Gamma Illumination Pty Limited v Cvrkalj

[2003] NSWCA 237

CITATION:	Gamma Illumination Pty Limited v Cvrkalj [2003] NSWCA 237
HEARING DATE(S):	19/08/03
JUDGMENT DATE:	4 September 2003
JUDGMENT OF:	Meagher JA at 1; Handley JA at 2; Ipp JA at 3
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	EVIDENCE - Reliability of plaintiff's evidence at trial - Whether trial judge erred in preferring the respondent's expert to the appellant's expert witness - Whether trial judge erred in rejecting the evidence of an expert witness for the appellant - Whether the trial judge should have disbelieved the respondent entirely where respondent lied about certain matters - NEGLIGENCE - Causation - Whether trial judge erred in finding that the work practices followed by the respondent caused her injuries - DAMAGES - Whether trial judge erred in assessment of damages. ND
CASES CITED:	Sullivan v Gordon (1999) 47 NSWLR 319
PARTIES :	Gamma Illumination Pty Limited (Appellant) Milica Cvrkalj (Respondent)
FILE NUMBER(S):	CA 40746/02
COUNSEL:	J Hislop QC/J Chapman (Appellant) C Hoeben SC/C Thompson (Respondent)
SOLICITORS:	McCulloch & Buggy (Appellant) Carroll & O'Dea (Respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 6684/00
LOWER COURT JUDICIAL OFFICER :	Phegan DCJ

CA 40746/02
DC 6684/00

MEAGHER JA
HANDLEY JA
IPP JA

Thursday 4 September 2003

GAMMA ILLUMINATION PTY LIMITED v MILICA CVRKALJ

Judgment

1 MEAGHER JA: I agree with Ipp JA.

2 HANDLEY JA: I agree with Ipp JA

3 IPP JA: This appeal concerns a claim for personal injuries brought by the respondent in the District Court. Between 9 February 1989 and 25 February 1998 the appellant employed the respondent as a process worker. During this period she participated in the assembly of light fittings at the appellant’s factories in Croydon Park and Burwood. The respondent alleged that she suffered repetitive strain injuries as a consequence of the work she was required by the appellant to do. This involved the repeated carrying out of gripping and twisting movements with her hands, wrists and fingers.

4 The respondent alleged that the appellant was in breach of its duty to maintain a safe system of work. The trial judge, Phegan DCJ, held that the appellant had breached that duty, particularly by failing to train the respondent how to do her work so as to avoid the likelihood of repetitive strain injury. The respondent was awarded damages of $430,200.

5 In this appeal the appellant challenges the findings of the trial judge both as to liability and as to the quantum of damages.

6 A major factor in the trial was the lack of reliability of the respondent’s evidence. His Honour pointed out that in many respects her evidence was untruthful or inaccurate. Nevertheless, in careful and detailed reasons, the judge explained why, notwithstanding that the respondent had told deliberate lies in relation to important issues, he gave some credence to aspects of her evidence. His Honour’s willingness to attach some weight to the respondent’s evidence underlay virtually every one of the appellant’s arguments on appeal.

7 I turn firstly to the issue of liability. Here the main contest was between the appellant’s witness Miss Head, an ergonomist, and the respondent’s expert Mr Hely, who was also an ergonomist. Both were cross-examined. Both were highly experienced in their field.

8 Mr Hely’s opinion was that the physical stresses inherent in the respondent’s work, as a whole, were the primary causes of her injuries. He made reference to awkward and stressful postures (particularly at the wrist), the exertion of excessive forces at the fingers, hands and wrist and a very high average work rate.

9 Mr Hely expressed the view that there were a number of reasonable measures available that the appellant could have employed to minimise the risk of injury. These were the provision of more suitable tools, workstations that would eliminate unnecessary postures and movements during the work, and appropriate training. The training would involve instructing the employees:

(a) To take frequent pauses between the various steps needed to perform their work.

