Clarence Valley Council v Macpherson - [2011] NSWCA 422

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Clarence Valley Council v Macpherson [2011] NSWCA 422
Hearing dates: 24 November 2011
Decision date: 22 December 2011
Before: Young JA at 1; Sackville AJA at 2; Tobias AJA at 3
Decision:
(a) Appeal allowed in part;
(b) Set aside the verdict and judgment of her Honour Judge Flannery SC of 16 March 2011 in the sum of $536,880.47 and substitute therefor a verdict and judgment for the respondent against the appellant in the sum of $414,207.94.
(c) Each party to bear their own costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: TORTS - negligence - personal injury - chainsaw - host employer - labour hire company - existence of duty of care - breach of duty of care - apportionment - assessment of damages - non economic loss - past economic loss - future economic loss - past attendant care services
Legislation Cited: Civil Liability Act 2002
Workers Compensation Act 1987
Cases Cited: Czatyrko v Edith Cowen University [2005] HCA 14; (2005) 214 ALR 349; (2005) 79 ALJR 839
Dell v Dalton (1991) 23 NSWLR 528
Jakovich Transport and Earthmoving Pty Limited v Spiral Tubemakers Pty Limited (2000) 31 MVR 141
Kurrie v Azouri (1998) 28 MR 406
Lee Transport Co Limited v Watson (1940) 64 CLR 1
Moran v McMahon [1985] 3 NSWLR 700
Miller v Jennings (1954) 92 CLR 190
Owners - Strata Plan 156 v Gray [2004] NSWCA 304
Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34; (1985) 59 ALJR 492
Sherwood v Guneser (1992) 110 FLR 459
TNT Australia Pty Limited v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1
Category: Principal judgment
Parties: Appellant: CLARENCE VALLEY COUNCIL
Respondent: Robert John MACPHERSON
Representation: Counsel:
Appellant: P G Mahony SC/ S E McCarthy
Respondent: S G Campbell SC/ R Harrington
Solicitors:
Appellant: DLA Piper
Respondent: Lee Sames Egan

File Number(s): CA 2011/119744
Decision under appeal

Date of Decision:

2011-03-16 00:00:00

Before:

Flannery DCJ

File Number(s):

2010/101487

Judgment

YOUNG JA: I agree with Tobias AJA.

SACKVILLE AJA: I agree with Tobias AJA.

TOBIAS AJA: On 30 October 2008 the respondent, Robert John Macpherson, sustained a severe twisting injury to his right wrist together with a fracture of the base of the fourth metacarpal whilst using an auger drill bit powered by a chainsaw to drill holes in camphor laurel trees to enable them to be poisoned. He instituted proceedings against the appellant, Clarence Valley Council, for whom he was then carrying out that work. The respondent's actual employer at the time was a labour hire company, APS Pacific Pty Limited ("APS"), who had hired the respondent's services to the appellant who thereby became, for all relevant purposes, his employer.

The respondent alleged, relevantly, a breach of the appellant's duty of care, akin to that of an employer, in failing to provide him with adequate and safe equipment to enable him to carry out his work. In particular, it was alleged that the appellant failed to provide the respondent with an auger fitted with a torque-limiting clutch arrangement.

The proceedings were heard by her Honour Judge Flannery SC who on 16 March 2011 entered a verdict and judgment for the respondent in the sum of $536,888.47. As well as finding in favour of the respondent on the issue of liability, her Honour awarded damages in the sum of $631,633.49 made up of the following components:

Non economic loss $109,000.00

Past out of pockets 38,994.32

Future out of pockets 18,000.00

Past economic loss 92,357.01

Past superannuation 8,312.13

Future economic loss 236,988.00

Future superannuation 21,328.96

Past care 25,399.89

Future care 79,443.00

Fox and Wood 1,810.18

Total $631,633.49

As the respondent was at the time of his injury employed by APS, the appellant being his host employer, it was necessary for the primary judge to give effect to s 151Z(2) of the Workers Compensation Act 1987. The application of that section involved a finding by her Honour that APS was also in breach of their duty of care to the respondent as his employer by, relevantly, failing to provide him with safe plant and equipment. Although it was submitted to her Honour that APS was not in breach of its duty of care, that issue was determined in favour of the appellant and there is no challenge to that finding. Her Honour was then required to apportion the responsibility for the respondent's injuries between the appellant and APS and she did so by assessing APS's share of responsibility at 15 per cent. Accordingly, the primary judge reduced the total damages of $631,633.49 by that percentage to the amount for which she entered a verdict and judgment against the appellant, namely, $536,888.47.

The appellant appeals to this Court with respect to the issues of liability, apportionment, and those components of the respondent's damages being non-economic loss, past economic loss, future economic loss, and past gratuitous care. There is no challenge to the other components of the respondent's damages.

It is convenient to deal with the issues the subject of challenge separately and in so doing to recite the facts and findings of her Honour with respect to those issues as well as the parties' submissions thereon and my resolution of them.

The issue of liability

(a) The relevant facts

The facts relating to the issue of liability were not in issue. As already observed, at the time of the accident, the respondent was employed by APS and had been so employed on an intermittent basis since approximately 2000 or 2001.

On 22 October 2008 APS hired his services to the appellant to work in a team eradicating camphor laurel trees within the appellant's area.

The evidence does not clearly disclose the nature of all the work which the respondent undertook for the appellant between 22 October 2008 and 28 October 2008. However, on 29 October 2008 he commenced a camphor laurel eradication programme under the supervision of employees of the appellant including a Mr Chris Clausen, the appellant's Senior Weeds Officer. That work initially involved the use of an axe to cut "scuff marks" around the base of the camphor laurel trees to enable poison to be poured into the marks. However this method proved to be inefficient and the following day, 30 October 2008, a different method was utilised to poison the trees. That method was to drill holes approximately 200mm apart into the base of the tree to a depth of about five or six inches at a height about one foot above the ground and then to pour poison into the holes.

For the purpose of carrying out this method of eradicating the camphor laurel trees, the appellant provided the respondent with a chainsaw with an auger attachment. It was common ground that a conventional chainsaw used for cutting can be converted into a drilling machine by the attachment of an auger. The chainsaw and auger provided to the respondent came from the appellant's store. The primary judge found that the storeman, Mr Tony Dunn, initially produced a chainsaw with a bar on it but having been informed that what was required was a chainsaw with an auger, Mr Dunn then produced a modified chainsaw with an attached auger or drill.

The respondent, accompanied by another employee of the appellant, Mr Nathan Ferrie, then returned to where they had been working the previous day. He and Mr Ferrie then took turns in using the chainsaw. The person using the chainsaw drilled holes around the base of the camphor laurel tree and the other person then injected poison into the holes.

It was the respondent's evidence, accepted by the primary judge, that to operate the chainsaw the operator's left hand is placed on the bar and the right hand on the throttle. The clutch is then engaged, the engine primed and then started and the clutch disengaged. To cause the bit of the auger to turn, the throttle button, which is underneath a guard, is pressed with the fingers. The drill bit then turns in a clockwise direction. As the drill rotates, force is transmitted back to the handle held by the operator.

As I have indicated, the respondent and Mr Ferrie took it in turns using the chainsaw with its attached auger, until lunchtime. During this time the respondent noted that the drill was getting stuck quite "a fair bit". After lunch it was the respondent's turn to use the chainsaw. It was his unchallenged evidence that as he was drilling a hole, the drill bit got stuck in the tree. At the same time the motor was turning violently in an anti-clockwise direction. This caused his right hand to become stuck in the throttle, twisting it clockwise. Eventually he pulled his hand free. The chainsaw then stalled with the drill bit imbedded in the tree.

An accident report filled in by one of the appellant's employees shortly after the incident, recorded the following:

"While drilling holes into a camphor laurel with a powered boring machine the auger bit passed through a soft 'white ants' riddled pipe and then quickly grabbed onto a hard section of timber. This caused the auger bit to stop turning in the wood, however the machine spun around and twisted the operator's fingers and wrists."

Immediately after the incident a Mr Ryan Steen and Mr Chris Goodman, two other employees of the appellant, came over to see what had happened. The respondent told them that he had twisted his right hand when the drill bit became stuck. Mr Steen then took him over to his truck and showed him a chainsaw and attached auger with an external clutch and said "it probably would not have happened if it had had this clutch". The clutch referred to was found by her Honour (at [33]) to be one which limited the torque generated by the drill bit becoming stuck.

