Avopiling Pty Ltd v Bosevski

[2018] NSWCA 146

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v The Workers Compensation Nominal Insurer [2018] NSWCA 146

Hearing dates:

22, 23 February 2018

Date of orders:

27 July 2018

Decision date:

27 July 2018

Before:

McColl JA at [1];
Payne JA at [2];
White JA at [182]

Decision:

In 2017/117390:

 

1. Leave to amend the amended statement of claim sought on 23 February 2018 is refused;

 

2. Appeal allowed;

 

3. Set aside orders 1 – 4 made by the primary judge on 3 May 2017;

 

4. Within seven days Mr Bosevski to file proposed orders to be made by the Court to reflect these reasons together with any written submissions in support of those proposed orders limited to 10 pages;

5. Within 14 days Avopiling to file any competing proposed orders to be made by the Court to reflect these reasons together with any written submissions in support of those proposed orders limited to 10 pages;

 

6. Within 21 days Mr Bosevski to file any final version of proposed orders to be made by the Court to reflect these reasons together with any written submissions in support of those proposed orders limited to 5 pages;

 

7. Avopiling to pay 60 per cent of Mr Bosevski’s costs of the appeal as agreed or assessed.

 

In 2017/117381:

 

1. Appeal dismissed;

 2. Avopiling to pay the Workers Compensation Nominal Insurer’s costs of the appeal as agreed or assessed.

Catchwords:

TORTS – negligence – employer – whether formulation of risk of harm impermissibly narrow – whether breach of duty of care – whether employer should have appreciated risk of harm

 

TORTS – negligence – contributory negligence – risk of harm – whether formulation of risk of harm impermissibly narrow – whether respondent or his employer knew or should have known of risk of harm – whether open to the primary judge to draw a Jones v Dunkel inference from the failure of the appellant to call the only two people who could give evidence about the moment of injury

 

DAMAGES – basis of assessment – future economic loss – Civil Liability Act 2002 (NSW), s 13 – approach in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 – required approach in case of future attendant care needs – required approach in case of future medical expenses

  COSTS – whether it is appropriate to award costs on the basis of mixed success on significant and separable parts of appeal

Legislation Cited:

Civil Liability Act 2002 (NSW), Part 2, ss 3B, 5B, 5R, 5S, 5T, 11A, 12, 13, 15, 18
Workers Compensation Act 1987 (NSW), ss 151E, 151Z
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 51.53

Cases Cited:

Amoud v Al Batat [2009] NSWCA 333
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649; [1968] HCA 9
Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17
Babbage v Dungog Shire Council [2003] NSWSC 562
Blacktown City Council v Hocking [2008] NSWCA 144
Blatch v Archer (1774) 1 Cowp 63; (1774) 98 ER 969
Bosevski v Avopiling Pty Ltd; The Workers Compensation Nominal Insurer v Avopiling Pty Ltd (No 2) [2018] NSWSC 205
Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Brown v New South Wales Trustee and Guardian [2012] NSWCA 431
Dang v Chea [2013] NSWCA 80; (2013) 63 MVR 240
Doppstadt Australia Pty Ltd v Lovick & Sons Developments Pty Ltd (No 2) [2014] NSWCA 219
Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20
Fox v Wood (1981) 148 CLR 438; [1981] HCA 41
Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151
Ghunaim v Bart [2004] NSWCA 28
Henderson v Campbell [2002] NSWSC 1202
James v Surf Road Nominees Pty Ltd ((No 2) [2005] NSWCA 296
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20
Miller v Galderisi [2009] NSWCA 353
Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90
Port Macquarie Hastings Council v Mooney [2014] NSWCA 156
Richard v Mills ((2003) 27 WAR 200; [2003] WASCA 97
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42
Sampco Pty Ltd v Wurth [2015] NSWCA 117
Sharman v Evans (1977-1978) 138 CLR 563; [1977] HCA 8
Shaw v Thomas [2010] NSWCA 169
Shoalhaven City Council v Humphries [2013] NSWCA 390
United Church of Australia Property Trust ((NSW) v Miller [2015] NSWCA 320
Van Gervan v Fenton (1992) 175 CLR 327; [1992] HCA 54
White v Benjamin [2015] NSWCA 75

Category:

Principal judgment

Parties:

2017/117390

 

Avopiling Pty Ltd (Appellant)
Riste Bosevski (Respondent)

 

2017/117381

  Avopiling Pty Ltd (Appellant)
The Workers Compensation Nominal Insurer (Respondent)

Representation:

Counsel:

 

Mr M Windsor SC / Mr R Perla (Appellant in both matters)
Mr L King SC / Mr A L McSpedden (Respondent in 2017/117390)
Mr N Chen SC / Mr F Doak (Respondent in 2017/117381)

 

Solicitors:

  Moray & Agnew (Appellant in both matters)
Villari Lawyers (Respondent in 2017/117390)
HWL Ebsworth (Respondent in 2017/117381)

File Number(s):

2017/117390; 2017/117381

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law Division

Citation:

[2016] NSWSC 1893

Date of Decision:

29 March 2017

Before:

Rothman J

File Number(s):

2009/337219; 2011/70381

Headnote

[This headnote is not to be read as part of the judgment]

In 2006 Mr Riste Bosevski, a labourer employed by Professional Contracting Pty Ltd, was injured at a work site in regional New South Wales operated by Avopiling Pty Ltd. Two employees of Avopiling Pty Ltd were erecting a mast on a pile driving rig at the site when an auxiliary cable on the mast snapped, causing metal objects to fall and strike Mr Bosevski, who was standing with his supervisor in the vicinity of the pile driving rig. Mr Bosevski suffered injuries to his head, neck and chest.

In 2009 Mr Bosevski commenced proceedings in negligence against Avopiling Pty Ltd. In 2011 Avopiling Pty Ltd filed a defence claiming, inter alia, contributory negligence by Mr Bosevski. In its defence, Avopiling Pty Ltd also alleged that any liability it had to Mr Bosevski ought to be reduced under s 151Z(2) of the Workers Compensation Act 1987 (NSW) by reason of the negligence of Professional Contracting Pty Ltd.

Later in 2011 the Workers Compensation Nominal Insurer, which by that time was responsible for Professional Contracting Pty Ltd’s obligations to pay workers compensation, commenced proceedings against Avopiling Pty Ltd seeking indemnity pursuant to s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW) for payments it had made to Mr Bosevski. In its defence, Avopiling Pty Ltd repeated the allegation that any liability it had to Mr Bosevski ought to be reduced under s 151Z(2) of the Workers Compensation Act 1987 (NSW) by reason of the negligence of Professional Contracting Pty Ltd.

Both sets of proceedings were heard together. In the negligence proceedings, the primary judge found that Avopiling Pty Ltd had been negligent. The primary judge awarded Mr Bosevski damages in the sum of $2,632,390.93. The primary judge found that Professional Contracting Pty Ltd had not been negligent and Mr Bosevski had not been guilty of contributory negligence. In the indemnity proceedings, the primary judge found in favour of the Workers Compensation Nominal Insurer in the sum of $919,225.23. The primary judge rejected Avopiling Pty Ltd’s defence that Professional Contracting Pty Ltd had also been negligent.

On appeal the issues were:

(i)   Whether the primary judge formulated the risk of harm for the purposes of the negligence of Professional Contracting Pty Ltd and the contributory negligence of Mr Bosevski in a way that was impermissible;

(ii)    Whether the primary judge erred in finding that Professional Contracting Pty Ltd was not negligent;

(iii)   Whether the primary judge erred in not making a finding of contributory negligence by Mr Bosevski;

(iv)   Whether the primary judge erred in his Honour’s award of damages.

The Court (Payne JA, McColl and White JJA agreeing) held, allowing the appeal in part:

In relation to issue (i), per Payne JA (McColl JA agreeing and White JA agreeing in part and not deciding if the formulation of the risk of harm was too narrow):

Avopiling Pty Ltd bore the onus of proof, including the identification of the correct risk of harm, to establish negligence in relation to Professional Contracting Pty Ltd and contributory negligence in relation to Mr Bosevski. It failed to frame its pleadings in respect of the risk of harm by specific reference to relevant provisions of the Civil Liability Act 2005 (NSW) or identify the correct risk of harm in its pleadings: [40]-[42]

Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151, applied.

The primary judge’s formulation of the risk of harm was not in error. It identified the source and general causal mechanism of the injury: [43]

Civil Liability Act 2005 (NSW), s 5B; Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42; Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90, applied.

In relation to issue (ii), per Payne JA (McColl and White JJA agreeing):

The primary judge was correct to find that Professional Contracting Pty Ltd was not negligent. The evidence established that Mr Bosevski and his supervisor were acting in the scope of their duties by being in the vicinity of the pile driving rig: [50]-[52], [59], [62], [79]-[81]

It was not demonstrated that Professional Contracting Pty Ltd knew, or had any reason to know, of the risk of harm, or that Mr Bosevski or his supervisor could appreciate the risk of harm: [55]-[58]

In relation to issue (iii), per Payne JA (McColl and White JJA agreeing):

The primary judge was correct not to make a finding of contributory negligence by Mr Bosevski. The evidence established that Mr Bosevski had a legitimate reason for being in the vicinity of the pile driving rig when he was injured, and Avopiling Pty Ltd did not prove that Mr Bosevski knew or ought to have known of the risk of harm: [66]-[69], [79]-[81]

Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34; Ghunaim v Bart [2004] NSWCA 28, applied.

In relation to issue (iv), per Payne JA (McColl and White JJA agreeing):

The primary judge’s award of damages should be varied in respect of some heads of damage and left undisturbed in respect of other heads. Save for certain agreed adjustments, Avopiling Pty Ltd failed to show error in the award of damages for past economic loss, loss of future earning capacity and past gratuitous care: [94]-[95], [101]-[103], [111]-[117], [169]

Civil Liability Act 2002 (NSW), s 15; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20, applied.

Sampco v Wurth [2015] NSWCA 117, distinguished.

Section 13 of the Civil Liability Act 2002 (NSW) applies to damages for future economic loss both in respect of “future earning capacity” and “other events on which the award is to be based”. The latter category includes damages for future attendant care, lawn mowing, gardening and handyman services, and future medical expenses. Sub-section (2) requires an approach to the assessment of damages which is consistent with the approach in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20. This extends to the assessment of damages for future attendant care, lawn mowing, gardening and handyman services, and future medical expenses, consistent with principle and the weight of authority in this Court. This involves calculating the percentage possibility of a future event occurring but for the injury and then adjusting the award of damages according to that calculation: [128]-[137]

Civil Liability Act 2002 (NSW), Part 2, ss 11A, 12, 13; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20; Marsland v Andjelic (1993) 31 NSWLR 162; Amoud v Al Batat [2009] NSWCA 333; Miller v Galderisi [2009] NSWCA 353; White v Benjamin [2015] NSWCA 75; Metaxoulis v McDonald’s Australia Ltd [2015] NSWCA 95, applied.

Sampco Pty Ltd v Wurth [2015] NSWCA 117, considered.