(b) To apply appropriate rest, relaxation and exercise methods.

(c) To apply systematic planned task rotation.

10 Mr Hely also provided a review of the relevant literature, including 30 epidemiological studies going back to the mid 1970s. He testified, in effect, that it was foreseeable that, without appropriate preventative measures, injuries of the kind suffered by the respondent would be likely to be sustained.

11 Miss Head’s evidence was diametrically opposed to that of Mr Hely. She was of the opinion that the tasks performed by the respondent were “well designed”. She was of the view that the respondent was provided with “adequate on-the-job training”. She expressed the view that the respondent’s tasks “did not present a hazard to her”.

12 Phegan DCJ preferred the evidence of Mr Hely. Mr Hislop QC (who together with Ms Chapman appeared for the appellant) submitted that his Honour erred in this respect.

13 Mr Hely’s first report recorded information given to him by the respondent as to the nature of the work she had performed, including the frequency of the repetitive actions she was required to undertake. By the time the respondent had completed her oral testimony, it was appreciated that the information on which Mr Hely had relied was false. He then produced a new report. For this report, he relied to a substantial extent on passages of the transcript of the relevant evidence that had been highlighted by the respondent’s solicitors.

14 Mr Hely agreed that frequency and repetition of movements were important factors in arriving at an opinion as to whether the respondent’s injuries were caused by her work, and as to whether her training was defective. Nevertheless, he did not actually see the specific hand movements required and he based his views on inferences he had drawn from descriptions given by the respondent and evidence recorded in the court transcript. He was uncertain as to how often the respondent used particular tools and he did not watch the respondent put items together.

15 Mr Hislop submitted that the matters referred to in the preceding two paragraphs detracted materially from the reliability of Mr Hely’s opinions and his Honour should not have accepted them.

16 I shall first deal with the criticism that Mr Hely obtained his information from selected passages of the transcript. The transcript of Mr Hely’s cross-examination reveals that, in expressing the opinions contained in his second report, he had regard to the material aspects of the evidence of a co-worker of the respondent, Miss Galvan, whose evidence was accepted by his Honour, as well as the evidence of a witness called by the appellant on the issues in question, namely, Mr Daniow. According to Mr Hely, even on the evidence of Mr Daniow, the work practices permitted by the appellant were inappropriate and would have led to injury. Phegan DCJ referred to the figures on which Mr Hely relied and observed:

“These are, I should add, figures which are not only based on the evidence of the plaintiff and Miss Galvan but accord very closely to the estimates of Mr Daniow and therefore add reliability to any conclusions based on those particular levels of output”.

17 In my view, Phegan DCJ did not err in deciding that the essential basis for Mr Hely’s opinions, as expressed in his second report, was properly grounded on the evidence.

18 As to the lack of personal observation by Mr Hely, Mr Hislop’s criticisms are answered by the following explanation given by Mr Hely:

“[I]n my experience, it’s difficult to know precisely the workload of anyone who performs assembly work in a factory where there is a range of different types of work and combinations of orders and so on because it varies quite a lot and for that reason it’s generally not all that productive to try and quantify it down to the last item or unit or part but rather to look for the characteristics of that work and more generally to look at the ranges”.

Mr Hely explained how he established the characteristics of the relevant work and the “ranges” and in my view it was open to his Honour to accept his evidence in these respects.

19 Phegan DCJ gave full reasons for preferring Mr Hely’s evidence to that of Miss Head. His Honour criticised the lack of attention given by Miss Head to the cumulative effect on the respondent of, initially, having been employed by the appellant at its Croydon Park factory and, thereafter, at Burwood. On the evidence, the level of the respondent’s activities while at Croydon Park was far higher and more concentrated than those when she was at Burwood. Miss Head did not give particular attention to this factor and his Honour regarded her omission to do so as significant. In my view he was entitled to come to this conclusion. His Honour also said that Miss Head displayed a disturbing ignorance of much of the relevant literature. Phegan DCJ considered that a weakness in Miss Head’s report was her ready acceptance of what she was told by senior officers of the appellant, namely, “that there was an adequate system of instruction in place”. His Honour said that all the other evidence, including that of Mr Daniow, pointed to the opposite conclusion; there was, in fact, no system of instruction. Moreover, his Honour preferred Mr Hely’s general approach to the assessment of the problem to that of Miss Head.

