell down”. [2] She felt something around her left foot, looked and saw a “bunch of wires around my foot.” [3]

   2.    Tcpt, p 14(7).

   3.    Tcpt, p 14(33).

7. Understandably, the claimant was cross-examined as to the mechanism of the accident. Having pushed her chair back and swivelled to the left, in order to stand up, and having stood up, her feet must have been clear of the area under the desk. She then took a step with her right foot and agreed that nothing happened at that stage. Rather, it was when she took a second step with her left foot that she felt her foot “get caught”. The cross-examiner continued: [4]

“Q. Your left foot did not get caught on wires underneath the desk, did they [sic]?

A. It got caught underneath the desk.

Q. It got caught at the time you were taking your second step away from the desk?

A. Somehow it got tangled in my left foot.”

4.    Tcpt, p 35(25).

8. The plaintiff’s case was quite straightforward: if, as was accepted, there was a wire which caught around her foot, it should not have been in a position where that could happen and its presence constituted a breach of the Bank’s duty of care to her. The Bank’s case was equally straightforward: if the wire caught around her foot when her feet were under the desk, she should have been aware of it before she stood up and took not only one, but two steps. If, on the other hand, the wire was on the floor, not under the desk but in the open, again she should have been aware of it.

9. On the claimant’s evidence, the Bank could not succeed in avoiding liability unless it had some independent evidence as to the state of the wiring at the time of the accident. It had none. On the other hand, the claimant said she reported the accident to the assistant manager whose name she gave: it was recorded in the transcript as “Halid” [5] and in the judgment as “Kharlif”. Although the trial judge said that the claimant was “placed back on the chair”, after taking the wire off her foot, with the assistance of the assistant manager, that was not her evidence. Rather, her evidence was in the following terms: [6]

“Q. Did you actually get up yourself?

A. Yes. I got up on the chair. I sat on the chair straightaway.

Q. Who did you report the accident to if you reported it?

A. The assistant manager by the name of Halid.”

5.    Tcpt, p 16(50).

6.    Tcpt, p 16(45)-(50).

10. There can be no basis in this material to cavil with the finding of liability. The Bank’s challenge in this respect should be rejected.

Contributory negligence

11. The finding that there was no contributory negligence is more problematic. The reasoning of the trial judge in this regard was as follows: [7]

“The one photograph tendered is, at best, poor quality, and the uncertainty of when the photograph was taken makes the Court’s task difficult in trying to establish what, in fact, happened or being able to assess the risk hazard. In absence of the defendant producing any evidence to identify the risk hazard as to whether or not it was obvious or to what extent it was obvious, and noting that there is no photograph from behind what would have been the seated position of the plaintiff, the Court is unable to make such a finding, and, therefore, the claim under sections of contributory negligence (that is, ss 5 and 6) is not made out.”

7.    Judgment, p 6.

12. The reference to “ss 5 and 6” is obscure. If it were intended to be a reference to the pleaded defence, contributory negligence was pleaded in par 4. If it were intended to be a reference to the Civil Liability Act, contributory negligence is dealt with in s 5R and s 5S. Nothing of significance would seem to turn on that matter; rather, it is implicit in the passage set out above that the judge had in mind the burden of proof on the Bank to establish contributory negligence. The Bank undoubtedly bore that burden; however, it was open to the Bank to rely upon the claimant’s own evidence as to how the accident occurred, in order to establish carelessness on her part.

13. In dealing with the claimant’s evidence, the trial judge accepted “that she was not aware of the risk and that she had not seen the loose wiring.” [8] He further found:

“On the plaintiff’s evidence, it clearly was a trip hazard, and, on her evidence, she was not aware of the risk and it was not from her previous experience a matter that she would have gone and looked for either by looking under the desk or getting down on perhaps hands and knees in order to investigate what was the cabling/wiring to the work station she had been directed [to].”

8.    Judgment, p 5.

14. So much can be accepted; however, that finding did not grapple with the Bank’s case, which turned not on any previous experience, but on the particular mechanism by which she fell and the point at which she should have become aware of the existence of the loose cabling.

15. Not only did the claimant swing her legs around to the left, but she took a step with her right foot before she tripped. Accepting, on the best case for her, that the cabling was not visible, and she had not come into contact with it in the two hours during which she had been sitting at the desk, it must have been dragged out on her left foot as she swivelled and she must have stepped across it with her right foot as she took her first step after standing up. Although precisely how that happened is unclear, it should be accepted that this was the most probable eventuality. If she did not become aware of the presence of the “bunch of wires” (to use her expression) before she tripped, she should have, as a reasonable person in that position. [9]

    9. Civil Liability Act, s 5R(2).

16. The Bank submitted that a finding of contributory negligence would involve a proportion of at least 50%. While there is some force in that submission, the uncertainty as to the precise mechanism of the accident warrants a lower figure. Furthermore, as the party responsible for creating an unsafe workplace, the bulk of the responsibility lay with the Bank. I would assess contributory negligence at 25%.

Damages

(a)   non-economic loss

17. There was a challenge to the finding of non-economic loss, which was assessed at 29% of a most extreme case, being $103,000. In submissions at trial the Bank had suggested a figure of 25% and the plaintiff a figure of 33% of a most extreme case; the trial judge adopted the mid-point. It is difficult to justify a complaint about that conclusion, although a reasoned determination would have required consideration of which injuries were properly attributable to the accident, and the extent of those injuries.

(b)   past economic loss

18. The trial judge adopted the calculations of senior counsel in relation to past economic loss. Neither party sought tax returns for the claimant’s employment immediately prior to the accident. However, two figures appear to have been accepted, namely that the period between the injury and the trial was 213 weeks and that, during that period, she had employment from which she earned $11,713.