(b) The expert evidence

The respondent tendered a report dated 28 June 2010 from a forensic engineer, Mr Colin Simpson. Mr Simpson was unable to inspect the actual chainsaw and auger being used by the respondent at the time of the accident as the appellant had disposed of it by that time. Mr Simpson set out in his report a history of the matter which included the following passage which, on the hearing of the appeal, the appellant accepted as accurately stating the mechanism pursuant to which the respondent sustained his injuries. It was in the following terms:

"Having completed the drilling of holes in trees for some four (4) to five (5) hours on that day, the [respondent] commenced to drill a hole into one particular tree using the machine. The tree is described as being so soft that the auger chewed through the outer material and went several inches into the tree.

As the [respondent] was putting a little bit of pressure on the machine to make sure that the auger bit into the tree, the auger bit "grabbed" on something hard within the tree with the torque reaction then causing the entire chainsaw and motor to spin in the opposing direction to the auger. The [respondent] had hold of the motor section of the machine and the handles provided for the purpose, but the sudden anti-clockwise rotation of the machine, under power, caused the [respondent's] right hand to become caught in the throttle trigger space as it was twisted, this then placing additional strain on the right hand of the [respondent] as the motor of the machine was caused to continue operating.

As a result of the torque reaction being suddenly applied through the right hand of the [respondent], the [respondent] is said to have suffered severe injuries."

Mr Simpson noted that he had been instructed that the auger attachment of the chainsaw did not incorporate a torque-limiting clutch arrangement and, therefore, the entire powered torque and inertia reaction was borne by the respondent as the auger bit "bit" into some hard section of the tree which caused an abrupt stop to its rotary motion. He further observed that a conventional chainsaw of the internal combustion engine powered type (which was the type being used by the respondent at the time) incorporates a centrifugal clutch arrangement between the engine crankshaft and the drive sprocket for the cutting chain. However, there is no further clutch arrangement within the machine that will prevent it kicking back in the event that the chain is caused to jam or otherwise stop when under power.

Mr Simpson opined that if the chainsaw is to be used with an alternative boring or drilling attachment, then that attachment must include some form of clutch arrangement to limit the torque and hence the forces that can be applied back through the operator during normal and expected use of the machine. In the event that there is no torque-limiting clutch, all of the reaction forces that are created by the machine as it strikes an object, will then be applied back through the operator who is then the only means of countering that torque. He continued: " In the experience of the writer and through the research carried out by the writer, it would appear that it is almost universal practice to fit such attachments to internal combustion engine powered chainsaws and the like with torque limiting clutches ."

Mr Simpson further opined that it was foreseeable that a chainsaw with an auger attachment has the readily identifiable capacity, or propensity, to jam during normal operations. Further, it was foreseeable that in the event the machine was to jam, any torque reaction must be limited by the use of a clutch and/or brake arrangement or otherwise it is transmitted directly to the operator. He continued: " Any form of very basic risk analysis, in the use of such machines, should recognise the dangers that operators, such as the [respondent], are subject to in the event of the machine stalling suddenly, without being fitted with such a clutch, or brake, arrangement ".

Mr Simpson gave oral evidence. In chief, he said, unchallenged in cross-examination, that the clutch mechanism which he stated should have been fitted to the subject chainsaw, had been available since the early 1960's. He further said that it was not necessary to purchase a chainsaw with a clutch already fitted as it came as part of the drilling or auger attachment.

In cross-examination Mr Simpson agreed that there was nothing about the auger attachment involved in the present case that was illegal simply because it did not have the clutch arrangement to which he had referred. Further, he accepted that it did not offend any Australian standard or regulation.

Mr Simpson was then asked, in effect, to assume that the respondent had a certificate (which he did) certifying that he had successfully completed a safety instruction course in the use of a chainsaw and, further, that he had used a conventional chainsaw including one with an auger hundreds of times before the accident. The following exchange then occurred:

"Q. And once you've satisfied or once you've done that [satisfied himself that the operator was properly trained to use the chainsaw] and you've seen the certificate and they've satisfied it's been used in the past, that's really about all you can do to equip someone to use this device isn't it?

A. No. You mention the word certificate, depending upon what's on the certificate and what is done to gain that certificate is rather important. The attachments used for drilling and boring with chainsaws are provided with specific warnings in one particular area and that is this torque reaction. It doesn't happen with a chainsaw, a conventional chainsaw. It certainly does with a drill, an auger, a post hole digger attachment or something like that. The manufacturers for example provide literature with the machines warning against the dangers or warnings of the dangers of the torque reaction."

It is unnecessary to refer further to Mr Simpson's cross-examination as no other part of it was relied upon by the appellant in argument.

(c) The primary judge's findings

At [25] of her reasons, the primary judge noted the appellant, while not unquestionably accepting that it owed a non-delegable duty of care to the respondent, did not seriously dispute that its position was analogous to that of an employer. What was in dispute was whether it had breached that duty. On the appeal only the primary judge's finding with respect to breach of duty was the subject of challenge.

Her Honour referred to the scope of an employer's duty by reference to the following passage from the joint judgment of the High Court (Gleeson CJ, McHugh, Hayne, Callinan and Heydon JJ) in Czatyrko v Edith Cowen University [2005] HCA 14; (2005) 214 ALR 349; (2005) 79 ALJR 839 at [12]:

"An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work."

The primary judge then noted the competing submissions of the parties. It was submitted by the respondent that first, requiring him to drill holes in camphor laurel trees using an auger drill bit driven by a chainsaw motor which did not have a torque-limiting clutch arrangement exposed him to an unnecessary risk of injury; and secondly, reasonable care required the appellant to provide a chainsaw that had such an arrangement fitted.

On the other hand the appellant submitted that it was reasonable for it to provide to the respondent the chainsaw that he was to use as there was no law or standard that mandated to the contrary and it would be unreasonable to expect an organisation such as the appellant to replace its perfectly satisfactory equipment just because there was a more up-to-date model on the market. It was submitted that it would be " breaking new ground " in the law of negligence if her Honour were to find that the appellant was in breach of its duty in failing to provide to the respondent a chainsaw which incorporated a torque-limiting clutch arrangement. These arguments were generally rehearsed in the appellant's written submissions on the appeal.

The primary judge (at [31]) then set out s 5B(1) of the Civil Liability Act 2002 (the CL Act ) and found that sub-paragraphs (a) and (b) were satisfied in that the risk of harm was foreseeable and was not insignificant. She referred to a document of the appellant which was required to be completed and sent to the appellant's Occupation, Health and Safety Unit within 12 hours of an incident or injury. The document described how the respondent sustained his injury and, under the heading "Risk rating", stated that the likelihood of the incident occurring was " medium ". Under the heading "Corrective action" and the sub-heading "Recommended actions" were written the words " Only use powered boring machines with torque clutch ". Under the heading "By whom" was written " operator " and under the heading "By when" was written " always ".

After reciting the evidence of Mr Simpson to which I have referred, her Honour found (at [38]) that the fact that the appellant had at least one powered chainsaw and auger with a torque-limiting clutch and which was used on 30 October 2008 by Mr Steen and Mr Goodman, allowed her to infer that the appellant must have known that there was a real risk of injury to a person who used such a machine without such a clutch. Her Honour then rejected (at [40]) the appellant's submission that a reasonable person in the appellant's position would not have replaced its perfectly adequate equipment with a machine that included a torque-reducing device as there was no law or standard that required it to do so.

Her Honour then set out at (at [41]) s 5B(2) of the CL Act finding (at [42]), first, that it was probable that serious harm of the kind that the respondent sustained would occur if powered boring machines did not have a torque-limiting clutch arrangement when used for camphor laurel eradication work; and, secondly, that ensuring that only powered boring machines which had a torque-limiting clutch arrangement was used for such work would not be especially burdensome (noting that the appellant did not seriously suggest to the contrary).

The primary judge's conclusions on the issue of breach were as follows:

"48) Accordingly, I find that a reasonable person in the [appellant's] position would have provided to its employees and quasi employees who were using powered boring machines for camphor laurel eradication, a machine that contained a torque limiting clutch arrangement.

49) I fully appreciate that the mere fact that the risk could have been avoided by the use of equipment which incorporated a torque limiting clutch arrangement did not necessarily mean there was a breach of duty. The question is whether the [appellant] in the circumstances took reasonable care. I have found that it did not.

50) I accept Mr Simpson's evidence that if the machine the [respondent] used had incorporated a torque limiting clutch arrangement, force would not have been transmitted back to the handle and hence the operator and the [respondent] would not have been injured."