20 In all the circumstances I am not persuaded by Mr Hislop’s criticisms of his Honour’s reasoning in preferring the opinions of Mr Hely. No error can be discerned from his Honour’s conclusions in this regard. The judge was entitled to accept the opinions expressed by Mr Hely, and that being so, his findings as to breach of duty on the part of the respondent were inevitable.

21 I now turn to the submissions advanced on the appellant’s behalf in regard to the quantum of damages.

22 In 1995 the respondent noticed swelling in her right arm and reported it to the appellant. In 1996 she began to experience symptoms in her wrists. In August 1997 the respondent was diagnosed as suffering from bilateral carpal tunnel syndrome. On 24 November 1997 she underwent a right carpal tunnel release procedure under anaesthetic. Thereafter, she developed symptoms of reflex sympathetic dystrophy that affected her right wrist. On 5 March 1998 she underwent a bone scan that revealed a mild reflex sympathetic dystrophy of the right hand. Her symptoms continued and she underwent a series of stellate ganglion blocks to relieve pain in her right wrist and hand. These involved injections to the neck under local anaesthetic. She said that she became depressed and was otherwise mentally affected by her pain. She received treatment from psychiatrists. Throughout the relevant period after she began to receive the stellate ganglion blocks her condition improved, regressed, improved and regressed again. This pattern appeared to be a continuing one.

23 Mr Hislop accepted that the respondent had sustained a carpal tunnel syndrome and that there were some objective signs of reflex sympathetic dystrophy. He submitted however that those signs suggested that the reflex sympathetic dystrophy was only mild. He submitted that, within a year or so after stellate ganglion blocks were first administered, it should have disappeared. He submitted that the respondent was grossly exaggerating her symptoms and, to the extent that medical practitioners had relied on her, their evidence should be discounted. He went so far as to submit that all the respondent’s medical practitioners, who testified at the trial, had relied on the false information she had given them and Phegan DCJ erred in relying on their opinions.

24 Before examining these submissions in any detail, I shall deal with the appellant’s challenge to Phegan DCJ’s refusal to accept the views of Dr Harvey, a specialist medical practitioner retained by the appellant. Dr Harvey expressed the opinion that the respondent’s injuries were not caused by the work she had performed for the appellant and he expressed considerable scepticism about the reflex sympathetic dystrophy attributed to her by other medical practitioners.

25 Phegan DCJ said that Dr Harvey was intolerant of new ideas and new disciplines such as pain management. He said that Dr Harvey was “somewhat out of touch, being in semi-retirement” (Dr Harvey had not treated patients or undertaken any surgery since the end of 1998).

26 Phegan DCJ considered that the literature to which Mr Hely referred exposed “the weakness of Dr Harvey’s claim that carpal tunnel syndrome could not be caused by repetitive strain from manual assembly work”. He held that Dr Harvey’s conclusion that the respondent’s complaints of pain and disability in her right arm could not be accepted failed to take into account the fact that she was right arm dominant and had spent her working life in unskilled work requiring a measure of manual labour requiring her to use her right arm. His Honour said:

“It would be expected that without some wasting the right forearm would be of greater circumference than the left. The fact that they were found to be approximately equal is evidence that the right arm has fallen into disuse resulting in some wastage”.

Phegan DCJ also relied on the fact that Dr Harvey was virtually alone in the opinions he held.

