Magnou v Australian Wool Testing Authority Ltd

[2007] NSWCA 357

New South Wales

Court of Appeal

CITATION:	Antonio Magnou v Australian Wool Testing Authority Ltd [2007] NSWCA 357
HEARING DATE(S):	13 March 2007
JUDGMENT DATE:	12 December 2007
JUDGMENT OF:	Tobias JA; McColl JA; Handley AJA
DECISION:	(a) Appeal allowed.; (b) Cross-appeal dismissed.; (c) Verdict and judgment of Puckeridge DCJ dated 16 May 2005 set aside except as to liability.; (d) There be a new trial limited to damages.; (e) The orders made by Puckeridge DCJ on 19 May 2005 that; (i) the respondent pay the appellant’s costs of the application to amend the statement of claim made on 11 October 2004, and; (ii) the appellant to pay the respondent’s costs of the day of an adjournment on 12 October 2004,; be confirmed. ; (f) Set aside the other orders for costs made by his Honour on 19 May 2005. ; (g) Save as to the orders for costs referred to in (e) above, the costs of the proceedings in the District Court to date to abide the order of the Judge presiding at the new trial. ; (h) The respondent to pay the appellant’s costs of the appeal and cross-appeal but to have a certificate under the Suitors’ Fund Act, 1951, if otherwise qualified.
CATCHWORDS:	APPEAL AND NEW TRIAL - Insufficient findings of primary fact - Inadequate reasons - No question of principle - NEGLIGENCE - Unsafe system of work - Damages - Insufficient findings of primary fact - Inadequate reasons - No question of principle
LEGISLATION CITED:	Workers Compensation Act 1987
CASES CITED:	Chung v Anderson [2004] NSWCA 321 Commonwealth of Australia v McLean (1996) 41 NSWLR 389 Fox v Wood (1981) 148 CLR 438 Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 Rabay & Anor v Bristow [2005] NSWCA 199 Wynn v New South Wales Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485
PARTIES:	Antonio Magnou (Appellant/Cross respondent) Australian Wool Testing Authority Ltd (Respondent/Cross appellant)
FILE NUMBER(S):	CA 40477/05
COUNSEL:	G B Hall QC with D Elliott (Appellant/Cross respondent) P W Neil SC with C M Egan (Respondent/Cross appellant)
SOLICITORS:	Gerard Malouf & Partners (Appellant/Cross respondent) Ellison Tillyard Callanan (Respondent/Cross appellant)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 8070/01
LOWER COURT JUDICIAL OFFICER:	Puckeridge DCJ
LOWER COURT DATE OF DECISION:	16, 22 May 2005

- 18 -

CA 40477/05
DC 8070/01

TOBIAS JA
McCOLL JA
HANDLEY AJA

Wednesday 12 December 2007

ANTONIO MAGNOU v AUSTRALIAN WOOL TESTING AUTHORITY LTD

APPEAL AND NEW TRIAL - Insufficient findings of primary fact - Inadequate reasons - No question of principle

NEGLIGENCE - Unsafe system of work - Damages - Insufficient findings of primary fact - Inadequate reasons - No question of principle

The appellant who worked for the Respondent as a wool classer in dusty conditions developed industrial asthma and had to give up his job. He sued his employer for breach of its duty to provide a safe system of work. The Trial Judge found negligence and awarded damages. The appellant appealed on damages and the employer cross-appealed on liability and damages. The Court dismissed the cross-appeal on liability. At the trial the appellant claimed that his asthma and his supervening anxiety condition made him unemployable, and unable to properly take care of himself. The primary Judge found that he had a residual capacity for work assessed at 27 per cent for the past, and 53 per cent for the future, and that awards for gratuitous care should be made at the rate of 3 hours per week for the past and 1 hour a week for the future. The Court held that the Judge had failed to make necessary findings of fact about the reliability and credit of the appellant, and to give proper reasons for his assessment of damages.

Held: There must be a new trial as to damages including those heads of damage which could otherwise have been finally determined by the Court of Appeal.

ORDERS

a) Appeal allowed.