(d) The appellant's submissions

The appellant's submissions on this issue may be summarised as follows:

(a) At [48] and [49] of her reasons the primary judge failed to identify the particular risk of harm which led to the appellant's breach of duty; further, her Honour approached the issue of breach with the benefit of hindsight rather than prospectively;

(b) Her Honour failed, as required by s 5B(2)(a) of the CL Act , to determine the probability that the harm would occur if care was not taken. This involved a determination as to the magnitude of the risk which, so it was submitted, was low due to the fact that between them, the appellant's employees (including the respondent) had on 30 October 2008 and prior to the respondent sustaining his injuries, been involved in drilling approximately one thousand holes in camphor laurel trees without incident;

(c) There was no law against the use of a chainsaw with an auger attachment that did not have a torque-reducing clutch fitted and that it would be unreasonable to require the appellant in those circumstances to fit an attachment which was not required either by any law, regulation or Australian standard.

(e) The appellant's submissions should be rejected

In my opinion the appellant's submissions are without merit. The primary judge identified the particular risk of harm at [36] and [37] of her reasons when she referred to and accepted the following oral evidence in chief of Mr Simpson:

"The engine on a lot of machines is capable of producing a twisting power or torque that is greater than a human being can withstand or hold and if it is applied rapidly, which occurs when the machine is suddenly brought to a halt through the drill bit in this case being jammed or otherwise caused to stop, the reactive force is very high and it is in the opposing direction to the rotation of the drill bit. The clutch is generally a spring loaded device which sits between the motor and the drill bit which limits the amount of torque that can be transmitted by the motor to the drill bit."

Further, the appellant itself recognised that there was such a risk in two respects. First, it had provided two of its employees who were carrying out the same work as was the respondent at the same time with a chainsaw to which was fitted an auger with a torque-limiting clutch. Secondly, in the incident report dated 31 October 2008 it recognised that a powered boring machine should always be used with such a clutch.

Although the appellant submitted that even in an employment context the law of negligence does not and cannot extend to requiring employers to do more than abide by the workplace laws, industry standards and regulations which govern them, of itself that cannot necessarily negative any breach of the employer's duty of care where it has provided equipment which it knows or ought to have known is unsafe. Furthermore, the appellant's submission that a finding of want of reasonable care in the present case would require in its practical application the appellant to discard perfectly complied items of plant and equipment, is without substance given the unchallenged evidence of Mr Simpson that the auger attachment itself normally comes with a torque-limiting clutch. A finding of want of reasonable care would not, contrary to the appellant's submission, require it to discard its existing chainsaws.

Nor is it to the point that during the course of the day and prior to the respondent's accident he and his fellow workers had drilled over a thousand holes without incident. The evidence established that on a number of occasions the respondent experienced the auger bit that he was using becoming stuck or jamming albeit that that jamming did not cause the chainsaw to spin counter clockwise. The evidence of Mr Simpson and, I would add, commonsense justifies the primary judge's finding that sooner or later a jammed auger would cause the chainsaw motor to spin counter clockwise thus creating an amount of torque with the potential to cause serious injury to the operator.

I would further reject the appellant's submission that in considering whether a reasonable person in the position of the appellant would have taken precautions against the relevant risk of harm, it was relevant to take into account the fact that the respondent was an experienced worker proficient in the use of chainsaws. It was submitted that the respondent's experience ought to have informed her Honour's decision with respect to the reasonableness of the appellant providing him with an auger fitted with a torque-limiting clutch arrangement. However, the evidence of the respondent was that although he had used a chainsaw on many occasions, he was unaware that a torque-limiting clutch arrangement could be fitted to an auger in order to avoid the type of reaction to the jammed drill bit that he experienced in the present case. Although it is correct that the primary judge did not refer to this submission, in my view she was justified in ignoring it as it is devoid of merit.

For the foregoing reasons in my opinion the appellant has not demonstrated error with respect to her Honour's finding that the appellant was in breach of its duty of care.

Apportionment

(a) The relevant facts

Exhibit E comprised an APS personnel document which was tendered by the respondent and admitted without objection. The document recorded that the relevant contact person at the appellant was Mr Clausen and that the position for which the respondent's services were to be hired by the appellant was that of a spray operator. His work description was as follows:

"To assist the Chief Weeds Officer [Mr Clausen] to implement the management, planning, and inspection of land under the direction of the Clarence Valley Weeds Authority (CVWA) through undertaking spraying operations throughout three (3) member Councils in accordance with member Council's legal and policy obligations."

It noted that the charge rate by APS to the appellant for the respondent's services was $28.55 per hour and that his base rate of pay was $20.52 per hour.

From APS's perspective this document established that Mr Clausen had requested the services of an APS employee for the position of a spray operator and for the purpose, relevantly, of undertaking spray operations to eradicate weeds.

(b) The primary judge's finding

At [56] of her reasons her Honour noted the submission of the respondent that APS had not breached its duty of care to him in providing a safe system of work for although it had a duty to provide the respondent with safe plant and equipment, in circumstances where the appellant provided the equipment to the respondent in a " spur of the moment " fashion, there was no evidence that APS would know or could have prevented provision of what was defective or unsafe equipment on the morning of the accident.

The reference to the " spur of the moment " related to the fact that it was only after he finished work on 29 October 2008 that the respondent was informed by Mr Clausen that the method of poisoning the camphor laurel trees was to be changed the next day from the use of an axe to create the necessary holes into which to infuse poison to the drilling of holes with an auger attachment to a chainsaw. In these circumstances, so it was submitted, APS neither knew of, nor could have prevented, the provision by the appellant of an inappropriate chainsaw and auger to the respondent.

At [59] of her reasons, the primary judge noted that the evidence before her on this issue was confined to that of the respondent. His evidence was that Mr Johnson, a director of APS and the person with whom he had contact, effectively had nothing to do with the job once it was commenced on 22 October 2008. He neither attended the site where the respondent was working nor required the respondent to report to him about what work he had done during the day. Nor did he provide any training or instruction to the respondent in the use of machinery.

In the foregoing circumstances the appellant submitted to her Honour that she would find APS was 30 per cent responsible for the respondent's injuries and would reduce his damages accordingly.

At [61] her Honour accepted the respondent's submission that the appellant did provide the chainsaw and auger to the respondent in a " spur of the moment " fashion as a consequence whereof it was difficult to see how APS would or could have prevented the provision of inappropriate equipment on the morning of the accident. Nevertheless, her Honour observed that APS could not abdicate its continuing responsibility to its employees with respect to the provision of safe plant and equipment. She accordingly assessed the negligence of APS at 15 per cent.

(c) The appellant's submissions

The appellant submitted that if it was negligent in providing the respondent with a chainsaw without a torque-limiting clutch, it must follow that a similar finding must be made with respect to APS. While the evidence was clear that APS delegated its duty to the appellant, it did so without any regard at all for the respondent's safety. It gave him no training with respect to the handling of machinery; it did not require the respondent to report to APS as to the work he was required to do and there was no contact between APS and the appellant's depot where the offending chainsaw and auger were stored.

Reference was made to the two authorities which, so it was submitted, provided a guide to an appropriate apportionment in the present case: Jakovich Transport and Earthmoving Pty Limited v Spiral Tubemakers Pty Limited (2000) 31 MVR 141, and TNT Australia Pty Limited v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1. However, I do not find any assistance in these authorities as they both depend, as does the present case, on its own facts and circumstances.

(d) The appellant's submissions should be rejected

The appellant acknowledged that the appropriate principles to apply to any appellate intervention with respect to her Honour's assessment of an appropriate percentage apportionment as well as the principles applicable to such an assessment are those referred to by the High Court in Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34; (1985) 59 ALJR 492. At 493-4 the Court (Gibbs CJ, Mason, Wilson, Brennan and Deane JJ) in a joint judgment observed that a finding on a question of apportionment is one which involves an individual choice or discretion as to which there may well be differences of opinion by different minds. Such a finding, the Court stated, if made by a judge is not lightly reviewed. Judicial restraint was the order of the day.

At 494 the Court stated the following principle with respect to the making of the relevant assessment (omitting citations):

"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man ... and of the relative importance of the acts of the parties in causing the damage ... It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination."

Although it was submitted that her Honour did not undertake the relevant task in accordance with the principles referred to, I do not consider that the ultimate figure to which she came (15 per cent) was outside the bounds of a sound discretionary judgment. Furthermore, the carrying out of the comparative exercise to which the High Court referred in Podrebersek would not, in my opinion, result in any different figure to that adopted by the primary judge. There was a high degree of departure from the standard of care of the reasonable employer by the appellant and a low degree of departure from that standard by APS. This was because, as her Honour found, it was the appellant, without any notice to APS, that at the last minute had changed the method of work from the use of an axe to the use of a chainsaw and auger. Of greater significance, in my view, is the fact that the evidence established that as far as APS was concerned they were hiring the services of the respondent to the appellant for the purpose of carrying out spray operations. At no time did the appellant inform APS that the respondent would be required to operate any plant or machinery other than that required to carry out the task of a spray operator.