Gordon v Truong [2014] NSWCA 97, not applied.

It does not follow from the use of the life expectancy tables that no further allowance for vicissitudes is warranted for future attendant care: [138], [153]

Bresatz v Przibilla (1962) 108 CLR 541; [1962] HCA 54; Sharman v Evans (1977-1978) 138 CLR 563; [1977] HCA 8; Simmons v Hillsdon (No 2) [1965] NSWR 837; Henderson v Campbell [2002] NSWSC 1202; Babbage v Dungog Shire Council [2003] NSWSC 562; Richard v Mills (2003) 27 WAR 200; [2003] WASCA 97, distinguished.

The primary judge did not approach the assessment of damages for future attendant care, lawn mowing, gardening and handyman services, and future medical expenses in the manner required by section 13 of the Civil Liability Act 2002 (NSW): [139], [141], [159], [165]

In reassessing the award of damages for future attendant care, an award of damages for future attendant care on a commercial basis is warranted because the required services are readily available and likely to be availed of by Mr Bosevski. A discount of 25 per cent should be made to that award to reflect the various risks in Mr Bosevski’s circumstances and the chance that commercial assistance will not be obtained: [139], [142], [147], [149]-[152]

Uniform Civil Procedure Rules 2005 (NSW), r 51.53; Civil Liability Act 2002 (NSW), s 13; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20; Van Gervan v Fenton (1992) 175 CLR 327; [1992] HCA 54; Australia and New Zealand Banking Group Ltd v Haq [2016] NSWCA 93; White v Benjamin [2015] NSWCA 75, applied.

In reassessing the award of damages for lawn mowing, gardening and handyman services, a discount of 25 per cent is appropriate: [159], [169]

Civil Liability Act 2002 (NSW), s 13; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20, applied.

In reassessing the award of damages for future treatment expenses, a discount of 10 per cent is appropriate: [166], [168], [169]

Civil Liability Act 2002 (NSW), s 13; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20, applied.

Judgment

1. McCOLL JA: I agree with Payne JA.

2. PAYNE JA: This is an appeal from a decision of Rothman J in the Supreme Court of NSW concerning two sets of proceedings that were heard together: Bosevski v Avopiling Pty Ltd; The Workers Compensation Nominal Insurer v Avopiling Pty Ltd [2016] NSWSC 1893.

3. The two proceedings arose from the same facts and concerned liability in relation to a catastrophic injury suffered by Mr Riste Bosevski, who was struck by objects flying off a pile driving rig when he was working at a site in regional New South Wales, and the extent to which the Workers Compensation Nominal Insurer can recover indemnity from Avopiling Pty Ltd in respect of workers compensation payments made to Mr Bosevski. It does not appear that the primary judge ordered that the evidence in one proceeding be evidence in the other, but that was clearly the basis upon which the proceedings were conducted.

Background

4. In January 2006, the appellant, Avopiling Pty Ltd ((“Avopiling”), entered into an agreement with the NSW Department of Education & Training to undertake works at a school site in Cringila, NSW (“the Cringila site”).

5. On 22 September 2006, Mr Bosevski was injured at the Cringila site while working as a labourer employed by Professional Contracting Pty Ltd (“Professional Contracting”).

6. The primary judge recorded that the cause of the accident was not in issue: at [4]. Two Avopiling employees were erecting a mast on a pile driving rig on the oval at the Cringila site. A primary and an auxiliary cable were attached to the mast. The auxiliary cable snapped during the erection of the mast. The snapping occurred under extreme tension. This tension was caused by metal objects at the end of the auxiliary cable being pulled into the sheave in the “cathead” at the top of the mast. Some metal objects were too large to go through the opening. The snapping of the auxiliary cable caused various metal objects, being a bobweight, thumb eye, hook, chainlegs and various links, weighing in total approximately 25 kilograms, to be released from the “cathead” and fall to the ground. Mr Bosevski was struck by one, some or all of the metal objects on the head, neck and chest. The primary judge found that at the time he was struck, Mr Bosevski was standing more than six metres away from the pile driving rig: at [282].

7. On 26 November 2009, Mr Bosevski commenced proceedings in negligence seeking damages from Avopiling in relation to the injuries suffered on 22 September 2006 (“the negligence proceedings”). Mr Bosevski did not sue his employer, Professional Contracting. The reasons why the Workers Compensation Nominal Insurer rather than Professional Contracting was a party to the litigation were not before this Court, although it may be inferred that at some time before or during the litigation Professional Contracting became insolvent.

8. On 25 May 2011, Avopiling filed a defence in the negligence proceedings claiming, inter alia, contributory negligence by Mr Bosevski pursuant to ss 5R and 5S of the Civil Liability Act 2002 (NSW) (“Civil Liability Act”). In its defence to Mr Bosevski’s claim, Avopiling also alleged that if ((which was denied), Mr Bosevski was entitled to damages for negligence from Avopiling, Professional Contracting was a joint tortfeasor and the amount of damages Avopiling was liable to pay should be reduced pursuant to s 151Z((2) of the Workers Compensation Act 1987 (NSW) (“Workers Compensation Act”); that is, Avopiling sought to prove that Professional Contracting’s negligence was a cause of Mr Bosevski’s injuries so as to reduce the amount of damages Avopiling was liable to pay Mr Bosevski. Avopiling’s negligence claim against Professional Contracting was particularised as follows:

“[Avopiling] repeats and relies upon the particulars of negligence alleged in the Amended Statement of Claim”.

9. On 27 May 2011, Avopiling filed a cross-claim against Professional Contracting (later amended to become a first amended claim against the Workers Compensation Nominal Insurer) in the negligence proceedings, alleging that Professional Contracting was negligent, for which the Workers Compensation Nominal Insurer was liable. That cross-claim was discontinued at the outset of the trial before the primary judge and is no longer relevant. A second cross-claim against Soilmec SPA (the manufacturer of the pile driver) was filed by Avopiling but is also no longer relevant.

10. On 10 June 2011, the Workers Compensation Nominal Insurer, which was by that time responsible for Professional Contracting’s obligations to pay workers compensation, commenced proceedings against Avopiling seeking indemnity for workers compensation payments it had made to Mr Bosevski pursuant to s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW) (“the indemnity proceedings”). Avopiling’s defence to the indemnity proceedings asserted that if (which was not admitted) the Workers Compensation Nominal Insurer was liable to make payments to Mr Bosevski under the Workers Compensation Act, Mr Bosevski’s injuries were caused or contributed to by the negligence of Professional Contracting and, accordingly, any liability of Avopiling pursuant to s 151Z(1)(d) of the Workers Compensation Act ought to be reduced to take account of Professional Contracting’s negligence. Thus, as will become apparent, the interests of Mr Bosevski and the Workers Compensation Nominal Insurer were aligned in the litigation to the extent that each sought to resist the claim that Professional Contracting’s negligence was a cause of Mr Bosevski’s injuries and each sought to support the award of damages made in favour of Mr Bosevski against Avopiling.

11. On 13 April 2015, the trial of both the negligence proceedings and the indemnity proceedings commenced before Rothman J. On 29 March 2017, Rothman J delivered his principal judgment. In relation to the negligence proceedings, his Honour found Avopiling had been negligent and awarded Mr Bosevski damages in the sum of $2,632,390.93 including interest. The primary judge rejected Avopiling’s claim that Mr Bosevski’s damages should be reduced by reason of contributory negligence. The primary judge also rejected Avopiling’s defence that Professional Contracting was negligent and thus a joint tortfeasor and declined to order that the amount of damages Avopiling was liable to pay should be reduced for that reason. In relation to Avopiling’s amended cross-claim in the negligence proceedings, it is apparent from orders 3 and 4 made on 3 July 2017 that his Honour had overlooked the fact that Avopiling’s first amended cross-claim against the Workers Compensation Nominal Insurer had been discontinued. In relation to the indemnity proceedings, his Honour found for the Workers Compensation Nominal Insurer against Avopiling in the total sum, as at 3 May 2017, of $919,225.23. As earlier noted, the primary judge rejected Avopiling’s defence that Professional Contracting was also negligent.

9. On 29 June 2017, Avopiling filed notices of appeal in respect of both the negligence proceedings and the indemnity proceedings. On 22 (for the indemnity proceedings) and 23 (for the negligence proceedings) February 2018, amended notices of appeal were filed in court by Avopiling.

10. In this appeal, Avopiling does not dispute that it was negligent. However it contends that the primary judge ought to have found that Professional Contracting was also negligent and a joint tortfeasor, and that Mr Bosevski was guilty of contributory negligence so as to reduce its liability to the Workers Compensation Nominal Insurer and Mr Bosevski respectively. Avopiling also sought a reduction in the award of damages payable to Mr Bosevski by reason of various challenges to the damages award made by the primary judge.

Primary Judgment

14. On the issue of negligence by Avopiling, the primary judge found that there was a risk of harm, namely, the risk of tensile failure in the cables involved in the erection of a mast on the pile driving rig, or the risk of explosive failure arising from tension in the cables involved in the erection of a mast on the pile driving rig. These risks were not insignificant for the purposes of s 5B(1)(b) of the Civil Liability Act. Accordingly, it was foreseeable that the auxiliary hoist cable could snap when employees of Avopiling were erecting a mast on the pile driving rig.

15. Applying the considerations in s 5B(2) of the Civil Liability Act, the primary judge found that a reasonable person in the position of Avopiling would have ensured sufficient slack in the auxiliary cable prior to or during the course of erecting the mast of the pile driving rig and also continuously observed the cables. Further, the likely seriousness of the harm was found to be extreme, while the burden of taking the identified precautions was minimal. His Honour therefore found that in failing to take such precautions Avopiling, through its employees, was negligent. No challenge was made to these findings on appeal.

16. On the issue of contributory negligence, Avopiling alleged that Mr Bosevski was guilty of contributory negligence essentially because: he failed to avoid the area where the pile driving rig was being erected; he stood in the vicinity of the pile driving rig when it was being erected; and, he failed to stand a safe distance away from the pile driving rig whilst it was being erected.

17. His Honour found that Mr Bosevski was not negligent by being in the area and in standing in the vicinity of the pile driving rig during its erection. His Honour found, based on evidence including photographs of the objects thrown from the pile driver, that it was more probable than not that Mr Bosevski was more than six metres away from the pile driving rig when injured. His Honour found that Mr Bosevski and his supervisor were in the vicinity of the pile driving rig because they were constructing a concrete pad, and that the two employees of Avopiling who were erecting the mast of the pile driving rig were aware of their presence. The presence of Mr Bosevski and his supervisor in the vicinity of the pile driver did not exceed their functions on the work site because one of their functions was to assist the pile driving rig operators generally. After being told by one of the operators that their assistance was not needed, it was more probable than not, his Honour found, that Mr Bosevski was departing the scene when he was injured. It followed, his Honour concluded, that Mr Bosevski’s presence in the vicinity of the pile driver was appropriate and reasonable and he acted reasonably in moving from the pile driver when his assistance was not needed. Accordingly, contributory negligence was not established under ss 5R and 5S of the Civil Liability Act.