27 In my view, the matters relied on by Phegan DCJ entitled him to reject the evidence of Dr Harvey.

28 Mr Hislop emphasised three categories of lies relating to significant issues told by the respondent. One concerned her address. She had falsely stated that she was still living at an address where she had resided with her husband whereas, several months prior to the trial she was residing in a different place with another man. This concealment bore particularly upon her general damages (she had claimed that her marriage had been adversely affected by her injuries), and her claims for domestic care. The respondent had completely misled an occupational therapist by taking her to the residence where she had lived with her husband. The respondent pretended that she still lived there and showed the occupational therapist how difficult it was for her to cope with the household arrangements and appliances in that residence. Secondly, Mr Hislop submitted that the respondent had grossly exaggerated her symptoms to all the medical practitioners who had seen her. Thirdly, Mr Hislop pointed out that the respondent had been untruthful about the workload that she had been required to perform. She had exaggerated the number of fittings she had been required to do, the number of tools she had to use and the operations that she had been required to undertake.

29 All in all, Mr Hislop submitted that his Honour erred in believing the respondent to the extent that he did. He argued that, having found that the respondent had lied to the extent described, the judge should have disbelieved the respondent entirely.

30 While Mr Hislop’s submissions as to the lack of credibility on the part of the respondent have force, I am not persuaded that his Honour erred in placing some degree of reliance on her testimony. Phegan DCJ explained carefully why he concluded that in some respects he should attach weight to the respondent’s testimony. It is of course a truism that a judge is entitled to believe parts of the evidence of a witness even though the judge might find that the witness has deliberately lied in many other respects. Careful judges do not necessarily regard witnesses as either always telling the truth or always lying.

31 In support of his submission that his Honour should have placed no reliance at all on the respondent. Mr Hislop referred to the report of Dr Shand, a psychiatrist. Dr Shand, after being advised by the appellant’s solicitors of “significant concessions” that the respondent had allegedly made, expressed the opinion that:

“In the light of this new information … I consider that the plaintiff is either grossly exaggerating or fabricating complaints of both physical and psychiatric disorder”.

32 Phegan DCJ took account of Dr Shand’s views. He said that the respondent’s evidence with regard to her injury and its on-going consequences was “generally at its least convincing”, and observed:

“[I]n that regard I endorse to a substantial extent Dr Shand’s revised opinion”.

This endorsement led his Honour to remark:

“To the extent that medical and other expert opinions were exclusively based on history provided by the plaintiff, those opinions have to be approached with caution”.

33 In relying on Dr Shand, his Honour erred to the benefit of the appellant. Much of the material communicated to Dr Shand by the appellant’s solicitors involved facts not found by his Honour. This substantially detracted from the opinion expressed by Dr Shand.

34 Phegan DCJ recounted in detail those aspects of the respondent’s evidence that he considered to be false. This analysis occupied several pages of his judgment. All the matters to which Mr Hislop referred were mentioned and plainly taken into account by his Honour.

35 When referring to the inconsistencies in the respondent’s evidence, generally, Phegan DCJ said:

“[S]ome of the inconsistencies were so pervasive or fundamental it is impossible to accept that she was entirely innocent of some measure of deception”.

Nevertheless, he concluded:

“I am satisfied on the medical evidence, that the condition of her right arm will continue to be a source of both pain and disability and will certainly not allowed her to return to work of the kind in which she suffered the injury in the first place. Up until now at least, the pain has been sufficiently severe and the disability sufficiently disruptive of the plaintiff’s life, as to cause a degree of psychiatric disorder, but I underline the word ‘degree’, because I do not again accept the extent to which the plaintiff herself suggests she has been affected. There is no doubt at all that her experience with this injury has been disorienting, no doubt partly as a consequence of the obvious disappointment that the carpal tunnel surgery was, rather than a cure for her injury, a precipitating factor in the present condition. While the carpal tunnel syndrome itself was corrected, it was from the time of her surgery that she showed the first signs of symptoms of complex regional pain syndrome.
The very substantial amount of treatment to which she has since been subjected, including the ganglion blocks, which it is generally accepted involve a quite painful process in themselves, has no doubt been a source of very considerable frustration and disappointment to the plaintiff and that such factors may well have at least contributed to, even though they may not be in any sense the sole cause of, an adjustment disorder and a state of quite severe depression at certain times. However, the medical evidence would nonetheless suggest that provided the plaintiff continues to obtain appropriate counselling and provided she responds positively to such counselling and pain management, she should be able to very substantially alleviate the residual symptoms”.