(b) Cross-appeal dismissed.

(c) Verdict and judgment of Puckeridge DCJ dated 16 May 2005 set aside except as to liability.

(d) There be a new trial limited to damages.

(e) The orders made by Puckeridge DCJ on 19 May 2005 that

(i) the respondent pay the appellant’s costs of the application to amend the statement of claim made on 11 October 2004, and
(ii) the appellant to pay the respondent’s costs of the day of an adjournment on 12 October 2004,


be confirmed.

(f) Set aside the other orders for costs made by his Honour on 19 May 2005.

(g) Save as to the orders for costs referred to in (e) above, the costs of the proceedings in the District Court to date to abide the order of the Judge presiding at the new trial.

(h) The respondent to pay the appellant’s costs of the appeal and cross-appeal but to have a certificate under the Suitors’ Fund Act , 1951, if otherwise qualified.

CA 40477/05
DC 8070/01

TOBIAS JA
McCOLL JA
HANDLEY AJA

Wednesday 12 December 2007

ANTONIO MAGNOU v AUSTRALIAN WOOL TESTING AUTHORITY LTD

Judgment

1 THE COURT: The appeal and cross-appeal before the Court are from a decision of Puckeridge DCJ in an industrial dust disease case. The plaintiff/appellant appeals on issues going to the quantum of damages and the defendant/respondent cross-appeals against his Honour’s findings on liability and some issues going to quantum. In our opinion the cross-appeal on liability should be dismissed and there should be a new trial on damages.

2 The appellant worked for the respondent between 1984 and 1998 at its premises at Yennora handling wool that it tested. He worked in a dusty environment created by airborne wool fibres and dust from soil and organic material in the wool (wool dust). In 1991 he noticed that his breathing was affected when he was at work and he was subsequently diagnosed with occupational asthma. He ceased working for the respondent in 1998 on the advice of Dr Crawford, the consultant respiratory physician who had been treating him since 1994. Dr Crawford considered that the appellant’s asthma was probably related to his exposure to wool dust, although he could not exclude the possibility that it was late onset asthma unrelated to his work.

3 Dr Crawford gave evidence in report form and orally. In August 1998 he gave the appellant an intradermal injection of saline which had been soaked in a sample of wool provided to him by the appellant. Almost immediately this caused a huge wheal and flare reaction which persisted for a number of days. He also had a symptomatic deterioration which required him to take additional oral Prednisone (blue 1/141). Dr Crawford acknowledged that the appellant’s reaction to the injection may have been due to other factors but on balance he considered that it established a link between his asthma and his exposure to wool dust.

4 Dr Corte, who was qualified by the respondent, and gave evidence in report form, considered that the appellant was suffering from adult onset asthma. The primary judge preferred the evidence of Dr Crawford and found that the respondent had negligently failed to establish and maintain a safe working environment.

The respondent’s cross-appeal on liability

5 The respondent challenged the relevance of Dr Crawford’s evidence about the skin test because there was no evidence that the wool sample came, unchanged, from its premises. It also challenged the primary judge’s preference for the evidence of Dr Crawford. These challenges are without substance. No objection was taken to the tender of Dr Crawford’s reports dealing with the skin test, which was only relevant if the wool sample had come, unchanged, from the respondent’s premises.

6 Such an objection, if successful, would have required the appellant’s counsel to lead evidence about the history of the sample. After the reports went into evidence without objection there was no need to call this evidence. The respondent’s counsel did not challenge the validity of the sample in his cross-examination of the appellant and Dr Crawford. There is no other basis for disturbing the primary judge’s preference for Dr Crawford’s evidence. The cross-appeal on liability fails.

The appellant’s appeal on damages

7 The primary judge assessed the appellant’s non-economic loss at 50% of a most extreme case resulting in an award of $114,175. He allowed $37,385.76 for agreed out of pocket expenses, which included substantial amounts paid by the worker’s compensation insurer for rehabilitation. He allowed for past care at the rate of three hours per week at $18 an hour resulting in an award of $18,154, but for the future only one hour a week at that rate for an award of $16,448. He assessed the appellant’s past economic loss at $330 per week with a residual earning capacity of $122 resulting in an award of $115,830, and a Fox v Wood component of $27,432. He allowed $58,659 for future medical and pharmaceutical expenses. He assessed the appellant’s future loss at $250 per week with a residual earning capacity of $252 for an award of $130,515. There was a consequential award for loss of superannuation of $23,450.