19. It is unfortunate that the Court does not have available to it the schedule placed before the trial judge on behalf of the claimant, which was referred to in submissions. However, the relevant figures needed to be derived from the evidence, which the Court does have.

20. Senior counsel for the plaintiff used a net base rate of $858 per week, based on her evidence that she proposed to increase her working hours to 39 hours per week. However, that did not reflect the workload she was in fact undertaking at the time of the accident. At no earlier point had she worked full-time. While she had young children, she had worked part-time for some 22 years with the Commonwealth Bank, at 25 hours per week. [10] In 2010 she decided to start part-time study for a nursing degree. At that stage, her youngest child was approximately 19 years of age. In October 2010 she ceased her work with the Commonwealth Bank. In November of the same year she started with KinCare Community Service, which provided nursing services to persons suffering minor dementia but who remained at home. She continued to work about 25 hours a week. [11] When she commenced work at the ANZ Bank, four days before the accident, she was working 19 hours a week and reduced her hours at KinCare to 10 hours a week, making a total of 29 hours a week. She said that she proposed to increase her hours at KinCare back to 20 hours per week, although she did not say when she would do that or how long her nursing study would take. As she had never worked 39 hours per week prior to the accident, the calculation undertaken by counsel for the claimant, in fact based on 40 hours, should not have been accepted.

    10.    Tcpt, p 8(40).

    11.    Tcpt, p 10(15).

21. A calculation based on the worker’s compensation payments, being $748 per week gross, should be treated as covering 29 hours work, thus giving an average gross hourly rate of $25. To treat the worker’s compensation as relating only to the job in which she was injured, when her incapacity extended across both jobs would be to disregard the calculation of weekly payments of compensation by reference to “[t]he reduction in the worker’s weekly earnings”[12] and the reference to “the average weekly amount that the worker is earning, or would be able to earn in some suitable employment, from time to time after the injury”. [13] It would also be to disregard the requirements of s 42(7), which provided that in the case of a worker employed under two or more contracts of service, with different employers, the current weekly wage rate is a reference to the sum of the current weekly wage rates. [14]

    12. Workers Compensation Act, s 40(2) as in force at the date of injury.

    13. Section 40(2)(b).

    14. Section 42 was substituted in 2012.

22. Past economic loss is calculated by reference to net earnings, not gross. A gross payment of $748 per week may equate to approximately $600 per week net. (That amount is close to the figure relied upon by the claimant at trial, namely $800 per week net, which, allowing for the diminution in hours from 39 to 29, becomes $595; it is also close to the figure relied on in her pleadings, namely $585.) Allowing 213 weeks, the figure for lost income will be $127,800, from which actual income earned ($11,713) should be deducted, giving a balance $116,000 in round terms. With superannuation, the final figure is, again in round terms, $129,000.

(c)   future economic loss

23. The calculation of future economic loss required an assessment of the claimant’s most likely future circumstances, but for the injury, pursuant to s 13(1) of the Civil Liability Act. The amount calculated according to those circumstances must be adjusted for vicissitudes, in accordance with s 13(2). The submissions before the trial judge with respect to future economic loss referred to a report prepared by a vocational assessor (Mr Craig Martin), which identified average national earnings of a bank worker as at December 2014 as $1,180 gross per week and $943 nett per week. Those were the figures relied upon by the trial judge, with the implicit finding that her most likely future circumstances but for the injury involved fulltime employment as a bank worker. Taking a figure “slightly in excess of $1,100”, the judge assessed her weekly loss at $400. Allowing 20% for vicissitudes, he awarded an amount of $170,000 for loss of future earning capacity. For the reasons given by Simpson JA, there is no basis to interfere with that conclusion.

24. In calculating superannuation on that amount, he took a figure of “13% approximate”, allowing a further amount of $22,019. Although the reasoning was by no means clear, it should be assumed that the calculation of future economic loss was based on a nett loss per week. The allowance for superannuation should have been calculated according to the current obligation under the Superannuation Guarantee (Administration) Act 1992 (Cth), which is calculated at 9.5% of gross ordinary time earnings. (It may be assumed for present purposes that that figure equates to “average national earnings”.) Calculated on a net figure, this would probably not justify 13%, but the appellant accepted 12% in submissions at trial and the difference does not warrant appellate intervention. (The calculation was otherwise in accordance with the standard methodology: see Zorom Enterprises v Zabow. [15] )

    15. (2007) 71 NSWLR 354; [2007] NSWCA 106 at [60]-[62] (in my judgment, McColl JA agreeing) and at [72] (Campbell JA).

Future medical expenses

25. The trial judge allowed an amount of $30,000 for future medical expenses, comprising $5,000 for future medication and $25,000 for a “prospective operation.” [16] The submissions on the part of the plaintiff in this regard were as follows: [17]

“So future out-of-pocket expenses, I think somewhere I saw the cost of knee surgery as being about $25,000, but we don’t know when it is going to happen and whether it will fix things completely and physiotherapy will be necessary, even without it probably, pills, a bit of emotional treatment wouldn’t hurt etc.”

16.    Judgment, p 14.

17.    Tcpt, p 91(40).

26. The medical evidence which supported that assessment came from an orthopaedic surgeon, Dr Peter E Giblin. Dr Peter Giblin was not her treating surgeon but provided a medico-legal report on instructions from her solicitors, following a consultation on 28 May 2014. He concluded: [18]

“Her condition is stable and her general prognosis is good. She will always have some soft tissue symptoms in the left knee and left shoulder with permanent physical restriction.”

He then noted the physical constraints so far as work and other activities were concerned and continued:

“Her knee injury may be susceptible to long term deterioration and repetitive aggravation.