36 A series of medical reports established the existence of objective signs of the respondent’s injuries and supported his Honour’s findings.

37 The testimony of Dr Rosenberg, the treating hand surgeon, was an important part of the respondent’s case. On 24 November 1997, when the right carpal tunnel release was carried out, Dr Rosenberg observed that the nerve was quite pale and atrophic. He said that the procedure “should settle her symptoms rapidly”. Two weeks later the respondent still had some pain and numbness. In February 1998 Dr Rosenberg found that the respondent was hypersensitive along the surgical scar “and proximally along the flexor tendons”. He said that the nerve was “obviously … quite hypersensitive”. He said:

“This can just be part of the recovery of a nerve that has been severely compressed for a long time. Her hand is sweaty and warm and there are no overt signs of a sympathetic dystrophy”.

At this stage, therefore, Dr Rosenberg accepted that the respondent was suffering marked pain but there were no objective signs of a reflex sympathetic dystrophy and the respondent was improving.

38 A month later Dr Rosenberg found that while the respondent had lost her pre-operative symptoms the hand was “sweaty and cool”. The coolness of the hand was an objective sign of reflex sympathetic dystrophy. Dr Rosenberg concluded that the respondent then indeed had reflex sympathetic dystrophy. Shortly thereafter the bone scan established that this opinion was correct.

39 On 7 April 1998 Dr Rosenberg saw the respondent again and was of the view that she had not made much progress. He said:

“If anything her nerve is even more sensitive than before and Tinel’s sign is strongly positive along the course of the median nerve from halfway down her forearm”.

The positive Tinel’s sign was an objective indication of her injury. Dr Rosenberg said that the nerve was hypersensitive and was causing significant discomfort.

40 On 21 April 1998 nerve conduction studies were carried out on the respondent. Dr Rosenberg observed in this connection:

“Interestingly these showed some slowing in the conduction latencies of her median nerve initially but also was noted that her right hand was cooler. After warming her right hand normal nerve conduction studies were obtained.”

He remarked further:

“This confirms my suspicion that her problem is largely due to a sympathetic dystrophy and irritability of her nerve. Nevertheless, she does have strong evidence of some entrapment contributing to her irritability”.

By late April 1998 there were, therefore, clear objective signs of reflex sympathetic dystrophy.

41 At the end of June 1998 Dr Rosenberg said that the respondent had developed “an established reflex dystrophy of her right arm after a carpal tunnel release”. A month later he expressed the view that there was on-going irritation of the nerve at the wrist. He said:

“To summarise, she has undergone an open carpal tunnel release complicated by sympathetic dystrophy affecting her right hand. She has almost no usage of the hand and fingers and indeed marked limitation of all activities involving her right arm. Despite the strong evidence of a sympathetic dystrophy, as it was evolving initially, she was exquisitely tender over the median nerve suggestive of some residual entrapment possibly a wide band of scar. I make this comment even knowing that the nerve conduction studies did not support this”.

He remarked that in her current state he would assess the respondent as having a 40% percentage loss of her right hand and wrist.

42 At least two other specialists came to similar conclusions as to the respondent’s physical state, namely, Dr Schwartz and Dr Cumming.

43 A report of 9 October 1998, relating to the administration of a right stellate ganglion block to the respondent, demonstrated classic objective signs of reflex sympathetic dystrophy. The respondent underwent several stellate ganglion blocks, it seems as many as twelve. These procedures were not pleasant, even though they were administered under anaesthetic. Although initially they assisted in the alleviation of pain, by the time of the trial they had ceased having effect. It is difficult to believe that the respondent agreed to so many of these procedures, not because she was suffering serious pain, but in order to inflate her claim.