The alleged lack of interest of APS in the wellbeing of the respondent therefore assumes a relatively unimportant failure compared to the failure of the appellant to provide the respondent with a chainsaw and auger fitted with a torque-limiting clutch arrangement. The immediate and major cause of the respondent's injuries lay with the appellant rather than APS.

In the foregoing circumstances, in my opinion no error has been demonstrated in her Honour's assessment of APS' responsibility for the respondent's injuries at 15 per cent.

Non-economic loss

(a) The medical evidence

On admission to hospital the respondent, upon his right hand and wrist being x-rayed, was found to have a fracture to the base of the 4 th metacarpal and swelling of the wrist. The fracture to his finger did not heal quickly and was kept immobilised in plaster for some months. He commenced physiotherapy which enabled him to reduce the use of the splint. It was then that he noticed a constant pain in his right wrist which restricted his ability to lift and undertake manual activity as he was right hand dominant. He was eventually referred to Dr Bryce Meads, a hand specialist, who on 26 May 2010 undertook surgery to repair the triangular fibro cartilage and scaphoid lunate ligament. Following the surgery his hand was placed in plaster for approximately eight weeks after which physiotherapy was resumed.

In August 2010 the respondent commenced seeing a psychologist as he found himself breaking down and crying as he could not undertake various activities anymore. He was placed on anti-depressant medication. By October 2010 he felt that his wrist was back to approximately 85 per cent of its usual function although at the time of trial he still did not have full movement and found it difficult to lift even seven kilograms.

The respondent was examined by Dr Tony Blue, orthopaedic surgeon, on behalf of the appellant's workers compensation insurer. In his report dated 9 December 2009 (which was prior to the surgery performed by Dr Meads) Dr Blue noted that the respondent was right-handed dominant and had previously been involved in recreational golf, fishing, gardening and cleaning of his swimming pool, to none of which he had at that time been able to return.

A radiological investigation revealed soft tissue swelling around the right wrist extending into the carpal joints and patchy bone marrow oedema consistent with a then reflex sympathetic dystrophy. A more recent scan in December 2009 revealed abnormal uptake in the region of the styloid process of the right distal ulna consistent with the previous fracture of the styloid process demonstrated in his multiple x-rays. Significant arthritic degeneration was displayed in his right wrist. Dr Blue recommended that he be referred to an expert hand surgeon or a rheumatologist in view of the active arthritic changes demonstrated in his bone scan. At that time he remained unfit to return to his previous work activities of heavy labouring.

The respondent was seen by Dr Murray Hyde Page, orthopaedic surgeon, retained on his behalf in November 2009. Dr Hyde Page then opined that the respondent had suffered quite a severe twisting injury to his dominant right forearm, wrist and hand which resulted in soft tissue injury around the wrist and hand as well as a fracture of the base of the 4 th metacarpal which went on to unite satisfactorily although it was slow to do so initially. However, although the soft tissue injury had settled down he was left with a chronically painful right wrist where he appeared to have aggravated a pre-existing chronic wrist condition or injury.

In a report dated 19 November 2010, which was after Dr Meads had performed surgery on the respondent's wrist the previous May, Dr Hyde Page noted that his examination of the respondent indicated some ongoing stiffness in the right wrist but no pain with movement. He opined that as it was now six months since his surgery, his wrist had improved to the extent that he no longer had any significant pain and had better strength in his hand although he had ongoing wrist stiffness. He continued in the following terms:

"His capacity to undertake manual work is quite limited. He left school at the end of Year 10 and has had no formal training since then. Throughout his working life he has only ever done moderate to heavy labouring work. The type of work in the past has included farm work, timber mills, demolition and construction work as well as spraying weeds and horticultural work when he suffered his wrist injury.

His capacity to return to this type of work is very restricted. I note that his treating surgeon, Dr Meads, states that he should not undertake lifting of more than 2 to 5 kgs in the right hand and avoid any jarring activity. I agree with this summation and this basically means he can no longer return to the type of work he was doing prior to his work injury and as I have listed above. There is still the ongoing stiffness in his right wrist which makes it more difficult for him to undertake finer work activity using his dominant right hand.

He still has significant restrictions in his ability to undertake heavier domestic tasks. He can't use a push mower for his lawn and in fact now has a ride on mower. If he were to undertake heavier tasks such as car maintenance, changing tyres or pruning trees and heavier gardening he would find this quite difficult and would have to rely much more on his non-dominant left upper limb. Anything of this nature he now undertakes he tends to use his left hand and arm much more and is very cautious with his right hand.

...

On looking at the overall prognosis I need to take into account that he has disrupted the right wrist joint where he has now had the surgical repair. This does make him more predisposed to developing osteoarthritis in the right wrist over a period of years and it is more likely to occur if he goes back to moderate to heavy manual tasks on a consistent basis. If the osteoarthritis were to become serious enough he may need to have a wrist fusion but this is unlikely in the next 5 to 10 years. He is unlikely to need any other surgery in the short term."

Post surgery Dr Meads provided two reports. The first dated 23 September 2010 noted that the respondent would be able to resume suitable duties but with a limit on lifting to two to five kilos with his right hand. He considered that the respondent had had a good result from his injury although he might find it beneficial to avoid jarring it with activities such as using an axe, digging or use of sledgehammers or hammering with his left hand. Thus, he might require permanently modified duties with these restrictions.

In his report dated 3 November 2010 Dr Meads again opined that the respondent had done very well with his right wrist and had minimal pain. Although he was capable of returning to work he probably would need permanently modified activities as he did not have normal strength. That this was so was established by a comparison of the gripping strength of his right and left hands.

The respondent tendered two reports by Dr Roger Parkington, a consultant orthopaedic surgeon, who had examined the respondent on behalf of the appellant. In his report dated 27 July 2010 (some three months after the surgery) Dr Parkington noted that the respondent's only current complaint was that he still had some pain on the dorsum of the wrist while it was in plaster. However as the respondent was still in plaster, Dr Parkington considered it was too early to provide a prognosis.

Dr Parkington provided a further report dated 25 January 2011. He noted that after surgery the respondent had worn a fibreglass cast on his right forearm for about nine weeks and that after it was removed he had a prolonged course of physiotherapy which finished on 24 January 2011. He noted that the respondent had indicated that he had improved a great deal since the surgery although he still had some aching in the right wrist which was worse with activity. He thought that his right wrist was stiff and weaker than before. Dr Parkington noted that the respondent could drive an automatic car and could perform lawn-mowing although he could not start the mower because the jarring hurt his wrist. He still had discomfort in the right wrist when gripping and using tools. He had tried playing darts but had not then returned to golf. He had tried fishing and could do that but was unable to do prolonged digging. Movements in his right wrist compared to his left wrist were in some respects restricted particularly with palmar flexion and ulnar deviation.

Dr Parkington opined that the respondent had sustained a severe twisting injury to the right arm and was fortunate not to have suffered more extreme injuries. However, he had made a very good recovery. He had undergone surgery and his condition was now stabilised and would not further improve with time or treatment.

Dr Parkington's prognosis with respect to the respondent's fractured metacarpal was that it was excellent and his hand was normal. However, the same could not be said for his right wrist as the respondent had some restriction of movement which Dr Parkington thought to be permanent. He would probably also have weakness of gripping with the right hand.

He noted that the respondent was working principally spraying weeds prior to his injuries and he was fit to return to that sort of activity. However, he recommended that he not return to using a chainsaw and auger and that he could not perform activities that required him to do heavy gripping with his right hand. He could peg washing out on the line but had difficulty carrying the basket with his right hand and was unable to perform heavy duties such as hammering or chopping or any other activities that required him to have a strong grip with his right hand.

(b) The primary judge's findings

At [56] of her reasons the primary judge noted the appellant's submission that the severity of the respondent's non-economic loss as a proportion of a most extreme case was 20 per cent. At [67] she set out the submission of the respondent that she should find that the severity of his non-economic loss as a proportion of a most extreme case was 35 per cent. Her Honour noted the respondent's submission that the undisputed evidence was that there will be no improvement in either the pathology or the respondent's capacity to use his wrist which, as he was right hand dominant, was catastrophic for him. Further, the fact that arthritis had already started to develop and would continue to do so would lead to associated pain, stiffness and decreased function. His inability to be the earner of the household had caused him to lose his self esteem including the fact that he had not been able to return to most sports which he had formerly enjoyed. Furthermore, his wrist injury was undiagnosed for a lengthy period which led him to suffering depression and a reduction in his ability to interact with his children. The appellant accepted that the above facts were all correct at the time of trial.