Further surgery is not mandatory at this juncture but cannot be excluded into the longer term. Surgical considerations may include, but not be limited to, a left total knee replacement. The all up hospital medical and ancillary costs would be in the order of $25,000 barring any complications ….”

18.    Report, 2 June 2014, p 4.

27. Dr Peter Giblin saw the claimant again on 15 January 2015. Noting that she would be fit for a sedentary job for about 20 hours per week, he continued: [19]

“Her ongoing medical management will remain conservative, symptomatic and supportive in character and it is likely that these costs will continue to be similar to those over the last 12 months on [a] pro-rata basis and required for a further 12 months.

In my view, surgical considerations are not mandatory at this juncture, but it is a reasonable clinical expectation that, based upon deterioration of her left knee, over a period of a generation [degeneration?], a left knee replacement operation may be required.”

19.    Report, 19 January 2015, p 3.

28. Dr John Stephen, orthopaedic surgeon, saw the claimant on 15 September 2014 and reported “no suggestions as to any further medical treatment.” Dr James Bodel, a further orthopaedic surgeon who saw the claimant on 5 January 2015 provided a report to her solicitors stating that she had “no current capacity for work”, but recommending no further treatment. (The evidence did not reveal whether he had seen Dr Peter Giblin’s reports.)

29. Having regard to the state of the evidence, it was an error to award the claimant the full amount of the possible operation on her knee, without determining the likelihood that such an operation would be required and when it might be required.

30. In Marsland v Andjelic [20] this Court accepted that Malec v JC Hutton Pty Ltd [21] required that claims for services which might be classified as possible rather than certain required an allowance based on possibilities, not probabilities. [22] The approach based on Malec, requiring an assessment of contingencies, was upheld in Amoud v Al Batat. [23]

    20. (1993) 31 NSWLR 162.

    21. (1990) 169 CLR 638.

    22.    Marsland at 182 (Kirby P and Meagher JA) and at 187 (Mahoney JA).

    23. [2009] NSWCA 333; 54 MVR 167 at [2]-[3] (Allsop P, Ipp JA agreeing) and [29] (in my judgment) in the context of s 126 of the Motor Accident Compensation Act 1999 (NSW).

31. The claimant accepted the criticism of the judgment in this regard and conceded that a figure between $10,000 and $15,000 would be appropriate. The appellant submitted that even that range was too high. The evidence did not support the proposition that such an operation was a certainty, or indeed a probability. It was a possibility and one which might not arise for many years. If the event were to occur many years into the future, it would be appropriate to discount the award of damages for that reason. Because no precise calculation can be made of the different variables, the only course open to the trial judge was to award a proportion of the present cost of such an operation. The exercise is entirely speculative, but because it must be undertaken purely on the written medical evidence (no doctor having been called at the trial) this Court is as well able to do so as the trial judge. I would award the amount at the bottom end of the claimant’s range, namely $10,000.

Past domestic services

32. The trial judge allowed a figure for past domestic services, provided on a gratuitous basis, at the rate of $27 per hour for 10 hours per week, over 213 weeks (described as 4.1 years), giving a figure of $57,564.

33. There was evidence supporting a need for what were described as “heavy domestic responsibilities” by Dr Peter Giblin. [24] In his final report Dr Giblin referred to “permanent physical restrictions in terms of pursuing her domestic duties in an unlimited and unrestrained fashion.” [25]

    24.    Report, 2 June 2014, p 5.

    25.    Report, 19 January 2015, p 1.

34. On the other hand, the records from the claimant’s general practitioner, Dr Tan Letran, included material from a rehabilitation consultant, Insight Services Group. A report of a meeting on 25 February 2014 stated that the claimant “continues to be independent with most activities of daily living, however occasionally requires the assistance of her husband or children with cleaning.” The evidence was put to her in cross-examination, based on a similar statement made in a meeting on 30 April 2014: [26]

“Q. I will put it this way: would it be fair to suggest that as of April last year you were doing all the domestic tasks at home, inside the house that is, at a modified pace, so you did it a bit more slowly, and that where you needed particular help on heavier things, you got that from your husband and children when required?

A. Yes.”

26.    Tcpt, p 52(30).

35. On being pressed, she said that she could do sweeping, but not mopping, although in part that problem appears to have been a difficulty with her left calf muscle, which she tore at some time after the accident. [27]

    27.    Tcpt, p 53(46).

36. In her evidence in chief she claimed that she could not do vacuuming, mopping, “[t]he heavier types of bathroom cleaning” or “standing too long hanging the clothes.” She could also not do gardening which (other than mowing) she had done prior to the accident. [28] Her daughter also gave evidence that, until she moved out in 2012, she was spending two hours a day and three or four hours on weekends, “[h]elping her with her shopping, her groceries, cooking and cleaning, mopping and vacuuming and putting … the clothes on the line, taking them off, putting them away and the bathrooms.” She also said that she changed linen and dusted. As to the time involved, her evidence was as follows: [29]

“Q. About how many hours a week were you spending through 2011, 2012, looking after these things?

A. Probably two hours a day. On the weekends, maybe half a day, three, four hours.

HIS HONOUR:

Q. I’m sorry what was that answer?

A. Three or four hours.”

28.    Tcpt, pp 29-30.

29.    Tcpt, p 58(48)-(50).

37. This somewhat uncertain evidence was sought to be clarified: [30] apparently by reference to a period after the daughter had moved out in 2012, she stating that she would go to her mother’s house maybe one or two days a week and would “try to get there every weekend, at least.” She estimated that, after she had moved out, she assisted “about four to six hours per week.” [31] She also said that her mother could go to the shops by herself and do the shopping “now”, but in respect of things like mopping “[t]hat might be a little bit hard for her because it would mean getting the bucket, the water and using that, or things like getting a bag of rice or something like that, a bag of onions, that would be hard for her, so she wouldn’t do things like that.”