44 Mr Hislop referred to testimony by some doctors who carried out clinical examinations and could not find any evidence of reflex sympathetic dystrophy. However, as is apparent from the testimony to which I have referred, there was ample objective evidence of injury before his Honour on which he could base his findings. I do not accept that the findings of Phegan DCJ were based solely on the views of medical practitioners who were influenced totally by the subjective complaints of the respondent.

45 Mr Hislop challenged the findings of causation arrived at by Phegan DCJ. He submitted that his Honour had relied, solely, on the fact that workers’ compensation payments had been made in the past to the respondent, and that he had erred in so doing.

46 Whether such payments amount to an admission depends on the particular circumstances of each case and it is unnecessary in this case to determine whether any such admission was made.

47 Phegan DCJ said, in regard to causation:

“On the subject of diagnosis there is also the report of Dr James Bodel, orthopaedic surgeon, who examined the plaintiff in August 1998 on behalf of the defendant’s insurers for the purpose of the plaintiff’s workers compensation claim. His concluding opinion was as follows:
‘This patient historically developed the carpal tunnel syndrome in both upper limbs and this has arisen as a result of the nature and conditions of her work.’
A conclusion I note in direct conflict with Dr Harvey’s opinion on the subject of causation. Dr Bodel continued:
‘She has had surgery on the right hand side but this appears to have been complicated by the development of reflex sympathetic dystrophy’”.

48 His Honour then went on to refer to the workers compensation payments but it seems to me that, in so doing, he intended merely to confirm the views to which he had come by reason of the opinion expressed by Dr Bodel. Further, I would add that his Honour accepted the evidence of Mr Hely who expressed the opinion that the work practices followed by the respondent caused the carpal syndrome. There was much evidence from medical practitioners to the effect that the reflex sympathetic dystrophy was caused by the surgery for the carpal tunnel syndrome. In my opinion the challenge to his Honour’s findings as to causation cannot succeed.

49 I now turn to the individual heads of damage that are the subject of challenge.

50 As regards the award for non-economic loss, his Honour said:

“The general impression which the plaintiff conveyed in her evidence as a whole is that there has been a quite significant functional overlay in her presentation, both to doctors, in the witness box, and from my observation, her general conduct in the courtroom even when not in the witness box. She has adopted a demeanour which presents to the outside world, a person who is in constant pain and distress, which is, in my view, a very substantial exaggeration of her true situation. She has in fact, despite a very real and serious injury, been able to get on with her life and indeed, in the strictly domestic and personal sense, make an entirely new life for herself, which she appears to be enjoying and in which she appears to be taking a very full and active role.
In those circumstances, the measure of her non-economic loss certainly must reflect what has been a very distressing and painful period during the time between the injury and this judgment, but the evidence does point to continuing improvement and certainly requires account to be taken of exaggeration of the seriousness of the extent to which she continues to suffer and the extent to which her injury interferes in a substantial way with her ordinary enjoyment of life. However, there is an element of permanence which she will still continue to have to cope with, and in all those circumstances, in my view, an appropriate percentage of a most serious case is thirty per cent, which I have calculated using the base figure already referred to at $66,735”.

51 The appellant submitted that the finding as to “an element of permanence” in the injuries the respondent sustained was wrong as it was based largely on the evidence of the respondent. For the same reason (that is, that his Honour afforded too much weight to the testimony of the respondent) the appellant submitted that Phegan DCJ erred in finding that an appropriate percentage of a most serious case was 30 per cent.

52 Phegan DCJ did not accept all, or even most of the respondent’s claims. The respondent claimed for a total loss of her right arm and this claim was rejected. She claimed for injuries to her neck and left arm or hand and his Honour rejected these claims. Further, the mental distress found by the learned judge in the passage quoted was significantly less than that the respondent alleged. She claimed damages in accordance with the principle laid down in Sullivan v Gordon (1999) 47 NSWLR 319 and this was rejected. She claimed damages for future domestic care on the basis that she needed care for 20 hours per week, but she was only allowed three hours per week.