Her Honour concluded (at [68]) that for the reasons advanced by the respondent, she found the severity of his non-economic loss as a proportion of a most extreme case to be 30 per cent.

(c) The appellant's submissions

The appellant submitted that the relevant injuries in the present case were a fractured finger which had healed by the time of trial and a tear to the ligament of the right wrist which had troubled the respondent from the date of the accident until late 2010 but which had very significantly improved as a consequence of the surgery performed by Dr Meads in May 2010. Although it was asserted, and his general practitioner opined, that the respondent suffered from depression, the respondent had not tendered any specialist psychiatric or psychological evidence to corroborate that condition.

At trial the respondent had agreed that there had been an 80 to 90 per cent improvement of his wrist since his surgery in May 2010 although it was not perfect. It was therefore submitted that that evidence indicated that the respondent's ongoing injuries and disabilities, while not trivial, were towards the bottom of the range when it came to the assessment of non-economic loss.

It was therefore submitted that the primary judge's assessment of 30 per cent of an extreme case was manifestly excessive. Her Honour's finding, in effect, was that a ligamentous injury to the respondent's right hand amounted to a shade under a third of a most extreme case. Reference was made to the following passage from the judgment of Sheppard AJA, with whom Beazley JA agreed, in Kurrie v Azouri (1998) 28 MR 406 at 413 where his Honour said:

"The expression 'a most extreme case' requires some discussion. It enables one to provide oneself with the yardstick as to what the legislature had in mind. A court considering the question will need to contemplate what in practical terms is embraced by 'a most extreme case'. Immediately one considers such a case, one thinks of cases of quadriplegia, perhaps some serious cases of paraplegia, cases of serious brain damage and, perhaps, some cases of extremely serious scarring and disfigurement caused, especially to young children, by scalding or burning. No doubt there are others. But even some cases falling within the categories I have instanced would not necessarily justify the description of a most extreme case."

His Honour referred the court to a number of cases of which it is only necessary to refer in detail to one, namely, Owners - Strata Plan 156 v Gray [2004] NSWCA 304. In that case the plaintiff had fallen and injured her ankle. She presented approximately ten months after the accident with ongoing pain, mainly laterally, with an inability to wear all types of shoes. She was not able to run on the beach or walk distances along the beach and was tentative walking around the rocks. She could not play physical sport involving running or twisting/turning. When examined there was some loss of dorsi-flexion but no undue swelling. The medical opinion was that she had sustained significant ligamentous injury to the left ankle as a result of the fall. It was likely there had been some deltoid ligament strain medially with development of some degree of post traumatic synovitis at the ankle joint. No surgical intervention was indicated. The evidence established that she had persisting symptoms with some inefficiency in function. As she was a keen sportswoman she felt significant restrictions in both her leisure and work activities. The trial judge found that the severity of her injuries should be assessed as 33 per cent of a most extreme case.

Sheller JA, with whom Gzell J agreed, accepted that the plaintiff's injury was, in lay terms, a serious sprain of the left ankle. However she had significantly adjusted to her injury and had only had a short time off work. At [38] his Honour referred to the decision of this Court in Kurrie v Azouri citing a number of passages from the judgment of Sheppard AJA including that which I have recorded at [72] above. Sheller JA noted (at [40]) that in Kurrie the principal injury the plaintiff suffered was a severe laceration to her lower right leg which left her with permanent scarring. It was at the site of the right leg commencing just below the knee and extending a considerable distance down the leg. There was decreased sensation and parathesia to deep palpation in the area of skin roughly enclosed by the two limbs of the scar. The scar had a psychological effect on the plaintiff inhibiting significantly her normal leisure and social activity. Even though firmly healed the area of the scar could be considered to be more susceptible to future breakdown in the event of the occurrence of vascular or lymphatic disturbance of the limb later in life. It was not possible to eliminate the scar though it would have been possible to improve its general appearance. Sheller JA noted that in these circumstances Sheppard AJA considered that an appropriate percentage was 18 per cent of a most extreme case.

Sheller JA then continued (at [41]):

"In my opinion, to apply the language of the majority in House v The King (1936) 55 CLR 499 at 505, upon the facts Judge Graham's decision that the severity of the non-economic loss suffered by the plaintiff as 33 percent of a most extreme case was so unreasonable and plainly unjust that it must be inferred that in some way his Honour failed properly to exercise the discretion reposed in him in making the determination he did. One need say no more than state that a person suffering the injury to the left ankle which the plaintiff suffered, with the described consequences in terms of present and future disability, pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement, could not reasonably be regarded as representing 33 percent of the severity of the non-economic loss (as a proportion of a most extreme case) comparing the plaintiff's non-economic loss with that of persons affected by injuries such as those described by Sheppard AJA."

At [43] his Honour reduced the trial judge's assessment of the plaintiff's non-economic loss as a proportion of a most extreme case to 20 per cent.

It was therefore submitted that the present was a clear case where the discretion of the trial judge had miscarried. Her Honour had failed to consider the authorities with which she had been provided contrary to s 17A(1) of the CL Act which empowers a court when determining damages for non-economic loss to refer to earlier decisions of that court or other courts for the purpose of establishing the appropriate award in the proceedings. However, I would note that at [69] her Honour said:

"By reference to a number of cases which were provided to me, it was submitted that I would find that the severity of the plaintiff's non-economic as a proportion of the most extreme case is 20 per cent."

Accordingly it is clear that her Honour did refer to the cases which were provided to her a guide to the appropriate percentage to be adopted in the present case.

(d) The respondent's submissions

The respondent referred the Court to the judgment of Priestley JA in Moran v McMahon [1985] 3 NSWLR 700 at 722-723 where his Honour set out the principles relating to the evaluation of non-economic loss. Furthermore it was pressed upon us that this Court should not interfere with the primary judge's assessment given what Dixon J had said in Lee Transport Co Limited v Watson (1940) 64 CLR 1 at 13 (cited by Priestley JA in Moran at 716-717) to the effect that a court should not interfere in an assessment such as that involved in determining non-economic loss unless

"a very great disparity exists between the amount which ought, in it's judgment, to have been awarded and that which has been fixed; if it is 'convinced ... that the amount awarded was so extremely high or so very small as to make it, in the judgment of this court, an entirely erroneous estimate of the damage to which the plaintiff is entitled.'"

At 718 Priestley JA referred to the following passage from the joint judgment of Dixon CJ and Kitto J in Miller v Jennings (1954) 92 CLR 190 at 197:

"The appeal must depend simply upon the answer to what must be the ultimate question, namely whether the compensation assessed is so inadequate as to be beyond the limits of what a sound discretionary judgment could reasonably adopt. We do not doubt that the amount of the compensation awarded is low and we have had some hesitation concerning our decision but we do not think that it is so inadequate as to justify us in reviewing the learned judge's assessment. It cannot be described as outside the limits of what a sound discretionary judgment could reasonably adopt."

The Court was also referred to the decision of the Full Court of the Supreme Court of the Australian Capital Territory in Sherwood v Guneser (1992) 110 FLR 459 where the Court (Miles CJ, Gallop and Higgins JJ) applied (at 464) what Priestley JA had said in Moran . The following passage in Sherwood (at 466) was pressed upon us:

"In our view, the Master in comparing what he found to have happened [the respondent had not earned income since his injury] was what was likely to have happened [that he might have been incapacitated from earning income by degeneration or some other injury] was bound to take into account his estimate of the respondent as he saw him, but as the result of his own observation of the respondent in the witness box and on the rest of the evidence before him. In this respect the Master enjoyed an advantage which this Court does not have. The appeal is not one in which the Court is free simply to substitute its own assessment of a hypothetical evaluation of the respondent's past earning capacity since the date of injury."

It was submitted that although this passage was stated in the context of economic loss, it equally applied to the assessment of non-economic loss. In other words, the primary judge had the advantage of hearing the respondent's evidence and observing him in the witness box which this Court does not have. However, we were not referred to any particular part of the respondent's evidence which would indicate that the primary judge had an advantage which we do not. Both parties relied essentially upon the medical evidence which took the form of reports upon which none of the authors were cross-examined.