    30.    Tcpt, p 59.

    31.    Tcpt, p 60(3).

38. The force of the daughter’s evidence was somewhat qualified in cross-examination. She could not remember a period in 2012 when her mother had been working four days per week. Further, much of her evidence about folding clothes and helping with the linen appeared to amount to volunteered help rather than required assistance.

39. In the course of oral submissions at trial, counsel for the Bank referred the judge to reports by Dr Letran, who stated, on 10 March 2013 “Mrs Haq does not required [sic] domestic assistance at the time of writing this report”. Dr Letran repeated that statement in a report of 30 November 2014, although he also noted that her current restrictions include “lifting restriction of 5kg from floor to chest … to avoid kneeling, lifting over shoulder height, avoid repetitive work, avoid cleaning and kitchen work.”

40. The judge was also referred to an early report by Dr Bodel, who examined the claimant on 31 January 2013 on the instructions of her solicitors, and noted that she “was able to return to work to modified duties six hours a day” and “should be capable of permanently modified duties that avoid kneeling, squatting or climbing or strenuous and repetitive tasks with the left upper [limb]”. The trial judge commented in the course of argument, “well, that is historical”, which was true, but it remained relevant to an assessment of her capabilities at that point in time.

41. Dr Bodel prepared a further report, consequent upon his examination on 5 January 2015, which remarked that the claimant “apparently has no current capacity for work” but continued that, “[b]ased on her clinical presentation she should be able to work at least 20 hours work per week in permanently modified duties and the banking type of work would be more appropriate than the nursing work.” Dr Bodel continued:

“She does require domestic assistance for heavy household maintenance and cleaning activities at the rate of two or three hours domestic assistance per week indefinitely as a consequence of her ongoing injury.”

42. None of that material was discussed by the trial judge in his reasons for awarding domestic assistance, although he appears to have accepted the figure of two hours per week as sufficient to cover current needs. The relevant explanation of the figures arrived at was in the following passage: [32]

“In assessing the domestic assistance, the Court accepts that because of the two operations and because of the continuing difficulties, she has had to have a significant amount of gratuitous support from primarily her daughter and I find that that, doing the best I can, equates to approximately 10 hours per week up to date. However, with the position now is that in the future I find that averaging it out, that most likely that she would need assistance for two hours per week to carry out the heavy work in her home, such as the mopping of the tiled areas ….”

32.    Judgment, pp 12-13.

43. The significant inconsistencies in the evidence required express consideration. Although it is true that the judge rejected the claimant’s assessment of a need for 15 hours per week, as that which she had received by way of domestic assistance in the past, there was no explanation as to how the 10 hour figure was reached. There was, at the very least, a strong indication in the daughter’s evidence that she provided filial assistance to her mother, and her evidence did not distinguish between that which was required as a result of the accident and that which she willingly gave in any event. That in turn cast a doubt upon whether the claimant’s estimate also confused those elements. While it is difficult to put much weight on medical evidence which purports to identify how much is required by way of domestic assistance, it is clear that the predominance of the medical evidence was not supportive of any finding of six hours or more per week being required for past assistance.

44. There is also some confusion in the judge’s own finding, which allowed 10 hours a week “up to date” and then described “the position now” as requiring an allowance of only two hours per week. While there was support for a finding of at least six hours per week up to April 2014, it is not possible to identify a clear basis upon which that intensity is justified thereafter. There was probably a greater need for domestic assistance during the period after the injury and up to the time of recovery from the second operation, which was undertaken on 22 November 2011.

45. Taking an average of 10 hours per week in the earlier period and six hours in the later period would allow an amount calculated at eight hours per week over three years (up to April 2014) at $27, which amounts to $33,700. However, the appellant conceded a figure of 6 hours per week up to the date of the trial, which would total $34,500. The latter amount should be allowed.

Future domestic assistance

46. The judge allowed an amount for future domestic assistance at the rate of two hours per week at commercial rates. Because that level of assistance would not have qualified the claimant for an award for gratuitous services, within the limitations imposed by s 15(3) of the Civil Liability Act, the award required the judge to be affirmatively satisfied that commercial assistance would be obtained in the future. That depended upon the last question and answer in the examination in chief of the claimant, which was in the following terms: [33]

“Q. So for the future, would you prefer to have paid or unpaid care to do this housework that you can’t do?

A. Paid care.”

33.    Tcpt, p 31(15).

47. Given the statutory constraint on an award for domestic assistance provided gratuitously, it is necessary for the trial judge to make a finding as to the specific need for commercial assistance. The case law in that regard is ambivalent as to whether that involves a Malec assessment of possibilities, or whether it requires a finding on the balance of probabilities. While the judge made a finding as to her likely need, he made no finding at all as to the likelihood or otherwise of the need being provided on a commercial basis. In circumstances where domestic assistance had been provided gratuitously by family members up to the date of trial, including during the period when the claimant was employed four days per week, this question needed to be addressed.

48. In Nominal Defendant v Lane [34] the Court concluded that damages should be awarded in respect of a need for commercial domestic assistance likely to arise when gratuitous assistance was no longer likely to be available. However, in Miller v Galderisi [35] an award was set aside where it was made “upon the assumption that the respondent required commercial domestic assistance immediately” when it was “clear that he did not require it immediately because it was being provided gratuitously, though … not at a level of intensity that permitted recovery from the appellant”.

    34. [2004] NSWCA 405 (Giles JA, Ipp and Tobias JJA agreeing) at [75].