53 Phegan DCJ carefully explained why he attached some weight to the respondent’s claims of pain and disability. He did so largely in those areas where her claims were backed up by her treating specialist and other medical practitioners. In certain respects the views of the medical practitioners concerned were based substantially on what they were told by the respondent, but is difficult to accept that they would be completely taken in by her. In any event, the trial judge was entitled to believe her to the extent that he did.

54 As regards the respondent’s past loss of earning capacity, the appellant submitted that she could have obtained work as a sales person or a receptionist, particularly as she had some training in these areas.

55 No evidence was adduced as to the prospects of the respondent obtaining such employment, save that she testified that she did attempt to obtain work but when she mentioned her physical problems to prospective employers they became disinterested.

56 In my view, on the factual findings made by his Honour, there would have been little or no prospect of the respondent being able to find and hold down a job prior to the trial. This possibility was (implicitly) discounted to zero by his Honour and in my opinion he cannot be faulted in this.

57 Mr Hislop referred to a beauty course that the respondent had taken and submitted that the evidence showed that in that course she was required to use both hands to attend to customers and successfully did so. The evidence in this regard however was equivocal and did not establish that any finding by Phegan DCJ was incorrect.

58 As regards the respondent’s loss of future economic capacity, Phegan DCJ said:

“I am satisfied, notwithstanding the note of optimism in the plaintiff’s answer to the question put to her in cross-examination, that the permanent injury to her right hand has had and will continue to have a significant impact on her capacity to earn. It is necessary in making that assessment to take into account the fact that the plaintiff has only ever worked in one unskilled line of employment since the time she came to Australia and that her work history even before that is not of a sufficiently substantial kind to enable the Court to be confident that there are a range of other avenues of employment readily available. The work with which she is familiar and the only one in which she has experience since being in Australia is the very kind of work which has given rise to her injury, and the medical evidence does support a conclusion that she could not resume work of that kind. She is unskilled. She lacks any other formal qualification and she still continues to labour with the handicap of language.
In all those circumstances, realistically, it will not be easy, with the best of intentions, for the plaintiff to find permanent full time employment. It is appropriate to treat her permanent loss of earning capacity as a loss of fifty per cent. The damages in those circumstances should be calculated on that basis”.

In my view these findings were open to the learned judge.

59 There was a perfunctory challenge to the award for medical and other expenses but these monies were paid out by the appellant’s workers compensation insurer and there was no evidentiary basis on which the award could be challenged.

60 As regards past domestic assistance, Phegan DCJ calculated the award on the basis that the respondent needed five hours per week domestic assistance from the time of her injury to the date of judgment. As regards future domestic assistance, Phegan DCJ calculated the award on the basis that she would need three hours per week domestic assistance. His Honour said in this regard:

“However, the plaintiff does continue to require a certain amount of domestic assistance for herself. Again, I do not accept the extravagant claims made on her behalf, nor do I accept entirely what she has had to say about the level of care which is provided for her. However, taking account of the nature of her injuries and the fact that they must interfere with at least a certain amount of ordinary domestic and household activities and to a more limited extent, matters involving personal care, an appropriate basis of calculation of her future loss in this regard is three hours per week”.

61 The appellant challenged these findings, principally on the ground that there was no evidence as to who provided and would provide the domestic care for which the respondent claimed.

62 The respondent testified that while she did some of the housework her de facto spouse did most of the work. He cooked, did the shopping, made the bed and did other household chores. In my view, having regard to his Honour findings as to the extent and duration of the respondent’s injuries, this evidence was sufficient to entitle him to make the findings that he did.

63 In the circumstances I would dismiss the appeal with costs.

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Last Modified: 09/05/2003