18. In making this finding his Honour drew a Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 inference from the failure of Avopiling to call either of the pile driving rig operators to give evidence.

19. His Honour rejected claims made by Avopiling that a person in Mr Bosevski’s position ought to have known of the dangers associated with the erection of the mast. The site induction given to Mr Bosevski did not identify such dangers.

20. On the issue of negligence by the employer, it will be recalled that the pleaded case against Professional Contracting was limited to an allegation that “[Avopiling] repeats and relies upon the particulars of negligence alleged in the Amended Statement of Claim”. The claim essentially advanced by Avopiling at the trial was that Professional Contracting knew or ought to have known of the dangers of erecting the mast on the pile driving rig and was negligent by permitting Mr Bosevski to approach the pile driving rig whilst it was being erected. The primary judge found that Professional Contracting was not in a position to know of the risk of danger for the purposes of negligence. Applying Shoalhaven City Council v Humphries [2013] NSWCA 390 at [127]-[131], his Honour found that Professional Contracting could not have foreseen an accident of such magnitude in relation to the erection of the mast.

21. In relation to damages, his Honour’s findings were based on the significant injuries he found were suffered by Mr Bosevski to his head, neck, lower back, jaw and teeth. In particular, the primary judge accepted that Mr Bosevski suffered a severe traumatic brain injury, multiple fractures in the frontal regions of the skull and post traumatic amnesia: at [325]. The traumatic brain injury caused permanent cognitive and personality changes, including adjustment mood disorder. The primary judge accepted the expert psychiatrists’ agreed opinion that as a consequence of his permanent impairments Mr Bosevski was “unlikely to have any earning capacity”: at [331]. The primary judge found that Mr Bosevski was, as a result of his injuries, “for practical purposes, unemployable”: at [354].

22. Mr Bosevski was 45 years of age at the date of the accident and would have continued to work in his current position until aged 62. Thereafter, until the age of 67, Mr Bosevski would have worked in a position which was calculated on the basis of the earnings of a taxi driver (which, ironically, was an occupation suggested by Avopiling in cross-examination of Mr Bosevski as being available to him at the time of trial). Mr Bosevski’s life expectancy was identified as 76 years and six months. It was common ground on the appeal that this was an error and that Mr Bosevski’s agreed life expectancy is 85.6 years. The reasons for that error were explained in Bosevski v Avopiling Pty Ltd; The Workers Compensation Nominal Insurer v Avopiling Pty Ltd (No 2) [2018] NSWSC 205 at [3]-[5], [23].

23. Mr Bosevski’s past economic loss was calculated on the basis of various identified amounts totalling $402,206.84 net, after tax.

24. Mr Bosevski was awarded an amount of $33,261.60 to compensate for the refund of gross workers compensation payments upon which tax had been paid: Fox v Wood (1981) 148 CLR 438; [1981] HCA 41.

25. In relation to loss of future earning capacity, Mr Bosevski was awarded $306,409.09, including a 15 per cent reduction for vicissitudes.

26. In the primary judgment, Mr Bosevski was awarded $163,317 for out-of-pocket expenses, although the schedule of damages from 3 May 2017 on which the ultimate award of damages was based (which is substantially reproduced in table format below at [83]) records out-of-pocket expenses as $181,358.51. This discrepancy was not the subject of any argument on appeal either orally or in written submissions, although it may reflect further such expenses being incurred by Mr Bosevski during the period judgment was reserved.

27. Compensation was awarded for the loss of superannuation at a rate of 11 per cent on past economic loss, amounting to $44,682.75, and 12 per cent on future economic loss, amounting to $36,769.09, for a total of $81,451.84.

28. In relation to future medical expenses, the primary judge made a total allowance of $138,380.70 comprised of the following. Mr Bosevski was awarded a sum of $87,810.59 for medication and visits to pain specialists, neurologists, general practitioners and psychiatrists. Mr Bosevski has a nerve stimulator device and the primary judge accepted evidence that the device ameliorates the pain suffered by Mr Bosevski, and allowed $31,570.11 for the ongoing maintenance, programming, removal and periodic replacement of the device. Finally, the primary judge made allowances of $9,000 for future travel to doctors, investigations and therapy including physiotherapy, hydrotherapy, rehabilitation and massage and $10,000 for future dental treatment.

29. An allowance was made for past gratuitous domestic and attendant care and future domestic services and attendant care. For past gratuitous domestic care the primary judge made an allowance of $294,403.20. For future domestic services and attendant care the primary judge made an allowance of $778,254.75 using a commercial hourly rate of $45.50. In making these allowances his Honour accepted evidence from an occupational therapist, Ms Kennedy-Gould, who estimated that an initial period of four hours per day of past gratuitous care was appropriate until 10 April 2007 and thereafter and into the future three hours care per day was appropriate. Dr Jungfer, a psychiatrist from whom evidence was also adduced, concurred in those opinions. The evidence of Ms Kennedy-Gould was not contested nor the subject of cross-examination.

30. His Honour allowed a claim for the expenses of lawn mowing and gardening on average at one hour per week at the rate of $45.00 per hour during Mr Bosevski’s life expectancy and, likewise, handyman assistance on average at 24 hours per annum or 0.46 hours per week at the rate of $70 per hour for the whole of Mr Bosevski’s life expectancy. The total sum allowed for these services was $62,879.40.

31. The total award of damages was $2,615,605.93. With the addition of interest in the sum of $16,785 calculated pursuant to s 18 of the Civil Liability Act, the sum awarded was $2,632,390.93.

Grounds of Appeal

32. The notice of appeal contained eight grounds. These can be grouped into the following categories. First, Avopiling raised a number of liability issues. Namely, it submitted that his Honour erred in his findings concerning Professional Contracting’s alleged negligence (grounds 1 and 5), Mr Bosevski’s alleged contributory negligence (ground 6), and his Honour’s formulation of the risk of harm for the purposes of s 5B of the Civil Liability Act (ground 2). Secondly, Avopiling challenged certain factual findings concerning the distance of Mr Bosevski from the pile driving rig when he was injured (ground 3) and the purpose for which Mr Bosevski was in the vicinity of the pile driving rig (ground 4). Thirdly, Avopiling challenged the primary judge’s assessment of damages (ground 7). Finally, Avopiling submitted that his Honour erred in not apportioning liability between it and the Workers Compensation Nominal Insurer (ground 8).

Liability Issues

33. As Avopiling complained that the primary judge incorrectly identified the risk of harm for the purpose of its claims against Professional Contracting in negligence and Mr Bosevski in contributory negligence it is appropriate to commence with that ground.

Ground 2 – appellant’s submissions

34. In its written submissions, Avopiling submitted that the formulation of the risk of harm as the risk of tension failure of the secondary cable in the erection of the pile driving rig was “unreasonably specific” and impermissibly formulated by reference to the precise harm suffered by Mr Bosevski. Instead, Avopiling submitted, the risk of harm should have been formulated as the “risk of objects falling or being flung from the pile driving rig during the erection process”.

35. In oral address senior counsel for Avopiling put the risk of harm differently. It was submitted that the “risk of harm was that a person might sustain injury by reason of an unexpected hazard from objects falling or being flung from a pile driving rig during the erecting process”. The risk of harm, thus formulated, was said to apply both to the claim against Professional Contracting in negligence and the claim of contributory negligence against Mr Bosevski.

36. It was submitted that while the formulation of risk must encompass the precise set of circumstances which occurred, it should not be confined to those circumstances: Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752; [2015] NSWCA 320 at [118]; Port Macquarie Hastings Council v Mooney [2014] NSWCA 156; (2014) 201 LGERA 314 at [67].

Ground 2 – consideration

37. Whilst under s 5B of the Civil Liability Act it is necessary, just as it was under the pre-existing general law, to identify the relevant “risk of harm” (see Port Macquarie Hastings Council v Mooney at [52]) at the outset it is necessary to frame the issues in this case by application of the correct legal test. It was common ground that the Civil Liability Act applied to Avopiling’s claim that Mr Bosevski was guilty of contributory negligence pursuant to ss 5S-5T of the Civil Liability Act. However, as Avopiling ultimately accepted in its reply submissions, the question of Professional Contracting’s negligence was governed by common law principles and not the Civil Liability Act because of the operation of s 151E(1) of the Workers Compensation Act and s 3B(1)(f) of the Civil Liability Act: see South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8 at [115], (Basten JA, Macfarlan and Simpson JJA agreeing).

38. Section 151E(1) of the Workers Compensation Act provides:

“151E Application - modified common law damages

(1) This Division applies to an award of damages in respect of:

(a) an injury to a worker…

being an injury caused by the negligence or other tort of the worker’s employer.”

39. Section 3B(1)(f) of the Civil Liability Act provides:

“3B - Civil liability excluded from Act

(1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows:

…

(f) civil liability relating to an award to which Division 3 of Part 5 of the Workers Compensation Act 1987 applies – the whole Act…”

40. This complaint by Avopiling faces a problem at the outset. The primary judge’s formulation of the risk of harm was the same for Mr Bosevski’s claim of negligence against Avopiling, Avopiling’s contributory negligence claim against Mr Bosevski and Avopiling’s claim in its defence in the negligence proceedings when seeking a reduction of any damages by reason of s 151Z(2) of the Workers Compensation Act that Professional Contracting was negligent. Avopiling does not challenge the primary judge’s formulation of the risk of harm in relation to its own negligence. Avopiling’s acceptance of the way the primary judge formulated the risk of harm in the case against it directs attention to the way the matter was presented to the primary judge in the claims made by Avopiling in its defence that Professional Contracting was negligent and Mr Bosevski was guilty of contributory negligence.

41. Avopiling bore the onus of proof, including the identification of the correct risk of harm, to establish negligence in relation to Professional Contracting and against Mr Bosevski for his alleged contributory negligence. The party in default who has failed to frame the pleadings by specific reference to relevant provisions of the Civil Liability Act (as explained in Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 at [22] per Meagher JA) is here Avopiling.

42. The risk of harm Avopiling now seeks to rely upon was not pleaded by it in its defences (to either the negligence or the indemnity claims) or its first amended cross-claim. It will be recalled that in relation to the allegation in its defence that Professional Contracting was negligent, Avopiling merely repeated and relied upon the particulars of negligence alleged by Mr Bosevski in the amended statement of claim. The pleading in the defence of contributory negligence against Mr Bosevski did not identify any alleged risk of harm. The consequence of the application of the principles of specific pleading of the risk of harm relied upon by Avopiling is that ground 2 would be dismissed for that reason alone.

43. In any event, the primary judge’s formulation of the risk of harm was not in error. It identified the “true source of potential injury” (Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [60]) and the “general causal mechanism of the injury sustained” (Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1;[2015] NSWCA 90 at [98]).

44. Neither of Avopiling’s alternative risk formulations allowed for the proper identification of the likelihood of the risk eventuating nor the reasonableness of precautions that might be taken against it because the formulations did not indicate the mechanism by which objects might fall or be flung. To identify the “true source of potential injury” the court must determine the mechanism by which an object might become detached rather than, as Avopiling has formulated the risk of harm, an undefined course of an unexpected hazard falling without identification of a mechanism.