    35. [2009] NSWCA 353 at [16] (Allsop P, Basten and Macfarlan JJA).

49. In Miller, the possibility that commercial domestic assistance would be required in the future was dealt with as a contingency, in accordance with reasoning in Malec. In Gordon v Truong [36] Simpson J (with the agreement of Macfarlan JA) approached the matter as involving a finding on the probabilities. The difference in views was noted in Sampco Pty Ltd v Wurth, [37] although the issue did not need to be determined because counsel were content to approach the matter on the basis of Malec contingencies. As a matter of principle, in my view, that approach is correct and is in accordance with Miller v Galderisi.

    36. [2014] NSWCA 97 at [133]-[134].

    37. [2015] NSWCA 117 at [99]-[101].

50. However, even if it be incorrect, the result may not be greatly different. In other words, the trial judge must consider at what point in time commercial assistance, will, on the balance of probabilities, eventuate and must make some allowance, by way of vicissitudes, against the possibility that other events will intervene.

51. On one view, there was no evidence addressing this question other than the statement of preference in the evidence of the claimant. Nevertheless, it could no doubt be accepted that at some stage her husband would be unavailable to assist and her adult children, including her daughter, might move further away or might otherwise not have time to provide the required assistance. It was also entirely possible that assistance might be obtained at different times in relation to different activities (paid assistance having always been used for lawn mowing) and might have been obtained sooner for other gardening, which is presently done by the claimant’s husband. [38] At the time of trial, both of the claimant’s sons lived at home, although both were expected to move out in the near future. Arguably, that would reduce the load on the claimant, although she was not asked whether that was so, or whether they provided helpful assistance. However, the daughter gave evidence that, when she was at the parental home, she saw both her brothers and her father assisting, continuing: [39]

“My dad cooks and likes to prepare meals, and my brothers they help around the house. They have their own girlfriends and wives as well, and they are regularly there as well, so they do their own thing, if they need to cook or clean or eat. They’re quite self-sufficient now.”

38.    Tcpt, p 30(24).

39.    Tcpt, p 60(10).

52. Doing the best one can with that evidence, it is likely that at some stage in the future the claimant would obtain commercial assistance. Indeed, that assistance may extend beyond that posited by the trial judge, namely two hours per week. However it is also likely that at some stage the claimant might have required commercial assistance with heavy cleaning or gardening for reasons unrelated to the accident. She has for some time been taking medication for type 2 diabetes and suffers from an anxiety state which the judge found was not attributable to the accident.

53. Taking these circumstances into account, it is not possible to undertake any precise calculation, beyond awarding an amount by way of a buffer against the various contingencies. I would allow a sum of $30,000 for future domestic services, provided on a commercial basis.

Conclusions

54. There was no challenge to the Fox v Wood component of $18,000, being compensation for tax payable on the worker’s compensation award, nor to the figure of $67,209 for past out-of-pocket expenses. These various amounts result in a sum, in round terms, of $582,000.

55. I would have made a reduction for 25% for contributory negligence. However, as that is a minority view, no reduction will be made. The judgment in the District Court should be set aside and there should be a judgment in favour of the claimant for $582,000, to date from 15 April 2015.

Costs

56. Although the appellant has been successful in obtaining a reduction in the damages of approximately 20%, it was entirely unsuccessful in its challenge with respect to liability and in respect of many of the specific issues raised in its notice of appeal. Even the exiguous written submissions filed in this Court were largely inadequate. Of some 9.5 pages, approximately half were devoted to issues relating to the duty of care, breach of duty, causation and the award with respect to non-economic loss, on which the appellant has failed. Most of these matters related to issues not raised before the trial judge and which should not have been raised on appeal. The claimant was thus put to expense in ways which should not have occurred.

57. In these circumstances, the Bank should pay 75% of the claimant’s costs in this Court. Given the unsatisfactory presentation of the case at trial and in this Court, one hopes that the fees charged (on both sides) will be modest.

Orders

58. The Court should make the following orders:

1. Allow the appeal as to quantum in part and set aside the orders made in the District Court on 15 April 2015.

2. In place thereof, give judgment for the plaintiff in an amount of $582,000, to date from 15 April 2015.

3. Otherwise dismiss the appeal.

4. Order that the appellant pay 75% of respondent’s costs in this Court.

59. SIMPSON JA: On 10 March 2011 the respondent, Ms Nur Haq, suffered a workplace injury. She commenced proceedings in the District Court for damages in negligence against the appellant, as occupier of the premises in which she was working at the time of her injury. After a hearing that began on 13 April 2015 and concluded the following day, the primary judge found that the respondent had established that the appellant was negligent (in respects that will be outlined below) and awarded the respondent damages in the sum of $713,532.05.

59. Pursuant to s 127 of the District Court Act 1973 (NSW), the appellant appeals against both the finding of liability and the quantification of damages.

The appeal

61. It is convenient at the outset to note the pleadings. By her Statement of Claim the respondent pleaded that she was employed by “Hoban Recruitment System” (“Hoban”), and assigned to work at bank premises at Five Dock of which the appellant was occupier. She was required to sit at a desk in the premises, underneath which was “a tangle of wires”. When she attempted to rise from her chair, her left foot became entangled in the wires, with the result that she fell and suffered injury. She pleaded that the appellant was under a duty of care to her, of which it was in breach, and was negligent.

62. The appellant filed a Defence. It put in issue the whole of the respondent’s pleadings, and asserted contributory negligence on her part. It particularised its case on contributory negligence in the following way:

“(a)  If [the respondent] establishes that there were wires under her desk and that her left foot became tangled in those wires then;

(i)  Failing to appreciate the existence of those wires; and

(ii)  Failing to keep her left foot clear of those wires.