8 The total award of $542,848.78 was reduced by worker’s compensation benefits of $202,078.68 to produce a judgment for $340,770.10. Unfortunately for the appellant this was less than the $350,000 the respondent had formally offered by way of compromise on 17 December 2004 prior to the trial which began on 31 January 2005. His Honour’s costs orders leave the appellant paying his own and the respondent’s costs from the date of the offer. Costs are likely to absorb a substantial part of the appellant’s damages and this has encouraged the search for error.

9 The appellant has not worked since giving up his employment with the respondent. The primary judge found that his exposure to wool dust was a material contributing factor to the development of his asthma. However, the appellant smoked tobacco and cannabis which Dr Crawford said frequently led to significant airway narrowing which was usually progressive with little reversibility either spontaneously or with medication (Blue 1/148). Dr Corte said that the appellant’s asthma was mild to moderate in severity. The appellant had also developed features of a chronic anxiety depressive disorder which Dr Clark said (Red 39) involved moderate impairment and aggravated his asthma.

10 The primary judge’s assessment of the appellant’s non-economic loss took into account the fact that his asthma was permanent and his anxiety depressive disorder was likely to continue. He declined to award damages for the increased disability due to smoking cannabis because the appellant had made a deliberate decision to reject medical advice that he should stop.

11 In assessing the appellant’s past and future economic loss his Honour accepted Dr Crawford’s evidence but took into account the nature of his former employment and lack of skills in arriving at an average past loss of $330 per week. In his first judgment of 22 April 2005 he applied the normal discount of 15 percent for vicissitudes.

12 In a second judgment of 16 May 2005 his Honour again referred to Dr Crawford’s evidence that the smoking of tobacco and cannabis worsens the symptoms of asthma and accelerates the loss of lung function. He found that smoking was making a significant contribution to the appellant’s illness. He said:

“I consider having reviewed the evidence of Dr Crawford and the evidence of Dr Clark that it is appropriate in view of the appellant’s continued smoking of tobacco and marijuana to make a deduction other than the normal 15 percent for the vicissitudes. I take into account in considering this matter the fact that the appellant has had difficulty in reducing and eliminating the tobacco habit. I have also taken into account that the appellant would appear to be determined to continue to smoke cannabis.”

13 The primary judge found that the aggravation of the appellant’s condition due to smoking

“… could result in the appellant’s ceasing work at a time other than the normal retiring age. I have also taken into account what has been referred to as the appellant’s emotional state and that if his condition was worsened or was brought about in any event as a result of smoking of tobacco or cannabis, he would be unlikely to continue working past the age of 65. I consider the appropriate discount for vicissitudes to be 30 percent.”

14 The respondent relied on the appellant’s contributory negligence before and after he developed respiratory symptoms. His Honour rejected this defence, and insofar as it was based on the appellant’s conduct before he developed respiratory symptoms nothing more need be said.

15 A defence of contributory negligence may also be based on a plaintiff's failure to take reasonable care for his own safety after he has been injured as a result of the respondent’s negligence: Commonwealth of Australia v McLean (1996) 41 NSWLR 389, 398. This part of the defence was based on the appellant’s conduct in continuing to smoke tobacco and cannabis after he had developed respiratory symptoms and had been strongly advised by Dr Crawford to give up both.

16 The primary judge acknowledged that there was no evidence of the extent that smoking tobacco and/or cannabis had added to the effects of the appellant’s asthma. His conclusion on this issue was as follows:

“On the evidence before me there may well have been aggravation of the injury, but I consider that the evidence clearly shows that the inhalation of wool dust was a material contributing factor to the asthmatic condition in which the appellant suffers. The smoking of tobacco and marijuana may have aggravated his condition, but it has not broken any chain of causation. I am not satisfied that the respondent has proved that the appellant was guilty of contributory negligence in continuing to smoke cigarettes and/or other tobacco products and/or cannabis.”