45. It has not been demonstrated that his Honour erred in identifying the risk of harm. There is no challenge to his identification of the risk of harm in his Honour’s finding that Avopiling was negligent. The attempt to establish a different risk of harm for the claim of negligence in relation to Professional Contracting and the contributory negligence claim against Mr Bosevski fails.

46. Ground 2 should be rejected.

Grounds 1 and 5 – appellant’s submissions

47. Grounds 1 and 5 essentially concern the issue of whether Professional Contracting was negligent.

48. Avopiling submitted that his Honour’s finding that Professional Contracting did not have the requisite knowledge of the dangers of the pile driving rig to amount to negligence was inconsistent with the finding that the risk of cable failure was “ever-present”: at [285]. Secondly, Avopiling submitted that it was established that Professional Contracting had the requisite knowledge because expert evidence had been adduced demonstrating that the “relevant risks” were well known in the construction industry. Thirdly, Avopiling submitted that Professional Contracting, as an employer, should not have permitted Mr Bosevski to be in the vicinity of the pile driving rig even if it had not foreseen the precise mechanism of injury: Shaw v Thomas [2010] NSWCA 169 at [43]. Fourthly, Avopiling submitted that his Honour did not consider evidence which was submitted to be relevant to the issue of Professional Contracting’s negligence.

Grounds 1 and 5 - consideration

49. The starting point for consideration of these grounds of appeal is the primary judge’s unchallenged finding of negligence by Avopiling. That finding had at its heart negligent acts committed by Avopiling’s employees in the erection of the mast and the failure to investigate tension noises during that process. Avopiling did not challenge the finding of the primary judge (at [263]) that “…the operators of the [pile driving rig], who were involved in its erection, were trained or instructed to ensure that only those who were involved in the work directly were to be in the area”.

50. On this question of whether Mr Bosevski was a person “involved in the work directly”, the statement given by Mr Edwards, one of the pile driving rig operators, was significant. In his statement to WorkCover he said that:

“Anybody who has nothing to do with assembling the machine must stay well away. Chris [the name used by Mr Edwards for Mr Bosevski] and Lou were down there because we needed a pad. They were down there instructing their excavator on the pad they needed to build inside the yard. Safe enough for the rig to walk inside the yard safely.”

51. Mr Edwards was not called to give evidence at the trial. His statement, which was admitted in evidence at the trial, supports the finding of the primary judge that Mr Bosevski and his supervisor were acting within the scope of their duties by approaching the pile driving rig and enquiring whether their assistance was necessary. Although the evidence on this was sparse, and a good deal of it confusing (particularly regarding whether the concrete pad referred to by Mr Edwards was one required to be built for the pile driving rig on the oval where the mast was being erected or in the yard some distance away), Avopiling, through Mr Edwards, in this passage identified a proper purpose connected with their employment for Mr Bosevski and his supervisor to be present at the site of the assembly of the pile driving rig, namely because “we needed a pad”.

51. Even on appeal there was confusion about whether the concrete pad required to be built for the pile driving rig was to be constructed on the oval where the mast was being erected or in the yard some distance away. Senior counsel for Avopiling first submitted that it was the excavator and not the mast and drill which needed a concrete pad to be built. That was clarified as being a submission that another machine required a pad, which was to be built inside the yard and not on the oval where the mast was being erected. It was explained that the mast, once erected, would be used to start drilling from the oval, it being impossible to return to the yard due to overhead wires. The other machine would be brought on to the oval for this purpose. The question of whether a concrete pad was also required to drill from the oval was taken on notice over an adjournment. After the adjournment senior counsel for Avopiling submitted that the evidence was unclear as to whether drilling was planned to take place on the oval or in the yard, and thus where the concrete pad was to be built.

52. Any confusion in the evidence about where the pad was to be constructed does not assist Avopiling, which bore the onus of proving Professional Contracting’s negligence for the purposes of its s 151Z(2) claim.

53. The allegation that Professional Contracting was negligent also needs to be understood in light of the primary judge’s unchallenged finding that (at [278]):

“…if the employer were to have asked [the appellant] of the process it would undertake in erecting the pile driver, it would have been told, relevantly, that the auxiliary cable would be given sufficient slack and that an offsider would be observing continuously or constantly whether there were circumstances that would give rise to tension in either the auxiliary cable or main cable. In those circumstances, the employer would rightly have been satisfied that the system of work was adequate.”

55. The primary judge’s finding that the risk of tension failure was “ever-present” was not inconsistent with his Honour’s finding that Professional Contracting lacked the requisite knowledge to be negligent. Professional Contracting did not know of the ever-present risk. There was no inconsistency because the former finding related to foreseeability generally, and the latter to whether Avopiling had established that Professional Contracting knew of the risk of harm. No error has been shown in that finding.

56. Avopiling’s submission that the primary judge erred in failing to take into account relevant evidence should also be rejected. Fundamentally, the primary judge was correct to conclude that Professional Contracting did not know and did not have any reason to have known that it was dangerous for its employees to be anywhere near the construction of the pile driver.

57. It was not demonstrated that Mr Bosevski or his supervisor could appreciate the risk of tension failure on the pile driving rig simply by looking for hazards. It was not shown that they ought to have known of the risk. Similarly, it was not proven that the site induction given to Mr Bosevski by Professional Contracting was inadequate. Avopiling did not prove that Professional Contracting knew or ought to have known of the risks involved in assembling a pile driving rig. Avopiling’s submission that the primary judge failed to take into account evidence elicited from Mr Bosevski also takes the matter no further. Mr Bosevski, at the time of the trial, was found to be suffering post-traumatic amnesia and could not recall the circumstances of his injury. A fair summary of the evidence was that Mr Bosevski had no memory whatsoever of the relevant events and was unaware of the risk of harm identified by the primary judge.

58. The expert evidence relied upon by Avopiling takes the matter no further. That evidence was addressing the things Avopiling could or should have done in response to the risk of harm, not what Professional Contracting knew or should have known about the risk of harm or what it should have done in response to that risk.

59. To the extent that Avopiling complained that Professional Contracting employees had no authorisation to be in the area where the pile driving rig was being constructed, as I have said, Mr Edwards’ statement asserted that Mr Bosevski and his supervisor were in the vicinity of the assembling of the pile driving rig due to the need for a concrete pad to be constructed for the operation of the pile driving rig. His Honour was correct to give that statement weight. To assert as Avopiling does that “[Professional Contracting] permitted the [first] respondent to be within the vicinity of the pile driving rig” takes the matter no further in the face of this statement from an Avopiling employee that Mr Bosevski was properly present at the scene for a work-related purpose.

60. To the extent that Avopiling relied upon an allegedly deficient Safe Work Method Statement prepared by Professional Contracting, the issue of whether Professional Contracting was negligent in failing to correctly prepare the document was not pleaded or subject to evidence at trial. In any event, the allegedly deficient Safe Work Method Statement prepared by Professional Contracting was submitted to Avopiling and reviewed by its employee, Martin Lavisch (who was not called), without comment.

61. Finally, there was some evidence at the trial of an Australian Standard, part of the AS 2550 series, about the erection and commissioning of machinery, which appears to provide for a default exclusion zone of two metres from the erection of machinery. Although the relevant Australian Standard was not in evidence, it was referred to by the experts, Messrs O’Brien and Montgomery, who opined that “if the person was standing more than two metres away we consider that the risk would be low and would rapidly diminish with distance”. As I have concluded at [71]-[75] below, Avopiling failed to prove where Mr Bosevski was standing at the time he was injured. This matter provides additional support for the proposition that Avopiling failed to prove that Professional Contracting was negligent.

62. It follows that it has not been demonstrated that his Honour erred in concluding that Professional Contracting was not negligent. Grounds 1 and 5 should be rejected.

Ground 6 – appellant’s submissions

63. Avopiling submitted that the primary judge erred in not making a finding of contributory negligence by Mr Bosevski. Avopiling submitted that the finding that it was more probable than not that Mr Bosevski was struck while departing the site was erroneous because his Honour did not identify any evidentiary basis for feeling actual persuasion that the particular fact was so: Brown v New South Wales Trustee and Guardian [2012] NSWCA 431 at [52]. As this finding was erroneous, the inferences which the primary judge subsequently drew from the finding, namely that the operators knew that Mr Bosevski was in the vicinity of the rig and that if the operators had waited until Mr Bosevski had departed the accident would have been avoided, were similarly erroneous .

64. Avopiling also contested the primary judge’s finding that Mr Bosevski did not disregard his own safety and that he had acted reasonably. Avopiling submitted that it was not open on the evidence for the primary judge to find that it was more probable than not that Mr Bosevski was moving away from the rig at the time he was struck because it was just as likely that he was standing in position at that time based on the evidence of the operators of the pile driving rig. The Jones v Dunkel inference which his Honour drew from the failure to call the operators to give evidence, Avopiling submitted, did not precisely identify the actual inference his Honour drew: Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 at [167]-[170] and [250]-[270].

65. Avopiling submitted that the primary judge erred in finding that a person in Mr Bosevski’s position would not have known of the dangers involved in the erection of the pile driving rig. Avopiling submitted that this finding ignored evidence adduced in cross-examination as to Mr Bosevski’s expertise and knowledge of the risks of standing near a pile driving rig.

Ground 6 - consideration

66. Avopiling bore the onus of establishing contributory negligence (Joslyn v Berryman (2003) 214 CLR 552 at 559; [2003] HCA 34; Ghunaim v Bart [2004] NSWCA 28; Aust Torts Rep 81-731 at [55]). It failed to prove its case on the balance of probabilities. Mr Bosevski was plainly in a zone of danger when he was struck. Avopiling’s case was that he should not have been in that zone and that by being there he was guilty of contributory negligence. Avopiling did not demonstrate that it mattered, to the case of the contributory negligence it had pleaded, whether or not Mr Bosevski was injured when he was standing behind the operator of the pile driver as it was being erected or whether he was injured as he was moving away from the pile driver.

67. The evidence of the two operators of the rig contained in their statements to the WorkCover inspector, particularly Mr Edwards’ statement, provided support for the primary judge’s finding that Mr Bosevski had a legitimate reason for being in the zone around the pile driving rig when he was injured. It was open to the primary judge to draw a Jones v Dunkel inference from the failure of Avopiling to call the two operators, they being the only two people apart from Mr Bosevski and Mr Carpinato, Mr Bosevski’s supervisor, who could give evidence about the moment of injury. They could also have given evidence as to where Mr Bosevski was when the auxiliary cable snapped. The Jones v Dunkel inference his Honour drew was simply that calling Mr Edwards and Mr Tangi to give evidence would not have assisted Avopiling’s case. Given the clear inference available from Mr Edwards’ statement, that inference was correctly drawn.