(b)  Failing to take care for her own safety in the circumstances.”

Further, the appellant pleaded that, if the respondent sustained the injury, loss and damage alleged, then such injury, loss or damage was caused by her failure to avoid an obvious risk of the kind specified in s 5F of the Civil Liability Act 2002 (NSW), and that the respondent was presumed, by s 5G of the Civil Liability Act, to have been aware of the risk of harm and that the appellant was accordingly under no duty to warn her of that risk.

BACKGROUND

The respondent’s case at trial

63. The case made by the respondent was as follows. The respondent was born in January 1962 in Fiji. In 1977, at the age of 15, she migrated to Australia. She did not complete high school because she married. A son was born in 1980, and thereafter she had another three children, the last born in 1991. She worked in an administrative capacity for three years; in 1988 she took up employment in the Commonwealth Bank on a part time basis, working 23 hours per week. She worked as a teller, and in customer service. She maintained that employment for 22 years. She then developed an interest in a nursing career, and, in June 2010, enrolled in a part time course with a view to obtaining a certificate that would entitle her to work as a nursing aide. In October 2010 she ceased her employment with the Commonwealth Bank, and worked with a home care service organisation (KinCare), working with dementia patients in their homes. She was then working about 25 hours per week with KinCare.

64. In March 2011, she took part time employment with Hoban, which was a labour recruitment and hire company. She was to work 19 hours per week, and reduced her hours with KinCare to 10 per week. Her intention then was to work 19 hours per week for Hoban, and 20 hours per week with KinCare.

65. Hoban assigned the respondent to the appellant’s branch at Five Dock, where she was employed as a teller. She commenced work on 7 March 2011. She was to undertake a training period of two weeks. During the first three days she was familiarising herself with “computer compliance and code of conduct …”. She was under the supervision of a manager called Mary, and was using a desk in Mary’s office.

66. On 10 March the manager was serving a customer in her office, and directed the respondent to one of three desks in an open area of the premises. The respondent was seated on a wheeled swivel chair at a computer at a desk. After somewhere between 1½ and 2½ hours, she stood up to take a break. In order to do so, she slid her chair back from the desk, and swivelled to the left; she stood and took a step with her right foot, and then another step with her left foot. She fell to the floor, and felt a sharp pain in her knee. She saw that her left foot had become entangled in “a bunch of wires” that were under the desk and of which she had previously been unaware. She was assisted to her feet by other employees. She suffered a fracture of the left knee, that required surgery on two occasions. She also suffered injury to her left shoulder. She saw a general practitioner and, the next day, attended at the Liverpool Hospital. She experienced pain, and in June 2011 underwent surgery to her knee. She continued to have pain, and had further surgery in November 2011. She did not work again until March 2012. During that time, she was in receipt of workers compensation payments from Hoban’s workers compensation insurer.

67. In March 2012, she was given light work by Hoban, in its city office. Initially, she was working four hours a day, three days a week. That built up to eight hours a day, four days a week.

68. She continued to have pain in both the left knee and the left shoulder, and the left elbow.

69. In October 2012 Hoban terminated her light duties, and, the following month, her employment. She continued to receive workers compensation payments.

70. There was other evidence on the issue of damages to which I will come in due course.

The proceedings in the District Court

71. The respondent and her daughter were the only witnesses to give oral evidence. There was a considerable volume of documentary medical evidence, to which I will come. I will deal first with the issues relevant to liability.

liability

72. The respondent gave evidence in chief in accordance with the above outline. She was cross-examined by senior counsel for the appellant. From the transcript of the cross-examination, it can be seen that the matters in issue were relatively confined. It was put to the respondent that, as she approached the work area, she was able to see the work station, and the chair. She agreed that that was so. It was then put to her that she was also able to see the floor area where she was about to work, but she did not agree with that proposition. It was then put to her (having regard to her evidence that her fall commenced when she took the second step, with her left foot) that her foot did not become entangled in wires under the desk, and that, if it did become caught, it was on “a wire adjacent to” where she had been sitting. That question was followed by some discussion between senior counsel and the trial judge, as a result of which it was not answered. (However, the question is important in providing an understanding of the appellant’s case as it was presented at trial.)

73. The transcript records the following:

“Q.  On the day of your accident when you went to sit down at the work station, the work station, the computer, the telephone, were all directly in front of you, weren’t they?

A.  Yes.

Q.  If you wanted to, you could look at them to see how they were connected, couldn’t you?

A.  I didn’t notice that.

Q.  I understand that, but if you wanted to, you could--

A.  Yeah. It was normal for--

Q.  It is directly in front of you, wasn’t it?

…”

It may be inferred that the purpose of this cross-examination was to lay a foundation for a submission that the injury was entirely, or partly, the respondent’s own fault.

74. The cross-examination that followed appears to have been designed to suggest that, as the respondent was aware that there was a telephone and a computer on the desk, it was obvious to her that there would be cabling or wiring to connect them to power sources. In another question, it was suggested to her that cables were:

“… clearly visible to you if you wanted to look?”

Objection was taken to that question, and it was never answered. Overall, the cross-examination was directed to suggesting, as pleaded in the Defence, that the cabling or wiring was obvious, and that the respondent ought to have been aware of it – and that that appellant was therefore under no duty to warn her of the risk.

75. The only evidence with respect to liability tendered on behalf of the appellant was a photograph that had been shown to the respondent during the course of her cross-examination. The respondent agreed that it depicted a work area with a number of desks, at least one of which had a computer screen, and two of which did not. On the desk on which there was a computer screen, there was also a telephone. The respondent agreed that the photograph depicted the work area as “it was generally” at the time of her injury. (The photograph throws no light on the issues as the claim was litigated.)