17 Although the respondent did not cross-appeal from the findings on contributory negligence, there are obvious problems with some of his Honour’s reasoning. Findings that the respondent’s negligence was “a material contributing factor” and the appellant’s contributory negligence “has not broken any chain of causation” do not preclude a further finding that the appellant’s contributory negligence was also a cause so that apportionment was required.

18 Nor was apportionment excluded by the absence of evidence of the extent to which the smoking of tobacco and cannabis had added to the appellant’s asthma. In this, as in other questions of damage where precise evidence is not available, the Court must simply do the best it can. The primary judge’s findings on contributory negligence sit uncomfortably with his reasons for increasing the allowance for vicissitudes to 30 percent.

19 The quantum issues that were pressed by the parties at the hearing were:

(a) Non-economic loss . Both parties submitted that his Honour’s assessment of 50 percent was outside the range, the appellant contending for 60 and the respondent for 35 to 40 percent.

(b) Past economic loss . The appellant submitted that the finding that he had some capacity for work was in error, and that his Honour should have found that he was unemployable.

(c) Future economic loss . The appellant submitted that the primary judge should have found that he was unemployable, and that he was also in error in increasing the allowance for vicissitudes to 30 percent. Any adjustment to the awards for past or future economic loss would require a corresponding adjustment to the award for loss of superannuation.

(d) The respondent challenged the award of $58,659 for future medical expenses and submitted that an award supported by the evidence would be in the order of $17,738.

Past and future economic loss

20 The general principles governing this head of damage were set out in Rabay & Anor v Bristow [2005] NSWCA 199 as follows:

“[73] Compensation for loss of earning capacity is awarded because the diminution in an injured plaintiff’s earning capacity ‘is or may be productive of financial loss’: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 at 347. It is incumbent upon the plaintiff to prove the loss for which compensation is claimed ( Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 at 412) but, conversely, it is not incumbent upon the injured plaintiff to prove what employment he or she ‘is not incapacitated from performing’. It is for a defendant which contends that the plaintiff has a residual earning capacity to adduce evidence of what the plaintiff is capable of doing and what jobs are open to such a person: H Luntz, Assessment of Damages for Personal Injury and Death (4th Ed) at 118 [1.9.20].

[74] The primary judge was entitled to take into consideration the fact that the respondent had an employment history which demonstrated a consistent pattern of full time employment in work which might fairly be described as having been of a heavy manual nature: Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 at 143 per Gleeson CJ, Gummow, Kirby and Hayne JJ.

[79] The assessment of damages for future economic loss involves reference to future or hypothetical events. It was described as ‘the process of estimation of possibility’ in Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 643 per Deane, Gaudron and Gummow JJ. This is, as Santow JA has pointed out, ‘necessarily an imprecise matter of estimation, carried out within broad parameters …’: Donald v McKeown [2004] NSWCA 285 at [38].”

21 The primary judge’s findings on the issue of economic loss were extremely brief:

“As to the economic loss to the date of trial, certainly I accept that anxiety depressive condition has been a significant inhibitor of him obtaining work but I note that Dr Crawford considered in 1999 that with adequate retraining he could obtain employment at an enumeration at least equivalent to his previous job with Australian Wool Authority. In view of the nature of his employment and his lack of skills I would consider the past economic loss to date ought to be assessed at $330 per week from August 1998 to date and for the future I accept the submission on behalf of the defendant that the appropriate amount for any economic loss in the future and loss of work capacity is $250 per week.”

22 His Honour’s starting point for past economic loss was $452 per week, the average net weekly earnings of a testing officer employed by the respondent during the period 1 July 1998 to 21 January 2005, (the date of trial). The net weekly earnings of such an officer at the date of trial were $531 per week.

23 His Honour must have found a residual earning capacity to the date of trial of 27% ($452 - $330 = $122). He assessed future economic loss at $250 per week. He must have found that in the future the appellant would have a residual earning capacity of 53% ($531-$250 = $281).