(e) The primary judge's award was excessive

In my opinion it cannot be gainsaid that although the respondent suffered quite a serious injury to his right wrist, apart from its effect upon his earning capacity, it has improved to the point where he is generally pain free unless he lifts a heavy object or jars his wrist or otherwise subjects it to some form of trauma. True it is that he now cannot perform some of the social, domestic and recreational activities which he performed before the injury and that he suffers a degree of depression for which he takes anti-depressant medication as a consequence of his inability to fulfil the role which he performed for and on behalf of his family prior to the accident. Furthermore, I have not overlooked the evidence of Dr Hyde Page that the overall prognosis is that he will develop degenerative changes in the wrist joint with associated pain, stiffness and decreased function.

I accept the submission of the respondent that the restraint to be exercised by an appellate court before interfering with what is essentially a discretionary judgment, sets a high bar which an appellant must overcome in order to justify appellate intervention: cf Dell v Dalton (1991) 23 NSWLR 528 at 533G - 534B per Handley JA, with whom Kirby P and Priestley JA agreed. However, that bar has been overcome in the present case. In my opinion the upper limit of the severity of the respondent's injuries as a proportion of a most extreme case was less than the 30 per cent adopted by the primary judge. Accordingly, her assessment at that figure was manifestly excessive in that it went beyond the limits of what a sound discretionary judgment could reasonably adopt.

In my view the appropriate percentage to be adopted which reflects the severity of the respondent's injuries and their impact upon his life as a proportion of a most extreme case is 25 per cent. The damages for non-economic loss to which the respondent is therefore entitled is, according to the Table to s 16 of the CL Act , 6.5 per cent of the maximum amount that may be awarded for non-economic loss which, the parties agreed, was the sum of $520,000. Accordingly, the non-economic loss of the respondent should be assessed in the sum of $33,800.00.

Past economic loss

(a) The relevant evidence

The respondent was born on 12 July 1972 and is, as already noted, right hand dominant. At the time of trial he was married with two children. He obtained his school certificate in 1989. After leaving school he worked as a labourer for a banana producer for three years and then spent 15 years working at a blueberry farm during the harvesting season, doing other farm work in the off season. At some stage he started working for a David Nunn performing demolition work. In 2001, needing a permanent job in order to obtain a bank loan, he registered with APS. That company found him work with Big River Timber who after three months employed him on a permanent basis. The work he performed for that company was of a heavy physical nature. He remained in the employ of Big River Timber for two years but as he found the shift work nature of the job unworkable given the tender age of his children, he resigned and returned to demolition work. After two years performing that work he became concerned about the dangers of asbestos and so registered again with APS. That company found him casual work with the appellant in 2007.

In late 2007 the respondent's father became ill and he took time of work to look after him. His father died in January 2008 and he thereafter looked after his mother. However, at some point in February 2008 he returned to work. Between then and October 2008 APS had a shortage of work as a consequence whereof he did little work particularly between mid-June 2008 and 22 October 2008 when he commenced working again for the appellant.

The evidence established that for the period 1 January to 30 October 2008 the respondent earned $14,000 gross. This was in large measure due to the fact that between June and October he was essentially out of work. On the other hand, he worked practically full time during 2007. It would appear that for that year the primary judge determined that the respondent earned an average of $750.87 net per week.

(b) The findings of the primary judge

At [78] of her reasons the primary judge noted that there was no dispute that there should be an award for past economic loss. However, the appellant had submitted first, that any amount awarded should be based upon the respondent's 2008 earnings rather than his 2007 earnings and, secondly, as the medical evidence indicated, by November 2010 the respondent had some earning capacity as a consequence whereof she should only allow him 75 per cent of what she found would otherwise have been his earnings for the period 2 November 2010 to the date of trial.

At [79] her Honour noted the submission of the respondent that she should accept one of three scenarios. The first was that the respondent would have been employed by the appellant soon after 30 October 2008 on a permanent basis. That scenario was based upon the following evidence in chief of the respondent upon which he was not cross-examined:

"Q. Did you ever have any discussion with anybody about future employment with the council?

A. Yes.

Q. Who was that?

A. Chris Clausen and Reece Luxton.

Q. When was that in relation to your injury?

A. Only weeks before it - a week, if that.

Q. What did Chris Clausen say about future employment?

A. "Well, you missed out on the last two positions that came through and you'll be up for the next one and we'll give you coaching skills to get this position."

The second scenario was that past economic loss should be based upon the respondent's average gross weekly earnings for the period 2005-2007 and the third was that element of damage should be based upon his gross weekly earnings for 2007.

At [81] her Honour rejected the appellant's submission that in 2007 the respondent had made a conscious decision to get out of demolition work and by placing himself in the hands of APS had obviously intended to accept a less secure employment future. Nor did her Honour consider that his 2008 earnings were an accurate reflection of what he would have earned in the period 30 October 2008 to the date of trial had the accident not occurred. Her Honour considered (at [82]) that 2008 was an unusual year, not just for the respondent but also for a business such as that of APS. It was the year of the global financial crisis and it was during that year that the respondent was suffering from grief associated with his father's death in January and the need to assist his mother in her changed situation.

At [84] her Honour expressed her satisfaction that if the respondent had perceived that he was not going to be given a satisfactory number of hours of work by APS, he would have moved on to a job that would allow him to work on a full time basis. Accordingly, she considered that his earnings for 2007 were a more accurate reflection of what would have been his earnings between the date of his injury and trial. She was also satisfied that the respondent had mitigated his loss with the consequence that there should be no discount upon the basis that he would have had some earning capacity between November 2010 and the date of trial. Accordingly, her Honour determined the respondent's past economic loss in the sum of $92,357.01 being $750.87 net per week for 123 weeks plus nine per cent superannuation in the sum of $8,312.13 resulting in a total amount of damages for past economic loss in the sum of $100,669.14.

(c) The parties' submissions

The appellant submitted that her Honour erred in finding that the respondent had not made a conscious decision to get out of demolition work. In this respect her Honour was incorrect for he left his employ as a demolition labourer due to his concern with respect to asbestos contamination to which his demolition work exposed him. Be this as it may, the evidence established that he thereupon again registered with APS resulting in casual work with the appellant in 2007.

It was further submitted that once he placed himself in the hands of APS he took his chances of obtaining any permanent or semi-permanent work and thus clearly chose a less secure path than he had enjoyed in 2007 and the two years prior thereto.

The unchallenged evidence was that between 31 October 2007 and 29 October 2008 the respondent worked a total of 778.3 hours or an average of 14.68 hours per week. However, the schedule of hours from which these figures were extracted indicated that from the 31 October 2007 to 19 December 2007 he was working an average of approximately 32 hours per week. He was then out of work from 2 January 2008 to 6 February 2008 after which he was engaged in work from 13 February 2008 to 18 June 2008 averaging approximately 22 hours per week. Apart from one week when he worked 7.6 hours he was unemployed from 25 June 2008 to 22 October 2008. In the week ending 29 October 2008 he worked 38 hours.

The respondent did not produce any tax returns for the year 2008 but on the basis of some pay slips which he did produce it was calculated that he earned approximately $14,000 gross in the year preceding the accident which equated to a net weekly income of approximately $267.15 per week. It was submitted that that figure should be used as a base figure for the two years between the date of the accident and 2 November 2010 resulting in a past economic loss of $27,814.80. From that date until trial (a period of 16 weeks) it was submitted that the respondent had regained 25 per cent of his earning capacity. Accordingly, it was submitted that the appropriate figure to adopt for that period was $215 per week, a total of $3,209.34 making a total for past economic loss of $31,024.24.

It was further submitted that her Honour was incorrect in speculating as to the effect of the global financial crisis upon the operations of APS given that no evidence was called from that company. In my view that is correct. It was submitted, and not contested, that the figure of $750.87 net per week adopted by the primary judge was a rate of weekly pay based upon a regular 38 hour week which the respondent had enjoyed while being employed by Mr Walsh. It was contended that that was not an appropriate yardstick given the respondent's economic history. Accordingly, her Honour's adoption of a wage earned by the respondent in 2007 had no rational basis given the nature of his employment record as at the date of the accident.

The respondent submitted that the evidence established that he was a diligent and good worker who APS was keen to employ if it had work for him to do. He had good communication skills, was willing and got on well with his fellow employees. It was submitted that her Honour was entitled to have regard to the respondent's unblemished industrial record, his employability and his determination to obtain full time work. Accordingly, these considerations entitled her to find that the respondent's earnings in the financial year 2008 would not provide an accurate starting point for the calculation of the financial loss consequent upon the diminution of his earning capacity. The court was bound to take into account that his capacity to earn had not been fully exploited in the 2008 calendar year.