76. Senior counsel for the appellant then addressed on the issue of liability. This was still on the first day of the trial.

77. He commenced his address by referring to two decisions of this Court, Rallis v Pang [2003] NSWCA 202 and Transpacific Industrial Solutions Pty Ltd v Phelps [2013] NSWCA 31; 230 IR 438. He drew attention to [26] of Rallis v Pang, in which this Court said:

“… there was no evidence that the object upon which the claimant stepped and which caused her to lose her balance was debris from the first opponent’s building work. Nor in my opinion, could it be inferred that it was. In this regard, the evidence did not identify with any precision where and how the accident occurred to enable the primary judge to determine what, if anything, could have been done to avoid it. His Honour expressed misgivings with respect to the imprecision of the evidence on these important issues and, in my opinion, he was clearly justified in so doing. In a case such as the present, in order to assert a duty of care to avoid the risk of injury that she sustained, the claimant was required to establish with a degree of precision not only the location but also the manner and cause of her fall. That precision was conspicuously absent in the present case.” (italics added)

78. Senior counsel then argued, in effect, that the use of wires and cables in the workplace area is commonplace. So far as I can discern from the transcript, the argument put on behalf of the appellant was that there was nothing untoward about the location of the wires, and, accordingly, the appellant had not been shown to have been in breach of any duty it owed to the respondent. That, it seems, was said to be because any risk was obvious within the meaning of s 5F of the Civil Liability Act, the consequence of which is that s 5G applied. Section 5G enacts a presumption that a person who suffers injury as a result of the materialisation of an obvious risk is presumed to have been aware of that risk unless he or she proves on the balance of probabilities that he or she was not so aware.

79. There was a degree of debate between senior counsel and the trial judge, during the course of which his Honour expressed the view that it was “an inescapable conclusion” on the (unchallenged) evidence of the respondent that her foot had in fact become entangled in wiring that was under her desk. Senior counsel finished by saying:

“I can’t put it any higher than that, your Honour …”

He then addressed, briefly, on contributory negligence. That concluded his address on liability.

80. During the course of senior counsel’s address, no mention was made of any provision of the Civil Liability Act, including ss 5F and 5G which had been specifically pleaded in the Defence.

81. The court then adjourned overnight. The following morning the case for the respondent was briefly reopened in order to adduce evidence of hourly rates paid to the respondent by KinCare in her other part-time employment. Senior counsel for the respondent then addressed, and junior counsel for the appellant also addressed, on damages. At the conclusion of argument the trial judge proceeded to deliver judgment.

The judgment

82. That part of the judgment that deals with liability is brief, as might be expected in a case in which the oral evidence (on liability) was given by one witness, and was concluded in the space of a day, and in which the issues that were presented were as narrow as has been set out above.

83. With respect to liability, the findings of the primary judge were as follows. He found the respondent to have been “a very impressive witness”. (On one view, this finding may have been in the context of the respondent’s damages evidence, but it is clear that his Honour accepted her as a truthful witness, and, indeed, he said that he “accept[ed] entirely [her] evidence” that she had not seen or been aware of the wires before her fall.)

84. Having recited the basic facts (most of which were not in dispute), he said:

“The issue in this case is the claim made by [the appellant] of contributory negligence and in respect of that claim at para (a) of the defence, it is pleaded that if [the respondent] establishes that there were wires under her desk and that her left foot became tangled in those wires then [he paraphrased the pleading of contributory negligence in the defence].

The pleading follows with reference to ss 5F of the Civil Liability Act 2002 and 5G of the said Act. That is, that [the appellant], as per the cross-examination referred to earlier (that is the cross-examination of [the respondent]), must have been or should have been aware of the risk, the risk being so obvious. In respect of that matter, I accept entirely [the respondent’s] evidence on this matter; that is, that she was not aware of the risk and that she had not seen the loose wiring …

It seems obvious that with the cabling of any sort in a public place, such as a bank chamber where there are either customers and/or employees, that such cabling should be placed in a way where it is unlikely to become a trip hazard. On [the respondent’s] evidence, it clearly was a trip hazard, and, on her evidence, she was not aware of the risk and it was not from her previous experience a matter that she would have gone and looked for either by looking under the desk or getting down on perhaps hands and knees in order to investigate what was the cabling/wiring to the work station she had been directed.

… The one photograph tendered is, at best, poor quality, and the uncertainty of when the photograph was taken makes the court’s task difficult in trying to establish what, in fact, happened or being able to assess the risk hazard. In absence of [the appellant] producing any evidence to identify the risk hazard as to whether or not it was obvious or to what extent it was obvious, and noting that there is no photograph from behind what would have been the seated position of [the respondent], the Court is unable to make such a finding, and, therefore, the claim under sections of contributory negligence [sic] … is not made out. It follows then that the claim that [the respondent] [makes] must be successful on the question of liability.”

(The reference in the third paragraph of the extract to the respondent’s previous experience was a reference to evidence of her previous employment with the Commonwealth Bank.)

85. The remainder of the judgment deals with damages.

The appeal

86. Notwithstanding the absence of any reference to the Civil Liability Act in the submissions on behalf of the appellant to the primary judge, or any invitation to him to consider any of its provisions, or the identification of any disputed issue under that Act, the grounds of appeal with respect to primary liability are almost exclusively (with two exceptions) directed to that subject.