68. The primary judge was correct to conclude that Avopiling had not proved that Mr Bosevski knew or ought to have known of the risk of tension failure or the hazards involved in erecting the pile driving rig. The evidence cited by Avopiling as to Mr Bosevski’s expertise and knowledge of the risks of standing near a rig did not support any such finding of knowledge. The evidence relied upon was at a most general level about the operation of machinery and was predicated on the explicit assertion made by Avopiling’s counsel in the questions asked that Mr Bosevski had no business being anywhere near the pile driving rig at the relevant time. Mr Edwards’ statement falsified that assertion.

69. The primary judge did not err in failing to make a finding of contributory negligence by Mr Bosevski. Ground 6 should be rejected.

Factual Issues

Ground 3 – appellant’s submissions

70. Avopiling submitted that the primary judge erred in finding that it was more probable than not that Mr Bosevski was located more than six metres from the pile driving rig and not some two metres away when he was struck. Avopiling submitted that this finding was erroneous because it appeared to be based solely and impermissibly on the primary judge’s construction of the photographs of the objects that were thrown from the pile driver, as this was the only “material before the Court” identified by his Honour: Blacktown City Council v Hocking [2008] NSWCA 144; Aust Torts Rep 81-956 at [167]-[170]. It was submitted that in making the finding the primary judge rejected the evidence of experts who inferred that Mr Bosevski was within two metres of the pile driving rig.

Ground 3 – consideration

71. Avopiling did not demonstrate that this factual finding had any role to play in the case it sought to prove. Avopiling did not identify an alternative factual finding it contended for in relation to the distance of Mr Bosevski from the pile driving rig at the time he was struck. If it were relevant, the onus lay on Avopiling to establish the relevant distance in order to found its claim of negligence by Professional Contracting or contributory negligence by Mr Bosevski: Shoalhaven at [4] and [104].

72. Avopiling’s characterisation of the expert evidence it cited to support its claim that Mr Bosevski was less than two metres from the rig when injured should be rejected. In the joint report the experts stated:

“Some aspects of the accident we do not know for sure. These include: (i) The location and orientation of [the plaintiff] at the time the wire rope snapped and the precise distance from him to the base of the drilling mast…”

73. When this issue was addressed by the experts in joint oral evidence they did not contradict this passage. One of the experts, Mr O’Brien, gave uncontradicted evidence to the effect that the experts did not know of the distance between Mr Bosevski and the pile driving rig.

74. The principle in Blatch v Archer (1774) 1 Cowp 63; (1774) 98 ER 969 that where material evidence is peculiarly within a party’s knowledge, it may be sufficient for the opposing party to adduce slight evidence of a matter in issue, was correctly applied by the primary judge. This was because Avopiling failed to call the two operators of the rig who were at the scene of the accident in circumstances where one operator, Mr Edwards, had given evidence in a statement to WorkCover that he saw Mr Bosevski when he was injured.

75. It has neither been demonstrated that his Honour erred in finding that it was more probable than not that Mr Bosevski was located more than six metres from the pile driving rig and not some two metres away, nor that it mattered. Ground 3 should be rejected.

Ground 4 – appellant’s submissions

76. Avopiling submitted that the primary judge erred in finding that Mr Bosevski was in the vicinity of the pile driving rig for a purpose associated with his employment because the finding was not based on the evidence. Avopiling submitted that Mr Bosevski and his supervisor, Mr Carpinato, had minimal work that day and decided to watch the assembly of the pile driving rig.

77. Avopiling submitted that Mr Bosevski gave evidence that he did not have any role to play in the erection of the rig. It was submitted that the concrete pad (which did involve Mr Bosevski’s employment) was being constructed elsewhere on the Cringila site. It was submitted that the approach of Mr Bosevski and his supervisor and subsequent offer of assistance was not required or expected. Finally, it was submitted that one of the operators of the pile driver was not aware of the location of Mr Bosevski and his supervisor at the time of the erection of the rig.

Ground 4 – consideration

78. This ground has already essentially been addressed when considering grounds 1 and 5 above.

79. There was a clear basis from the statement made by Avopiling’s employee, Mr Edwards, for the conclusion that Mr Bosevski was in the vicinity for a reason connected to his employment – namely, because he was tasked with constructing a concrete pad to be used in the operation of the pile driving rig and it was also envisaged that he would do other tasks related to the drilling. Mr Bosevski’s evidence that he had no role in the erection of the pile driving rig and that there was no request for him to assist in the erection of the pile driving rig takes the matter no further. It is clear that Mr Bosevski had no memory of the relevant events as a result of the accident and, in any event, he was not cross-examined about building the pad for the pile driving rig or for any other piece of machinery. Mr Edwards’ statement, which was not challenged, provided an explanation for why Mr Bosevski was where he was at the time he was injured. Avopiling, who bore the onus on this issue, failed to prove that Mr Bosevski had no reason to be in the vicinity of the rig.

80. Further, Avopiling’s submission that “one of the operators of the pile driver was not aware of the location of the respondent and his supervisor at the time of the erection of the rig” does not avail Avopiling in circumstances where Mr Edwards, as the primary judge found, had spoken to the plaintiff during the erection process. As I have earlier found, any confusion in the evidence (and there was confusion) about where the pad was to be constructed compared to where the pile driving rig was being assembled does not assist Avopiling who bore the onus on this question.

81. It follows that it has not been demonstrated that the primary judge erred in finding that Mr Bosevski was in the vicinity of the pile driving rig for a purpose associated with his employment. Ground 4 should be rejected.

Ground 8 - consideration

82. Having failed in its claim that Professional Contracting was negligent, Avopiling’s complaints about apportionment of liability or indemnity under s 151Z of the Workers Compensation Act do not arise.

Damages Issues

Ground 7

83. A schedule of damages made as an order by Rothman J dated 3 May 2017 provided as follows:

HEADS OF DAMAGE AND CALCULATIONS	SUB-TOTALS	TOTALS
Non-economic loss
55% of a most extreme case	$333,000.00
Past economic loss
$660.00 npw from 22/09/06 to 30/06/08 = $660.00 x 92 weeks =	$60,720.00
$660.00 npw x 104.5% (increase for CPI as at 01/07/08 = $689.70 npw for 52 weeks from 01/07/08 to 30/06/09 = $689.70 x 52 weeks =	$35,864.40
$689.70 npw x 101.5% (increase for CPI as at 01/07/09) = $700.04 npw for 52 weeks from:
01/07/09 to 30/06/10 $700.04 x 52 weeks =	$36,402.08
01/07/10 to 30/06/11 $721.74 x 52 =	$37,530.48
01/07/11 to 30/06/12 $747.72 x 52 =	$38,881.44
01/07/12 to 30/06/13 $756.69 x 52 =	$39,347.88
01/07/2013 to 30/06/14 $774.85 x 52 =	$40,292.20
01/07/14 to 30/06/15 $798.09 x 52 =	$41,500.68
01/07/2015 to 30/06/16 $810.06 x 52 =	$42,123.12
01/07/2016 to 19/04/17 $818.16 x 41 =	$33,544.56
TOTAL	$406,206.84
Fox v Wood	$33,261.60
Out-of-pocket expenses
As particularised in Second Amended Statement of Particulars filed 11 February 2015	$181,358.51
Future economic loss
Loss of earnings at $818.16 npw to age 67 years = $818.16 npw x 440.6 less 15% for vicissitudes	$306,409.09
Loss of superannuation
11% on PEL	$44,682.75
12% on FEL	$36,769.09
TOTAL	$81,451.84
Future medical and related expenses
Medication @ $80 pw = $80 pw x 814.5 =	$65,160.00
Pain specialist @ $300 once per annum = $5.76 pw x 814.5 =	$4,691.52
Neurologist @ $300 once every 4 years = $1.44 pw x 814.5 =	$1,172.88
GP @ $50 x 6 per year = $5.76 pw x 814.5 =	$4,691.52
Psychiatrist: First 5 years: 6 visits per annum at $250 per visit = $28.84 pw x 231.5 = $6,676.46 6 to 10 years: 4 visits per annum at $250 per visit = $19.23 pw x 231.5 = $4,451.74 Deferred for 5 years = $4,451.74 x 0.784 = $3,490.16 11 years to 29.4 years: 1 visit per annum at $250 per visit = $4.80 pw x 654.2 = $3,140.16 Deferred for 10 years = $3,140.16 x 0.614 = $1,928.05
TOTAL	$12,094.67
Nerve stimulator device costs Maintenance and programming on average twice per year at $550 each time = $21.15 per week x 839.4 = $17,753.31 Replacement (removal and implant) of nerve stimulator device and maintenance (required every 10 to 15 years – say twice during life expectancy) 1st replacement = $15,200.00 say in 10 years (current device implanted 18/08/2009) = $15,200 x 0.614 (deferral multiplier for 10 years on 5% tables) = $9,332.80 2nd replacement = $15,200 say in 25 years (ie 15 years after 1st replacement) = $15,200.00 x 0.295 (deferral multiplier for 25 years on 5% tables) = $4,484.00
Total = $17,753.31 + $9,332.80 + $4,484.00 =	$31,570.11
Future travel to doctors, for investigations and therapy – physiotherapy, hydrotherapy, rehabilitation, massage and other therapy	$9,000.00
Dental treatment	$10,000.00
TOTAL	$138,380.70
Past gratuitous domestic and attendant care
11/10/06 to 10/04/07 for 28 hours per week @ $22.50 ph = $22.50 x 28 x 26 weeks =	$16,380.00
11/04/07 to 13/04/15 for 21 hours per week @ $25.46 ph = $25.46 ph x 21 x 416 weeks =	$222,418.56
14/04/15 to 19/04/17 for 21 hours per week @ $25.46 ph = $25.46 ph x 21 x 104 =	$55,604.64
TOTAL	$294,403.20
Future domestic services and attendant care
21 hours per week during life expectancy at $45.50 ph = $45.50 x 21 x 814.5 =	$778,254.75
Future lawn mowing, gardening and home maintenance
Lawn mowing and gardening on average 1 hour per week @ $45 ph during life expectancy = $45 x 814.5 =	$36,652.50
Handyman assistance on average 6 hours every 3 months or 0.46 hpw @ $70 ph = $70 x 0.46 x 814.5 =	$26,226.90
TOTAL	$62,879.40
GRAND TOTAL	$2,615,605.93

84. In its original notice of appeal, Avopiling challenged his Honour’s assessment of damages under the following heads:

1. past economic loss;

2. future economic loss;

3. past and future loss of superannuation;

4. Fox v Wood;

5. future treatment expenses;

6. past gratuitous domestic and attendant care; and

7. future gratuitous domestic and attendant care, lawn mowing, gardening and handyman assistance.

85. In filing the amended notices of appeal it was conceded by senior counsel for Avopiling orally that no challenge lay in respect of the Fox v Wood award and that issue may therefore be put to the side.

86. It was common ground, at least to some limited extent, that the primary judge’s orders concerning damages needed adjustment. Counsel for Avopiling handed to the Court a schedule outlining the changes it sought to the orders made by the primary judge in respect of each head of damage in issue.