24 The appellant challenged the increased discount for vicissitudes and his Honour’s findings as to his residual earning capacity, it being submitted that as a matter of reality, he had none.

25 His Honour had earlier found that the appellant

“has had limited schooling and education. Dr Crawford considered that his employment opportunities would be somewhat limited in regard to his minimal education, background and asthma. Dr Crawford stated that the [appellant] should not work in environments where there is significant exposure to dust or fumes, and should avoid any occupation that involves handling or (sic) organic materials, including wool.”

26 Evidence on page 5 of Dr Crawford's report not picked up in the primary judge's findings included:

“His [the appellant’s] symptoms have significantly adversely affected his domestic capacity such that he has been unable to perform any household chores requiring moderate manual exertion such as the mowing of lawns etc.”

27 Although Dr Crawford was called by the appellant and gave oral evidence, he had not seen the appellant since July 1999 and no attempt was made to bring his report of 25 November 1999 up to date.

28 Dr Clark, the psychiatrist qualified for the appellant, said that he was not employable and he was not cross-examined on that issue. The other medical and health experts who gave evidence for the appellant in report form were not required for cross-examination. Their unanimous evidence was that the appellant was unemployable. Dr Lewin, a consultant forensic psychiatrist, qualified for the respondent, considered that a return to work was possible but he acknowledged that his opinion did not take into account the effects of the appellant’s chronic asthma.

29 Although the primary judge accepted that the appellant’s anxiety depressive condition had been a significant inhibitor in his obtaining work, in coming to the conclusion referred to in [21] above, he relied solely upon Dr Crawford's qualified opinion in his report of 25 November 1999. All other evidence on the issue, which was extensive, was ignored.

30 The appellant was extensively cross-examined about his lack of motivation for work (Black 49-52). One of the problems with the primary judge’s reasons is that he made practically no findings about the evidence of the appellant and his wife on those heads of damage, the subject of this appeal. The findings he did make were confined to the issue of non-economic loss.

31 It is apparent that his Honour did not fully accept Dr Crawford's opinion that retraining would enable the appellant to earn at the level he had with the respondent because he impliedly found a loss of earning capacity of 73% up to the date of trial. He did not provide any reasons for his awards for economic loss except in the passage from his judgment set out in [21] above and he could not have made the awards he did if he had fully accepted the appellant's own evidence. There were possible problems with that evidence including some inconsistent histories he had given. Although the Court may be permitted to know that many people who suffer from asthma, controlled by medication, hold down full time jobs this must depend on the nature of the job. The problem with the appellant was that the evidence was unanimous in that he was only ever capable of performing relatively unskilled work which did not involve significant, if not only moderate, exertion. The appellant's case also involved the proposition that he became totally unemployable the day after he gave up full time work with the respondent.

32 The primary judge's award for past economic loss implied the rejection (as it was not mentioned at all in his Honour’s reasons) of a substantial body of expert evidence called in the appellant's case which was not challenged in cross-examination. The respondent did not call evidence that the appellant was employable in a particular occupation or occupations or at all. It did not call anyone from Combrook Pty Limited which had undertaken rehabilitation training for the appellant at a cost to the insurer of $14,927.85.

33 The Court simply does not know why the substantial body of evidence called by the appellant on this issue was rejected as none of it was referred to. It therefore cannot be confident that it was properly considered by his Honour or even considered at all.

34 The apparent inconsistency between the awards for past and future economic loss also needed to be explained. The award for the past was based on a retained capacity of 27% while that for the future was based on a capacity of 53% which presupposed a substantial recovery in the appellant's capacity for work. There was some evidence, lay and expert, that the end of the litigation might reduce the stresses experienced by the appellant and the primary judge allowed the cost of a course of counselling that Dr Clark thought might help. Nevertheless there was a substantial body of evidence that the appellant would remain unemployable and nothing positive to the contrary, apart from the qualified 1999 opinion of Dr Crawford and the opinion of Dr Lewin limited as it was to the effects of his anxiety condition. In the absence of proper reasons the Court is left to speculate as to the basis upon which his Honour found that the appellant had a significant future earning capacity, as to whether his award was or was not an average or was merely arbitrary and whether or not he applied the Malec v Hutton principle and based his award for the future on an assessment of a chance.