(d) The primary judge erred in her assessment of past economic loss

One of the difficulties with the respondent's submissions is that there was no evidence that he looked for work between June 2008 and October 2008, a period when he earned no income. If he was as industrious as was submitted on his behalf, then one would have expected there to have been evidence as to his efforts to obtain either full or part-time employment during that period. There was none. The respondent submitted that the question was whether it was rational for her Honour to take his 2007 earnings when he was in full time employment as a starting point for the assessment of past economic loss. If this is the correct question then in my view the answer to it is in the negative. Once he placed himself in the hands of APS, then unless a full time job became available, he was destined to work on a casual basis only although that would include working for a period of consecutive weeks interspersed with periods of unemployment or underemployment.

In my opinion a more accurate reflection of the respondent's earning capacity as at the date of his accident was the amount that he was being paid by APS for his employment by the appellant, namely, $20.52 per hour. That is a gross figure. On the basis of a 38 hour week, it translates, in round figures, to $780 per week gross. The tax payable on that amount is $110 thus giving a net of $670 per week. In my view that is an appropriate figure to take as a starting point. I do not consider that the figure $750.87 net, being the amount earned per week by the respondent when employed full-time as a demolition labourer in 2007 as being a proper starting point for the calculation of the respondent's past economic loss.

I should add that I do not consider that the rate of $28.55 per hour which was paid by the appellant to APS for the respondent's services is a more appropriate gross hourly rate to adopt. This is because I would infer that that figure includes allowance for workers compensation premiums, overhead costs and superannuation borne by APS rather than the appellant.

However, I would not accede to the appellant's submission that there should be some discount for the respondent's limited earning capacity said to have existed between November 2010 and the date of trial. I therefore would not make any allowance for that capacity which, in my opinion, based on the medical evidence was more theoretical than real.

However I would not have awarded the respondent $670 net per week for the period of 123 weeks without some discount to take account of the possibility that he would not have been able to obtain full time employment throughout that period. In my view there should be a discount of 20 per cent to take account of that possibility. In this respect I have not overlooked the respondent's evidence which I have extracted at [89] above with respect to his possible full time employment with the appellant. That may have come about or it may not. The 20 per cent discount will take account of the possibility that Mr Clausen's prognostication as to the appellant engaging the respondent on a full time basis might not have eventuated.

For the foregoing reasons I would assess the appellant's past economic loss at the rate of $536 per week for 123 weeks plus 9 per cent superannuation at $48.24 per week, giving a total of $71,861.52.

Future economic loss

(a) The findings of the primary judge

The appellant accepted that there should be an award of damages for future economic loss due to the impairment of the respondent's earning capacity but submitted that it should be a cushion of $75,000. It was contended that her Honour would find that the respondent was a versatile man who was not unintelligent, who had good communication skills and would be able to undertake a number of positions including retail work and weed spraying, although it was accepted that in relation to the latter job he may need to rely upon his fellow workers to assist him to fill his backpack with the spray. The appellant further submitted to her Honour that she would accept that the respondent would not be sitting around twiddling his thumbs in the future but that he had the drive and attitude to retrain himself.

On the other hand it was submitted by the respondent that the present was not a cushion case. It was contended that although the respondent was unlikely to be unemployed for the rest of his life, as he lived in Grafton and as all the jobs he had performed in the past involved heavy labouring work which he was now unable to perform, her Honour would conclude that the respondent would only be able to engage in casual intermittent employment in the future with the consequence that an appropriate award would be something like 75 per cent of what she found to be his earnings for the future but for his injuries.

Accepting that the respondent would have continued to work until he was entitled to claim the pension at the age of 67, her Honour concluded (at [95]) that the respondent would struggle to achieve more than casual intermittent work. Although he is a man who gets his sense of self from his work and so will gain some employment, the work he can perform is restricted. Given his age, lack of experience in areas where his physical restrictions will not be an impediment, there would be a limit on the type of work he would be able to perform. In those circumstances her Honour awarded the respondent $350 per week until he turned 67 less 15 per cent for vicissitudes. With superannuation, the total her Honour awarded for future economic loss was $236,988.

(b) The appellant's submissions

The appellant submitted that the future loss of $350 per week as found by the primary judge was informed by her erroneous adoption of the respondent's 2007 net weekly wage as a starting point. Thus in awarding him $350 per week for the remainder of his working life in circumstances where his pre-accident earnings were assessed at $750.87 per week, the primary judge had awarded him just under half of those earnings. It was submitted that his residual earning capacity well exceeded one-half of his pre-accident earnings.

The appellant accepted that the medical evidence post the respondent's surgery could be summarised to the following effect. First, that he is capable of returning to work although he probably needs permanently modified activities as he does not have normal strength; secondly, he is fit to return to the sort of activity involved in spraying weeds although he cannot perform activities which require him to do heavy gripping with his right hand.

It was then submitted that the respondent himself was far more optimistic about his future economic prospects than those reflected in her Honour's reasons. The appellant then set out in its written submissions some 35 aspects of the respondent's evidence which can be summarised as follows. Although unable to perform any labouring work, the respondent said he was prepared to train himself up and undertake any courses needed to better himself provided it related to work that did not involve labouring, heavy lifting or undue use of his right hand. Thus he said he could work in a service station, behind a counter operating a cash register or on public transport as a ticket collector. He could, he thought, work in various retail outlets provided it did not involve too much lifting; he could work as a shop assistant or in the security industry as a security monitor; he could drive a truck; he could continue to spray weeds providing he had a partner who could fill his backpack; he could drive a forklift and he could act as a foreman.

It was submitted that the respondent was obviously motivated to work. The worst of his condition was behind him and from his own evidence there was an array of jobs that he considered that he was capable of performing. Whilst the appellant accepted that the respondent was no longer fit for very heavy labouring work, this did not mean that his earning capacity had been essentially halved as found by the primary judge. In so finding she significantly over-compensated the respondent with respect to future economic loss. Given his vocational versatility and the concessions he made in cross-examination with respect to future vocational options, the appropriate way to compensate him for future economic loss was by way of buffer in the amount of $75,000.

(c) The respondent's submissions

The respondent submitted that residual earning capacity was relevant to the extent to which it may be productive of financial gain. Although it was all very well to detail evidence of the respondent's desires or the widely varied types of occupations he may be prepared to try, in the absence of actual evidence as to the availability of any of these jobs in the labour market in which he found himself, a theoretical list of possible alternative occupations was of little assistance in assessing the damages properly payable.

It was submitted that the primary judge had considered that the respondent would struggle to obtain more than casual intermittent work. This was a finding which was well open on the evidence and did not bespeak error. There was nothing in the appellant's detailed submissions which demonstrated that her Honour's assessment was appellably erroneous. Such an assessment was largely based upon her Honour's forensic advantage in observing the respondent in the witness box which cannot be disturbed except in exceptional circumstances.

In any event, the primary judge's implicit assessment was that the respondent was likely to earn $400 per week net on average on a casual, intermittent basis which was favourable to the appellant. It was finally submitted that it was likely that, but for his injuries, the respondent would have been in full time employment more than two years after his accident and, therefore, that damages should be awarded on that basis.

(d) The primary judge's award for future economic loss was excessive

In my opinion the primary judge made one significant error in her assessment of the appellant's future economic loss. That was her implicit adoption of $750.87 net per week for the purposes of determining the respondent's residual earning capacity. It seems that, in effect, she has adopted a figure of $350 per week upon the basis that it is approximately 50 per cent (46.7 per cent to be precise) of the respondent's pre-accident earnings. In my view the starting point should be the figure of $670 net per week, which I have adopted for the purpose of determining the respondent's past economic loss. I would accept that his loss of earning capacity is approximately 50 per cent of that figure. I would therefore adopt the amount of $335 per week as the appropriate future economic loss of the respondent as a consequence of the accident. Using the 5 per cent tables for a period of 28 years, the resultant figure is $266,660.

However there is still the question of whether the respondent would have achieved full time employment from the time of trial until the time of retirement given the nature of the work he had been performing prior to the accident, namely, outdoor manual labouring. I have therefore given consideration as to whether the normal 15 per cent for vicissitudes should be increased to take into account the possibility that he would have been faced with periods of unemployment.

In my opinion there should be some further discount to take account of that possibility in the light of the respondent's employment record. I would therefore increase the 15 per cent for vicissitudes to 25 per cent.

Accordingly I would award the respondent damages for future economic loss in the sum of $199,995 together with superannuation of $17,999.55.