Past economic loss

Submissions

87. The essence of Avopiling’s challenge to the award of damages for past economic loss was that deductions should be made for a pre-existing shoulder injury suffered by Mr Bosevski which, it was submitted, would have required time off work for treatment in any event. Further deductions were identified for various overseas trips taken by Mr Bosevski which it was submitted would have occurred in any event and would, in the absence of the injury he suffered, have led to periods where he was not in receipt of an income.

88. Avopiling also submitted that the primary judge erred by not having regard to a range of evidence including, inter alia, evidence from Mr Bosevksi’s treating orthopaedic specialist and allegedly inconsistent evidence from Mr Bosevski himself about the effect of his pre-existing injuries.

89. Regarding the primary judge’s allowance for a sum of $60,720 comprising $660 per week for the period 22 September 2006 to 30 June 2008, Avopiling submitted that two deductions of $5,280 each should be made in respect of surgeries on 31 October 2006 (and convalescence of two months) and 2 April 2008 (and convalescence of two months) for Mr Bosevski’s right shoulder injury.

90. Regarding the primary judge’s allowance for a sum of $35,864 comprising $689.70 per week for the period 1 July 2008 to 30 June 2009, Avopiling submitted that three deductions should be made. First, a deduction of $13,794 in respect of the remaining five months of convalescence following the 2 April 2008 surgery. Secondly, a deduction of $2,758.80 in respect of surgery on 2 June 2009 (and convalescence of four weeks) for thyroid cancer. Thirdly, a deduction of $4,827.90 in respect of Mr Bosevski being overseas for a total period of seven weeks and one day.

91. Regarding the primary judge’s allowance for a sum of $36,402.08 comprising $700.04 per week for the period 1 July 2009 to 30 June 2010, Avopiling submitted that two deductions should be made. First, a deduction of $700.04 in respect of one week of radiation treatment for thyroid cancer in August 2009. Secondly, a deduction of $7,000.04 in respect of Mr Bosevski being overseas for nine weeks and five days from 6 December 2009 to 12 February 2010.

92. The total sum of the deductions sought by Avopiling was $39,940.78, resulting in a total allowance for past economic loss of $362,266.06 rather than the primary judge’s allowance of $402,206.84.

Consideration

93. It was common ground that one month needed to be deducted for the thyroid operation comprising $2,758. To that should be added a deduction of $700.04 in respect of one week of radiation therapy for thyroid cancer in August 2009, being a total of $3,458.04.

94. The most significant component of past economic loss which was in dispute related to the impact of Mr Bosevski’s pre-existing shoulder injury. It was common ground that Avopiling bore the onus of demonstrating that, absent the injury caused by its negligence, Mr Bosevski would nevertheless have lost income by reason of the shoulder injury. On this issue, Avopiling did not establish how the pre-existing shoulder injury impaired Mr Bosevski’s ability to perform his duties to his employer. Rather, the evidence addressed only his ability to perform duties as a “labourer”. The expert evidence cited by Avopiling was to the general effect that the pre-existing injury would have affected Mr Bosevski’s continued employment. That evidence lacked any precision about when and to what extent any aggravation would have impacted Mr Bosevski’s earning capacity. The evidence given by Mr Bosevski relied upon by Avopiling does not lead to any different conclusion. Mr Bosevski’s evidence established that the shoulder complaint he suffered from did not lead him to fail to complete the actual duties he performed for his employer. Avopiling failed to demonstrate any error in the primary judge’s conclusions on this aspect of the damages award.

95. As for the remaining issues, Avopiling’s submission concerning Mr Bosevski’s overseas trips leads to no different outcome. There was no evidence as to what Mr Bosevski would have done had he continued in his employment absent Avopiling’s negligence or whether, if he had decided to travel but for the injury, those trips would have fallen within Mr Bosevski’s leave entitlements. Avopiling’s references to industry closures and periods of unemployment likewise did not refer to any evidence. With the exception of the agreed adjustment of $3,458.04 for the thyroid operation, Avopiling’s attack on the award of damages for past economic loss fails.

Future earning capacity

Appellant’s submissions

96. Regarding future earning capacity, Avopiling submitted that the primary judge did not consider all the evidence concerning Mr Bosevski’s pre-existing and subsequent injuries that would have reduced his future earning capacity: Amoud v Al Batat [2009] NSWCA 333; (2009) 54 MVR 167 at [22]-[28]. Avopiling submitted that Mr Bosevski did not adduce evidence concerning his ability to work, absent the 22 September 2006 injury, but taking into account the pre-existing right shoulder injury. In contrast, Avopiling had adduced evidence that Mr Bosevski could work in non-labouring jobs such as a taxi driver. Finally, Avopiling submitted that the primary judge erred by only applying a 15 per cent discount for vicissitudes because that discount did not take into account the extent of the challenges Mr Bosevski would have faced in any event, had he not been injured by its negligence.

97. It was submitted that if the Court found that Avopiling failed to discharge its onus regarding Mr Bosevski’s incapacity for work as a result of injuries other than those caused by Avopiling’s negligence, then the deduction for vicissitudes in respect of future economic loss should nevertheless have been increased beyond 15 per cent at a minimum in order to take into account the contingencies raised by Avopiling: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20.

98. Regarding the primary judge’s allowance for future economic loss of a sum of $306,409.09 including a 15 per cent deduction for vicissitudes comprising $818.16 per week until Mr Bosevski was 67, Avopiling submitted that such damages should be calculated as the sum of two distinct periods. First, an allowance for $818.16 per week until age 62 using the following formula:

$818.16 x 271.4 (5% multiplier for 6 years) x 0.85 = $188,741.44

Secondly, an allowance of $628.02 per week (being the per week earnings of a taxi driver) between the ages of 62 and 67 using the following formula:

$628.02 x 231.5 (5% multiplier for 5 years) x 0.746 (5% multiplier deferred for 6 years) x 0.85 = $92,189.66

The total sum of the allowance sought by Avopiling was $280,931.10 rather than the primary judge’s allowance of $306,409.09.

99. Counsel for Mr Bosevski agreed with Avopiling’s submission as to the allowance for the first period, namely the sum of $188,741.44. Counsel for Mr Bosevski also accepted Avopiling’s submission as to the allowance for the second period with the caveat that the sum sought by Avopiling should be increased to factor in CPI increases on the sum of $628.02 per week for the three years from 2014 to 2017 according to the following formulae:

(CPI increase as at 30 June 2014 = 3%) $628.02 x 103% = $646.86

(CPI increase as at 30 June 2015 = 1.5%) $646.86 x 101.5% = $656.56

(CPI increase as at 30 June 2016 = 1%) $656.56 x 101% = $663.12

Counsel for Mr Bosevski therefore submitted that the correct formula for calculating the allowance for future economic loss should be the following:

$663.12 x 231.5 x 0.746 less 15% for the vicissitudes = $97,342.13

100. Assuming the rejection of the submissions recorded at [97], the total sum agreed upon by the parties for future loss of earnings was $286,083.57, being the sum of $188,741.44 and $97,342.13 rather than the primary judge’s allowance of $306,409.09.

Consideration

101. The submission recorded at [96], that the primary judge did not consider all the evidence concerning Mr Bosevski’s pre-existing and subsequent injuries that would have reduced his future earning capacity in any event, should be rejected. The primary judge correctly considered the possibilities and probabilities in relation to Mr Bosevski’s future earning capacity as required by Malec v JC Hutton. Some matters pointed in favour of a greater deduction and others pointed to a lesser deduction. The primary judge identified a deduction of 15 per cent as appropriate. This was a broad evaluative decision and no error has been shown by Avopiling in that evaluative decision.

102. Avopiling also fails in its challenge to the finding that Mr Bosevski by reason of the injuries he suffered as a result of Avopiling’s negligence could not undertake alternative employment such as that of a taxi driver. The primary judge accepted the joint expert neurological opinion and the joint expert psychiatric opinion that Mr Bosevski is “for practical purposes unemployable”. None of the matters raised by Avopiling cause me to doubt the finding that, by reason of the injuries suffered as a result of Avopiling’s negligence, Mr Bosevski was likely never to be able to work in the future.

103. The attack on the primary judge’s findings about loss of future earning capacity should be rejected, save that rather than the amount of $306,409.09 awarded by the primary judge, the figure of $286,083.57 should be awarded, on the assumptions identified at [98]-[100].

Past gratuitous care

Appellant’s submissions

104. The total allowance made by the primary judge for past gratuitous care was $294,403.20.

105. Avopiling submitted that the primary judge erred because Mr Bosevski did not establish an entitlement to such an award pursuant to s 15(3) of the Civil Liability Act and the damages awarded were wholly unreasonable: Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649; [1968] HCA 9; Dang v Chea [2013] NSWCA 80; (2013) 63 MVR 240 at [38]-[41]. Avopiling submitted that Mr Bosevski’s lack of specificity about his attendant care requirements meant that the primary judge impermissibly took the approach of “guessing” the number of hours per week of attendant care: Sampco Pty Ltd v Wurth [2015] NSWCA 117 per Basten JA at [91].

106. Further, Avopiling submitted that his Honour’s allowance failed to have regard to a range of evidence including, inter alia, evidence concerning Mr Bosevski’s capacity to complete household tasks and the extent of domestic assistance provided by Mr Bosevski’s second wife, Ms Bosevski. Avopiling submitted that the primary judge erred in not concluding that Mr Bosevski had periodically received domestic assistance which was unrelated to the proceedings, that he was able to perform household chores after the 22 September 2006 injury and that he had not established that the need for Ms Bosevski’s domestic assistance arose solely because of the 22 September 2006 injury or that such assistance would not have been provided to him but for that injury.

107. Regarding the primary judge’s allowance of $16,380 comprising 28 hours per week for the period 11 October 2006 to 10 April 2007 at $22.50 per hour, Avopiling submitted that a deduction of the entire sum of $16,380 should be made in light of this evidence, together with evidence of two overseas trips taken by Mr Bosevski for periods of seven weeks and one day and nine weeks and five days respectively and the two surgeries (and respective periods of convalescence) already described above.

108. Regarding the primary judge’s allowance of $222,418.56 comprising 21 hours per week for the period 10 April 2007 to 13 April 2015 at $25.46 per hour, Avopiling submitted that a deduction of $43,307.46 should be made in light of the same evidence described at [94], an alleged concession made by Mr Bosevski’s second wife that “it is a cultural construct that Macedonian woman do all of the cooking” and the fact that her household assistance included caring for Mr Bosevski’s son and her own children.

109. The total reduction in the award for past gratuitous care sought by Avopiling was $59,687.46, resulting in a total allowance for future gratuitous care of $234,715.74 rather than the amount of $294,403.20 awarded by the primary judge.

Consideration

110. Section 15 of the Civil Liability Act provides, relevantly:

“15 Damages for gratuitous attendant care services: general

(1) In this section:

‘attendant care services’ means any of the following:

(a) services of a domestic nature,

(b) services relating to nursing,

(c) services that aim to alleviate the consequences of an injury.

‘gratuitous attendant care services’ means attendant care services:

(a) that have been or are to be provided by another person to a claimant, and

(b) for which the claimant has not paid or is not liable to pay.