87. The appellant complained that the primary judge failed to “address and determine” the issues of liability with reference to the provisions of the Civil Liability Act (Ground 1); that he failed to “find and articulate the relevant duty of care owed by the appellant to the respondent (Ground 3); that he failed to identify the “risk of harm” for the purposes of s 5B(1) (Ground 4); that he failed to determine whether that risk was foreseeable (in terms of s 5B(1)(a)) (Ground 5); that he failed to determine whether that risk was “not insignificant” within s 5B(1)(b) (Ground 6); that he erred in not determining whether the appellant had breached its duty of care, having regard to ss 5B(1)(c) and 5B(2) (Ground 7); and that he erred in failing to deal with the question of causation, in terms of s 5D (Ground 8). The remaining grounds in respect of liability complained that the primary judge misunderstood the nature of the appellant’s defence (Ground 2); and assert error in failing to find contributory negligence on the part of the respondent (Ground 9).

88. It may here be noted that, while only ss 5F and 5G of the Civil Liability Act featured in the pleaded Defence, those sections do not feature in the complaints made in the Notice of Appeal. Those provisions of the Civil Liability Act that do feature in the grounds of appeal did not appear in the Defence, and were not the subject of any submissions to the primary judge.

89. When pressed at the conclusion of oral argument, senior counsel abandoned reliance on Ground 6 (whether the risk of harm was not insignificant) and Ground 8 (causation).

The appellant’s submissions

90. The appellant’s written submissions are not always easy to follow. They assert that the primary judge misunderstood the nature of the case at trial and failed to deal with it in accordance with proper principles “including s 5B Civil Liability Act …”; and that he “incorrectly identified ‘the issue in the case’ as being [the appellant’s] claim of contributory negligence”, and to have “overlooked the question of primary negligence”. The submissions went on:

“13  The state of the evidence presented by [the respondent] made if [sic] difficult for a positive inference implying negligence on the part of [the appellant] to be established to the reasonable satisfaction of a judicial mind.”

They cited the penultimate sentence of the paragraph cited above from Rallis v Pang.

91. The written submissions then addressed, sequentially, duty of care, breach of duty, causation, and contributory negligence.

(i)  Duty of care

92. With respect to duty of care, it was submitted that the scope of an occupier’s duty is “delimited by the expectation that users will exercise reasonable care for their own safety”, and that:

“17  Getting up from a chair in an office even in the presence of telephone or computer cords is a simple uncomplicated everyday activity. The sole cause of [the respondent’s] fall was her failure to keep a reasonable look out for her own safety …”

The submission was then made:

“… In those circumstances no duty should be found to have been owed by [the appellant] to [the respondent].”

93. Reliance was placed on Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy; FBIS International Protective Services (Aust) Pty Ltd v Hennessy [2015] NSWCA 253, in which Leeming JA said (inter alia):

“53  Finally, the scope of an occupier’s duty is delimited by the expectation that users will exercise reasonable care for their own safety … [and, citing Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 234 CLR 330 at [45], per Gummow J] the expectation that a potential plaintiff will exercise reasonable care in a case such as the present goes not merely to the assessment of breach, but is a ‘specific element contained, as a matter of law, in the scope of the … duty of care’.” (internal citations omitted)

94. At pars 19-20 of the appellant’s submissions it was put that the respondent was required to identify and articulate clearly “the risk of harm” which she alleged, and that the primary judge did not determine the risk of harm. However, it was postulated that:

“… Here the ‘risk of harm’ would seem to be that [the respondent] would in getting up from the work station, trip and fall and suffer an injury as a result of getting her foot caught on some hazard within the premises.”

95. The written submissions with respect to duty of care concluded with the observation that the respondent “led no evidence as to foreseeability”, and that the primary judge made no finding in that respect; nor did he make any finding as to whether the risk of harm was “not insignificant” (a reference to s 5B(1)(b) of the Civil Liability Act).

Future Domestic Assistance

235. The submission made on behalf of ANZ at the trial in relation to damages for future domestic assistance was opaque. However, I do not read the submission as incorporating a concession which binds ANZ on the appeal.

236. In my view, the evidence fell well short of demonstrating that on the balance of probabilities the respondent required or would utilise commercially provided domestic care services for two hours per week from the date of the trial indefinitely in the future. Without resolving the issue identified by Basten JA (at [47]-[49]), which was not the subject of argument, I agree with his Honour’s conclusion that an allowance of $30,000 is appropriate.

Future Medical Expenses

237. I agree with Simpson JA.

Conclusion

238. For the reasons I have given, I would reject ANZ’s challenge to the findings on liability and contributory negligence, but allow the appeal in part on the question of damages. I would allow the following heads of damage:

Non-Economic Loss -	$103,000.00	(unchanged)
Past Out of Pocket -	$67,209.00	(unchanged)
Past Economic Loss -	$116,000.00	(reduced from $158,847.00)
Past Superannuation -	$13,000.00	(reduced from $17,473.17)
Future Economic Loss -	$169,377.05	(unchanged)
Future Superannuation -	$22,019.00	(unchanged)
Past Domestic Assistance -	$34,500.00	(reduced from $57,564.00)
Future Domestic Assistance -	$30,000.00	(reduced from $70,044.00)
Future Medical Expenses -	$10,000.00	(reduced from $30,000.00)
Fox v Wood	$18,000.00	(unchanged)
$583,105.05

239. On this basis I would reduce the total damages award from $713,532.05 to $583,105.05. As the difference between this figure and the rounded figure of $582,000 proposed by Basten JA is very small, I am content to adopt the latter figure.

240. For those reasons, I agree with the orders proposed by Basten JA (at [58]), which take account of this Court’s majority finding on the issue of contributory negligence.

241. Since ANZ has only had limited success on the appeal, I agree that ANZ should be ordered to pay 75 per cent of the respondent’s costs of the appeal. I agree with Basten JA’s observations on the conduct of the case (at [56]).

**********

Endnotes

Amendments

09 June 2016 - "s 15(3)" substituted for "s 15B(2)" - [46]

Decision last updated: 09 June 2016