Past attendant care services

(a) The findings of the primary judge

At [98] of her reasons the primary judge noted the appellant's submission that the respondent was not eligible for this head of damage as he had not brought himself within the requirements of s 15(3) of the CL Act in that he had not proved that gratuitous attendant care services were provided for at least six hours per week and for a period of at least six months. At the outset I should indicate that it was submitted that her Honour had stated the wrong test as the subsection requires that such services be provided for a period of at least six consecutive months.

Her Honour found at [100] that the requirements of the subsection were satisfied. The services that she was satisfied the respondent performed prior to the accident and which were performed by someone other than him after the accident for a period of at least six months were: some cooking, cleaning up after meals, sweeping, mopping, vacuuming, cleaning windows and cobwebbing, laundry, major maintenance tasks, obtaining fuel for the wood heater, maintaining the swimming pool and mowing.

At [102] she indicated she was satisfied as to the following matters:

from the day of the injury until approx 10 January 2009, as the plaintiff was in a cast and unable to attend to his personal needs, his wife performed these tasks for him and they took her 3.5 hours each week;

from 26 May 2010 for 8 weeks while the plaintiff was in a plaster cast and unable to attend to his personal needs, his wife performed those tasks for him and they took her 3.5 hours each week;

from the day of injury to 19 March 2009 the plaintiffs wife drove the plaintiff to medical appointments, and this took an average of 2.5 hours a week:

after the operation on 26 May 2010 and for 12 weeks Joanne McPherson drove the plaintiff to medical appointments and that this took an average of 2 hours a week;

from the date of the injury to the present, people other than the plaintiff have performed domestic tasks that the plaintiff performed before the accident, including some cooking and cleaning up after meals, sweeping, mopping, vacuuming, cleaning windows and cob webbing, laundry, major maintenance tasks, getting fuel for the wood heater, maintaining the swimming pool, and mowing. In the period between the date of injury and now, it was Joanne MacPherson who performed most of those tasks, although other people provided wood, and did the mowing. Those tasks took 8 hours per week between 30 October 2008 and 31 October 2010 and 5 hours per week from 1 November 2010 until the present.

Accordingly her Honour indicated that she proposed to allow $25,399.89 for past gratuitous attendant care services provided to the respondent.

(b) The parties' submissions

The appellant did not challenge any of the matters set out in the five dot points in [102] of her Honour's reasons except for the last sentence of the last dot point. Although the appellant made a number of assertions in its written submissions, in oral argument its submissions were generally confined to the contention that her Honour had erred in finding that past gratuitous attendant care services had been provided to the respondent for six consecutive months. It was not suggested that if that requirement were satisfied, that those services were for less than six hours per week.

The appellant submitted that the evidence established that such services were provided from 30 October 2008 to 20 January 2009, a period of only two months and two days. It contended that there was no evidence of any such services being provided between 20 January 2009 and 26 May 2010, so that s 15(3)(b) was not satisfied.

The respondent submitted that even leaving aside the evidence of Ms Jane Berger, occupational therapist, which had been criticised by the appellant, nevertheless the evidence of the respondent and his wife, which was unchallenged, was sufficient to establish that the relevant services were provided for at least six consecutive months. It is therefore necessary to refer to that evidence.

The respondent's evidence went no further than establishing that his wife provided domestic services such as assisting him wash, shower, dress, eat, etc from 30 October 2008 to 20 January 2009 and for eight weeks after his surgery on 26 May 2010. However, his wife's evidence in chief was that on 30 October 2008 to 20 January 2009 she provided the respondent with personal care such as assisting him shave, doing his hair, helping him wash, helping him chop up his food, driving him to appointments and other domestic activities such as moving furniture to vacuum behind which he had previously performed and mopping which he had also previously performed. She was then asked whether she had continued to do extra domestic work right up to the date of trial to which she responded in the affirmative.

Mrs Macpherson was asked whether she had provided a similar level of personal car during the eight weeks that he was in plaster after surgery in May 2010 to which she responded in the affirmative. The following exchange then occurred (at Black 106):

Q. And then after the plaster was removed was their a long period of time where he was unable to use his right hand at all?

A. Yes.

Q. Did you have to provide some personal assistance during that time?

A. Yes.

Q. What sort of personal assistance?

A. Same thing, cutting up his food and shaving and helping him do his dentures and things like that.

Q. Did that continue up to about September of that year?

A. Yes.

Q. And since September 2010 to date have you been doing extra duties because of his inability to help?

A. Yes that's correct.

The import of the foregoing evidence is that the respondent's plaster cast was removed eight weeks after surgery, that is, on or about 26 July 2010. Mrs Macpherson then provided personal assistance to the respondent not only from 26 May 2010 to the time his plaster cast was removed in July 2010 but thereafter up until September 2010 and since September to the date of trial. This is clearly a period in excess of six consecutive months. She was not cross-examined.

It follows in my opinion that the unchallenged evidence of Mrs Macpherson establishes that gratuitous attendant care services were provided by her to the respondent at least from the time he came out of hospital after surgery on 26 May 2010 until the date of trial on 16 February 2011, a period exceeding six consecutive months. It follows in my opinion that the evidence satisfied the requirements of s 15(3)(b) of the CL Act . I would therefore reject the appellant's challenge to the primary judge's assessment of past gratuitous attendant care services.

Conclusion

In my opinion the appellant has failed in its challenge with respect to the issues of liability, apportionment and past gratuitous attendant care services. It has succeeded, although not to the extent for which it contended, with respect to the awards for non-economic loss, past economic loss and future economic loss. It follows that each party has had some success on the appeal. In these circumstances, in my opinion there should be no order as to the costs of the appeal although the order of the primary judge with respect to the costs of the trial should stand.

It also follows from my findings that the damages attributed by the primary judge to the respondent will be reduced, where applicable, to the following figures:

Non economic loss $33,800.00

Past out of pockets 38,994.32

Future out of pockets 18,000.00

Past economic loss 65,928.00

Past superannuation 5,933.52

Future economic loss 199,995.00

Future superannuation 17,999.55

Past care 25,399.89

Future care 79,443.00

Fox and Wood 1,810.18

Total $487,303.46

The total amount referred to in the preceding paragraph must be reduced by 15 per cent to reflect the provisions of s 151Z of the Workers Compensation Act . The resultant figure is $414,207.94.

I would therefore propose the following orders:

(a) Appeal allowed in part;

(b) Set aside the verdict and judgment of her Honour Judge Flannery SC of 16 March 2011 in the sum of $536,880.47 and substitute therefor a verdict and judgment for the respondent against the appellant in the sum of $414,207.94.

**********

Decision last updated: 22 December 2011

Medium Neutral Citation:	Clarence Valley Council v Macpherson [2011] NSWCA 422
Hearing dates:	24 November 2011
Decision date:	22 December 2011
Before:	Young JA at 1; Sackville AJA at 2; Tobias AJA at 3
Decision:	(a) Appeal allowed in part; (b) Set aside the verdict and judgment of her Honour Judge Flannery SC of 16 March 2011 in the sum of $536,880.47 and substitute therefor a verdict and judgment for the respondent against the appellant in the sum of $414,207.94. (c) Each party to bear their own costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	TORTS - negligence - personal injury - chainsaw - host employer - labour hire company - existence of duty of care - breach of duty of care - apportionment - assessment of damages - non economic loss - past economic loss - future economic loss - past attendant care services
Legislation Cited:	Civil Liability Act 2002 Workers Compensation Act 1987
Cases Cited:	Czatyrko v Edith Cowen University [2005] HCA 14; (2005) 214 ALR 349; (2005) 79 ALJR 839 Dell v Dalton (1991) 23 NSWLR 528 Jakovich Transport and Earthmoving Pty Limited v Spiral Tubemakers Pty Limited (2000) 31 MVR 141 Kurrie v Azouri (1998) 28 MR 406 Lee Transport Co Limited v Watson (1940) 64 CLR 1 Moran v McMahon [1985] 3 NSWLR 700 Miller v Jennings (1954) 92 CLR 190 Owners - Strata Plan 156 v Gray [2004] NSWCA 304 Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34; (1985) 59 ALJR 492 Sherwood v Guneser (1992) 110 FLR 459 TNT Australia Pty Limited v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1
Category:	Principal judgment
Parties:	Appellant: CLARENCE VALLEY COUNCIL Respondent: Robert John MACPHERSON
Representation:	Counsel: Appellant: P G Mahony SC/ S E McCarthy Respondent: S G Campbell SC/ R Harrington Solicitors: Appellant: DLA Piper Respondent: Lee Sames Egan
File Number(s):	CA 2011/119744
Decision under appeal	Date of Decision: 2011-03-16 00:00:00 Before: Flannery DCJ File Number(s): 2010/101487