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

(a) there is (or was) a reasonable need for the services to be provided, and

(b) the need has arisen (or arose) solely because of the injury to which the damages relate, and

(c) the services would not be (or would not have been) provided to the claimant but for the injury.

(3) Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided):

(a) for at least 6 hours per week, and

(b) for a period of at least 6 consecutive months.

….”

111. The submissions that Mr Bosevski did not establish an entitlement to the award of damages pursuant to s 15(3) of the Civil Liability Act and that the damages awarded were wholly unreasonable should be rejected.

112. Regarding gratuitous past care, the foundation for the findings of the primary judge on this topic was the evidence of Mr Bosevski (at [39]-[55]), his second wife Ms Bosevski (at [98]-[129]) and Mr Bosevski’s son, David Bosevski (at [130]-[151]) which was summarised by the primary judge at those passages. That evidence established that Mr Bosevski was provided with gratuitous care by his family for virtually all of his needs after the accident as a result of his severe head injuries, cognitive and psychological impairment, chronic pain related to skull and facial fractures and neck and lower back pain.

113. The primary judge also relied upon two reports of an occupational therapist, Ms Kennedy-Gould, dated 28 March 2010 and 6 August 2012. There was no challenge to Ms Kennedy-Gould’s expertise or any challenge by cross-examination to her evidence. The primary judge accepted her evidence, namely that by reason of his injuries Mr Bosevski had been unable to resume any form of employment and that he “continues with symptoms that severely restrict his participation in everyday activities and he relies heavily upon family members for assistance”. In Ms Kennedy-Gould’s reports details were provided of domestic tasks undertaken by Mr Bosevski’s family.

114. Ms Kennedy-Gould’s analysis was that, in the six months following discharge from hospital, by reason in particular of the dizziness suffered by Mr Bosevski which necessitated assistance with personal care activities (showering and dressing in particular), transport and all other domestic assistance tasks (laundry, shopping, cooking, cleaning, oversight due to memory problems and emotional support), Mr Bosevski required an average of four hours of care per day from his family. She opined that during the period from 11 April 2007 until the trial Mr Bosevski required at least three hours per day of domestic assistance which was provided by his family but was equivalent to a companion carer because “he has continued to require assistance with all domestic activities, with oversight due to memory problems, emotional support and transport problems”. This evidence formed the basis for the primary judge’s award of damages under this head. Contrary to Avopiling’s submission, there is nothing in the reasoning of the primary judge to suggest that he guessed at the number of hours of care per week which had been provided. The attendant care services threshold in s 15(3) of the Civil Lability Act of at least six hours per week for a period of at least six consecutive months was met.

115. Avopiling’s reference to Sampco v Wurth does not avail it in relation to past gratuitous care. In that case the respondent had failed to prove that the gratuitous attendant care services threshold in s 15(3) of the Civil Lability Act was met. There was in that case a lack of evidence about what the relevant tasks requiring assistance were, how often those tasks were undertaken and how long each took. The evidence did not allow an affirmative conclusion that those activities required at least six hours per week. The evidence of the doctor in that case about the need for attendant care was “somewhat tentative”. In any event, the doctor did not have the expertise to make such an assessment and did not identify the activities which were included within the doctor’s assessment: at [83]. Finally, the assessment undertaken by the primary judge in that case did not distinguish between “services provided to” the plaintiff and general activities undertaken on the property: Sampco at [92]. In contrast, the evidence in the present case from Mr Bosevski’s family and Ms Kennedy-Gould about his need for attendant care was compelling.

116. Avopiling’s complaint that the primary judge failed to take into account evidence concerning Mr Bosevski’s capacity to complete household tasks and the extent of domestic assistance provided by Ms Bosevski (Mr Bosevski’s second wife) should also be rejected. The alleged “cultural construct that Macedonian woman do all of the cooking” must be weighed against the evidence from Mr Bosevski’s first wife, who was otherwise hostile to Mr Bosevski, that prior to the injury Mr Bosevski regularly cooked and performed household chores inside and outside the house. The restrictions Mr Bosevski had from his right shoulder, the evidence about the domestic work he did before the accident and the evidence of Ms Bosevski’s selfless attendance upon him after his accident, even in circumstances where they were no longer living together, do not cast doubt on Ms Kennedy-Gould’s assessment of his accident-related need for domestic and personal assistance. Given how extensive the services actually provided were, and the clear evidence about the absence of the provision of such services prior to the accident, the primary judge was entitled to conclude that those services would not have been provided to Mr Bosevski but for the injury, thereby satisfying s 15(2)(c) of the Civil Liability Act.

117. The primary judge was correct to conclude that, as a result of his injuries, Mr Bosevski was provided with attendant care by his family of at least four hours per day in the period 11 October 2006 to 10 April 2007 and at least three hours per day for the period 10 April 2007 until the trial. The threshold in s 15(3) of the Civil Liability Act was met. It follows that no error has been shown in the primary judge’s award of $294,403.20 for past gratuitous care.

Future domestic and attendant care

147. The principal submission made by Avopiling was that Mr Bosevski failed to prove the date upon which commercial care would be required in the future. It was submitted that the evidence was that Ms Bosevski would continue to provide gratuitous domestic attendant care for the whole of Mr Bosevski’s life and thereby obviate the need for commercial attendant care.

148. When the Malec v JC Hutton approach is applied to the facts of this case, however, an award of damages for future attendant care on a commercial basis is warranted. When the approach explained in White v Benjamin is adopted and the family circumstances are here examined, the following matters emerge. First, Ms Bosevski had ceased living with Mr Bosevski at the time of the trial. As senior counsel for Avopiling accepted, Mr Bosevski had not been entirely successful in having the continuous attentions of his spouse. Secondly, Ms Bosevski had expressed a desire to work to Mr Bosevski. Prior to emigrating to Australia, Ms Bosevski had been employed as a salesperson and had a diploma in make-up and beauty. Thirdly, the services being provided to Mr Bosevski were not necessarily of the kind which one may prefer to obtain from one’s spouse (as was the case immediately following the accident when Mr Bosevski required assistance dressing and bathing). Rather, the required services are the kind which are readily available and which can be availed of by those who can afford them and who are otherwise engaged in remunerative employment or have a disability.

149. It is true, as the appellant pointed out, that Ms Bosevski gave no viva voce evidence of her intention to work if an award for paid domestic care was obtained. To that end, I agree with Basten and Meagher JJA in White v Benjamin (at [87]-[88]) that it would be wrong to place too much weight on the absence of such direct evidence of intention. Accordingly, the absence of viva voce evidence from Ms Bosevski regarding her intention to work does not cause me to doubt the conclusion that, if an award of damages for future commercial care is made, Ms Bosevski will resume paid employment.

150. I am satisfied in this case that the primary judge did not err in, at least implicitly, deciding that after April 2015 the required attendant care services would likely be obtained on a commercial basis, assuming that funds were available to obtain such care. This is because I am satisfied, as Basten and Meagher JJA were in White v Benjamin (at [88]), that the required services are readily available and likely to be availed of by Mr Bosevski. Ms Bosevski’s selfless devotion to Mr Bosevski prior to April 2015, in circumstances where funds were not available to obtain commercial care, does not alter my judgment that the evidence discloses that such services were required and likely would have been obtained after April 2015 if funds were available.

151. Having made that finding, however, it is necessary to consider the extent of the “allowance, by way of vicissitudes, against the possibility that other events will intervene”: Australia and New Zealand Banking Group v Haq at [50] per Basten JA. The necessary exercise is “a form of speculation guided by knowledge of the plaintiff’s past and expectations, derived from general experience, as to the future”: Miller v Galderisi [2009] NSWCA 353 at [22]; Malec v JC Hutton at 640 and 643. In White v Benjamin, damages for future commercial attendant care were awarded for 30 years with a 15 per cent reduction for vicissitudes notwithstanding a finding that “there is a significant chance that commercial assistance will not be obtained” on the basis that a greater reduction would be “self-fulfilling”: at [92] per Basten JA. In the present case, a discount of 25 per cent should be made to reflect the various risks to which the appellant has drawn attention and the significant chance that commercial assistance will not be obtained. Any greater reduction would be self-fulfilling.

152. As Mr Bosevski and the Workers Compensation Nominal Insurer submitted, the life expectancy to be assumed in the calculation should be that derived from the life expectancy tables. As I have said, it does not follow from the use of the life expectancy tables, that no further allowance for vicissitudes is warranted for future attendant care. In the circumstances of this case the appropriate award is to be calculated on the following basis:

$45.50 x 21 x 814.5 (the relevant multiplier for Mr Bosevski’s life expectancy) = $778,254.75

$778,254.75 x 0.75 (the relevant multiplier for vicissitudes) = $583,691.06

155. Mr Bosevski should be awarded $583,691.06 for future commercial attendant care.

Lawn mowing, gardening and handyman services

Appellant’s Submissions

156. The primary judge made allowances of $36,652.50 for lawn mowing and gardening services and $26,226.90 for handyman services. Avopiling submitted that the primary judge’s allowances for lawn mowing, gardening and handyman services were erroneous because there was no evidence that the awards were reasonable or necessary.

157. Regarding the allowance of a sum of $36,652.50 comprising one hour per week at $45 per hour for Mr Bosevski’s life expectancy, Avopiling submitted that no allowance should be made as Mr Bosevski does not reside in accommodation requiring lawn mowing or gardening.

158. Regarding the primary judge’s allowance of a sum of $26,226.90 for handyman services comprising 0.46 hours per week at $70 per hour during Mr Bosevski’s life expectancy, Avopiling submitted that no allowance should be made as Mr Bosevski does not presently reside in accommodation requiring property maintenance. Alternatively, Avopiling submitted that “if an allowance is to be made for the future, it should be a small cushion”.

Consideration

159. The allowance by the primary judge for the future expenses of lawn mowing, gardening and handyman services had a basis in the evidence. Although Mr Bosevski did not at the time of the trial reside in accommodation requiring property maintenance or gardening it was his desire to live in accommodation with a garden. Handyman services would likely be required on the basis of Ms Kennedy Gould’s unchallenged evidence about Mr Bosevski’s abilities.

160. Applying the Malec v JC Hutton approach, however, and as a form of speculation guided by knowledge of Mr Bosevski’s past and expectations, derived from general experience, as to the future, the primary judge should have addressed this question on a contingency basis. Conducting such an analysis here, a reduction of 25 per cent is appropriate.

161. The appropriate award is to be calculated on the following basis:

$36,652.50 x 0.75 = $27,489.38 (for lawn mowing)

$26,226.90 x 0.75 = $19,670.18 (for handyman services)

162. Mr Bosevski should be awarded $27,489.38 for lawn mowing and $19,670.18 for handyman services.

Future treatment expenses

Submissions

163. Avopiling submitted that there should have been a deduction of at least 25 per cent for vicissitudes in relation to the claims for medication, pain specialist, neurologist, general practitioner and/or psychiatric treatment. Avopiling also challenged the primary judge’s allowance for the nerve stimulator on the basis that the evidence did not demonstrate that it served any benefit. Finally, Avopiling submitted that no allowance for travel should have been made because the travel related to matters in respect of which the primary judge made no findings.

164. Mr Bosevski submitted that there should not be any reduction to account for vicissitudes. Mr Bosevski contended that it is not part of the common law that treatment expenses should be reduced for vicissitudes and that there was no evidence regarding reductions for future treatment expenses due to contingencies.

Consideration

165. In relation to the nerve stimulator, the primary judge was correct to conclude that an allowance for the device was reasonable. The evidence clearly supported his Honour’s finding. Dr Lam, a treating doctor who was a pain specialist at the brain injury unit at Liverpool Hospital, gave evidence that the nerve stimulator gave Mr Bosevski “some relief to help with improvement in his quality of life”. Dr Lam’s evidence ultimately was not successfully contradicted and directly supported his Honour’s finding. No reason has been shown to interfere with his Honour’s allowance.

166. On the issue of contingencies, however, I am unable to agree with Mr Bosevski that the primary judge’s assessment of likely future medical expenses should not be approached on a Malec v JC Hutton basis. The identification of medical costs likely to be incurred in the future is a species of future economic loss under s 13 of the Civil Liability Act. As with all future events, there is a possibility that such expenses would have been incurred notwithstanding the injury, exactly the kind of situation contemplated by the High Court in Malec v JC Hutton.

167. The medical expenses in the present case are subject to fewer contingencies than other categories of future economic loss. This is because the primary judge had available evidence from the various treating specialists of the treatment given to date and the costs of the various treatment plans indefinitely into the future. There remained a doubt, however, about some of the expenses, in particular the continued use of the nerve stimulator over Mr Bosevski’s lifetime. In conducting the form of speculation guided by knowledge of the plaintiff’s past and expectations, derived from general experience, as to the future, the appropriate reduction is 10 per cent of the sum of $138,380.70 awarded by the primary judge.

168. The appropriate award is to be calculated on the following basis:

$138,380.70 x 0.90 = $124,542.63

169. Mr Bosevski should be awarded $124,542.63 for future medical expenses.

Conclusion on damages issues

170. For the foregoing reasons, ground 7 should be upheld in part. In summary:

1. Avopiling’s challenge to the primary judge’s award of damages for past economic loss fails save to the extent that a small adjustment needs to be allowed to take account of an operation for a thyroid condition which would have been required in any event. The primary judge’s allowance of $402,206.84 should be reduced by $3,458.04 to $398,748.80;

2. Avopiling’s challenge to the primary judge’s award of damages for loss of future earning capacity fails, save that the agreed adjustments to the award of damages for loss of future earning capacity must be made. The award is in the amount of $286,083.57, being the sum of $188,741.44 and $97,342.13, rather than the primary judge’s allowance of $306,409.09;

3. Avopiling’s challenge to the primary judge’s award of damages for past gratuitous care should be dismissed;

4. Avopiling’s challenge to the primary judge’s award of damages for future commercial attendant care succeeds in the sense that future commercial care should be awarded with a reduction of 25 per cent, to produce an award of $583,691.06;

5. Avopiling’s challenge to the primary judge’s award of damages for lawn mowing and handyman services succeeds. That award should have been approached on a Malec v JC Hutton basis. A reduction of 25 per cent should be applied, producing awards of $27,489.38 for lawn mowing and $19,670.18 for handyman services;

6. Avopiling’s challenge to the primary judge’s award of damages for future medical expenses succeeds. A discount of 10 per cent should be applied, producing an award of $124,542.63.

171. Although the Court has calculated figures for each of these matters it is possible that corrections will need to be made and likely that further calculations, particularly calculations of interest, will be necessary. It is appropriate that the parties have an opportunity to make submissions in writing about the appropriate orders to be made to give effect to the Court’s reasons.

Costs

172. Section 98 of the Civil Procedure Act2005 (NSW) confers on the Court a wide discretion with respect to costs. Under rule 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) the general rule is that the Court is to order that costs follow the event. The “event” may be characterised in more than one way. Generally the “event” refers to the result of the claim or counterclaim, as the case may be, and may be understood as referring to the practical result of a particular claim: Doppstadt Australia Pty Ltd v Lovick & Sons Developments Pty Ltd (No 2) [2014] NSWCA 219 at [15] per Ward, Emmett and Gleeson JJA. Where there has been a mixed outcome in the proceedings, and it is appropriate to entertain the process of apportioning costs as between different issues in the proceedings, in general such an exercise will be carried out on a relatively broad brush basis, and largely as a matter of impression and evaluation by the Court: Doppstadt at [19]; James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [36]; Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 at 22.

173. The relevant principles for the determination of costs on an issue-by-issue basis were stated in Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38] per Beazley, Ipp and Basten JJA:

“Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Waters v P C Henderson (Aust) Pty Ltd (Court of Appeal, 6 July 1994, unreported).

In relation to trials it has been said that it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument: SabahYazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 at [24]. A similar approach is adopted on appeal.

If the appellant loses on a separate issue argued on the appeal which has increased the time taken in hearing the appeal, then a special order for costs may be appropriate which deprives the appellant of the costs of that issue: Sydney City Council v Geftlick & Ors (No 2) [2006] NSWCA 374 at [27].

Whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed: State of New South Wales v Stanley [2007] NSWCA 330 at [18] per Hislop J (with whom Beazley and Tobias JJA agreed).

A separable issue can relate to “any disputed question of fact or law” before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [34].

Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation: James v Surf Road Nominees Pty Ltd (No 2), citing Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 272.”

174. In this case Avopiling has succeeded on some damages issues but failed on its challenge to liability. Liability issues occupied by far the most time in the written submissions and the presentation of the case on appeal. The principal success enjoyed by Avopiling was in relation to the method of calculation of future economic loss. Although that will ultimately have a significant financial impact on the calculation of damages in this case, most of the detailed and time consuming criticisms made by Avopiling in relation to damages failed.

175. This is a case where many of the issues of fact and law are separable. This is so both as between the liability and damages issues and also as between the various damages issues which were agitated.

176. Applying the appropriate broad bush approach based on matters of impression and evaluation, Avopiling should be assessed as having had 20 per cent success on the appeal (having obtained a reduction in damages), but having failed on the principal issue of liability and on many of the issues of damages. On the separable issues of liability and damages Mr Bosevski should be assessed to have been 80 per cent successful on the appeal. Considering the relevant “event” overall, and taking into account the success of both parties on the separable issues in this case, Avopiling should be ordered to pay 60 per cent of Mr Bosevski’s costs to reflect a set-off.

177. In the circumstances of this case, Mr Bosevski was successful below. Nothing in this appeal affects that overall success. It is thus not appropriate to interfere with the costs award made below as order 4 on 29 March 2017: Bosevski v Avopiling Ltd; the Workers Compensation Nominal Insurer v Avopiling Pty Ltd [2016] NSWSC 1893 at [379]-[380].

178. In the indemnity proceedings, where Avopiling failed in its challenge, Avopiling must pay the Workers Compensation Nominal Insurer’s costs of the appeal as agreed or assessed. Those costs should include the costs of participating in the debate about whether Mr Bosevski and Professional Contracting were negligent, a matter raised in Avopiling’s defence, the outcome of which debate affected the Workers Compensation Nominal Insurer’s interests.

179. Given that Avopiling’s cross-claim against the Workers Compensation Nominal Insurer (alleging it was responsible for Professional Contracting’s negligence) was discontinued before the trial commenced before the primary judge, orders 3 and 4 made by the primary judge on 3 July 2017 dismissing that cross-claim with costs were made in error and should be set aside.

Conclusion and orders

180. I propose the following orders in the negligence appeal 2017/117390 (2009/337291 in the proceedings below):

1. leave to amend the amended statement of claim sought on 23 February 2018 is refused;

2. appeal allowed;

3. set aside orders 1 – 4 made by the primary judge on 3 May 2017;

4. within seven days Mr Bosevski to file proposed orders to be made by the Court to reflect these reasons together with any written submissions in support of those proposed orders limited to 10 pages;

5. within 14 days Avopiling to file any competing proposed orders to be made by the Court to reflect these reasons together with any written submissions in support of those proposed orders limited to 10 pages;

6. within 21 days Mr Bosevski to file any final version of proposed orders to be made by the Court to reflect these reasons together with any written submissions in support of those proposed orders limited to 5 pages;

7. Avopiling to pay 60 per cent of Mr Bosevski’s costs of the appeal as agreed or assessed.

181. I propose the following orders in the indemnity appeal 2017/117381 (2011/70381 in the proceedings below):

1. appeal dismissed;

2. Avopiling to pay the Workers Compensation Nominal Insurer’s costs of the appeal as agreed or assessed.

182. WHITE JA: It is unnecessary to decide whether the primary judge’s formulation of the risk of harm was too specific (Payne JA at [34]). Even if that assessment were too specific, it would not affect the correctness of the primary judge’s conclusion that Mr Bosevski was not contributorily negligent, nor his Honour’s conclusion that Professional Contracting was not negligent. I prefer to express no view on whether his Honour’s formulation of the risk of harm was too specific.

183. Subject to this qualification, I agree with Payne JA.

**********

Amendments

10 August 2018 - 10/08/18: Typographical error in [169] amended.

27 August 2018 - 27/08/18: Paragraph numbering amended in [165].

31 August 2018 - table reformatted in [83]

09 May 2019 - Coversheet - corrected paragraph of White JA's judgment from [181] to [182]; added reference to Miller v Galderisi [2009] NSWCA 353

[21] - added pinpoint reference to judgment below, "at [331]"

[26], [28], [30], [31], [93], [157], [158] - removed ".00" from numerical figures

[36] - corrected case name "United" to "Uniting" and "of" to "in"; added reported citations

[37] - corrected case name adding "League"; removed MNC cited prior for Mooney; removed "per"

[38], [39] - added section heading for legislation

[43] – added reported case citation in Perisher Blue

[66], [70] - added reported case citation to Aust Torts Reps

[48] - added pinpoint reference to judgment below, "at [283]"

[83] - removed "20" from years in dates (i.e. "2019" became "19")

[96], [119], [132] - added reported case citation to MVRs

[99] - changed "20 June" to "30 June"

[115] - removed MNC cited prior in Sampco

[120] - removed case citation cited prior in Malec

[125] - corrected case name from "Simmons" to "Simmonds"; corrected citation of Babbage v Dungog to "536" from "562"; corrected to "Burchett AJ" from "Einstein J"

[130] - corrected pinpoint reference in Kirby P and Meagher JA judgment in Masland from "176-186" to "176-182"

[131] - removed MNC cited prior in Amoud and Miller v Galderisi

[139] - deleted "the" from "over the Mr Bosevski's life"

[145] - removed MNC cited prior in Miller v Galderisi

[153] - attributed quote to Miller v Galderisi at [22]

[170(2)] - rephrased to "award of damages for loss of future earning" rather than "award of loss for future earning"

[178] - corrected "Boveski" to "Bosevski"

Decision last updated: 09 May 2019