35 Another difficulty with his Honour’s lack of reasons is the clear inconsistency between awards for future economic loss and for non-economic loss. The primary judge assessed the latter at 50% of a most extreme case and said that the appellant's asthma was permanent and his anxiety and depressive disorder was likely to continue. He did not find that the appellant's condition would substantially improve.

36 For all these reasons the awards for past and future economic loss cannot stand. As will later appear the Court is not in a position to reassess those losses so that there must be a new trial on the issue of damages generally.

Vicissitudes

37 In his original judgment the primary judge applied the usual discount of 15% for vicissitudes in his assessment of the appellant’s future economic loss. In his second judgment he increased this to 30% based on the evidence of Drs Crawford and Clark of the likely effects on the appellant’s condition of his continued smoking of tobacco and marijuana: see [12], [13] above.

38 The normal function of the discount for vicissitudes is to reflect the chances, apart from the risk of injury due to the wrongful acts or omissions of others, that might otherwise have prevented the uninjured plaintiff from fully exploiting his earning capacity in the future: Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, 643-4. The primary judge did not apply the principle in this way. He found that the appellant’s continued smoking of both tobacco and cannabis might result in him ceasing work before his normal retiring age. This was an incorrect application of the discount.

39 The classic statement of principle is that of Dawson, Toohey, Gaudron and Gummow JJ in Wynn v New South Wales Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485, 497-8:

”It is necessary to say something as to contingencies or ‘vicissitudes’. Calculation of future economic loss must take account of the various possibilities which might otherwise have affected earning capacity. The principle and the relevant considerations were identified by Barwick CJ in Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649, 659:
‘Ill health, unemployment, road or rail accidents, wars, changes in industrial emphasis, so that industries move their location, or are superseded by new and different techniques, the onset and effect of automation and the mere daily vicissitudes of life are not adequately reflected by merely — and blindly — taking some percentage reduction of a sum which ignores them.’
It is to be remembered that a discount for contingencies or ’vicissitudes‘ is to take account of matters which might otherwise adversely affect earning capacity and, as Professor Luntz notes, death apart, ’sickness, accident, unemployment and industrial disputes are the four major contingencies which expose employees to the risk of loss of income‘ …”

See also Chung v Anderson [2004] NSWCA 321 at [81] per McColl JA.

40 The principles in Malec and Wynn would only require a further reduction in the damages for future economic loss if the evidence established that in the absence of any tortious exposure to wool dust the appellant would have suffered adult-onset asthma or some other disability because of his smoking. There was no such evidence.

41 The normal deduction for vicissitudes of 15% is applied to the diminution of a plaintiff's capacity for work caused by the defendant's tort. It is not applied to any capacity he may retain despite his injuries.

42 If a plaintiff's capacity for work uninjured was $500 a week, and his residual capacity as injured is $250 a week, his damages are based on a loss of earning capacity of $250 a week. The discount for vicissitudes is applied to the capacity that was lost, not to the capacity that is retained.

43 A plaintiff's ability to exercise any retained earning capacity is still subject to vicissitudes but these are irrelevant to the assessment of the damages for the capacity that has been lost.

44 The chance that the appellant would not be able to exercise his residual earning capacity until the normal retiring age because of his smoking could only affect the earning capacity, if any, which he retained and for which he obviously receives no damages.

Past and future gratuitous care

45 The appellant claimed damages for past and future gratuitous care, it being accepted, pursuant to s 151K(3) of the Workers Compensation Act 1987, that damages were not to be awarded for services that would have been provided even if the worker had not been injured. The section was limited to “services of a domestic nature or services related to nursing and attendance.”

46 The primary judge’s reasons on the issue of past and future gratuitous care were also sparse and unsatisfactory. After referring to s 151K(3) and to the respondent’s submission that one hour per week for gratuitous and paid care to the day of the trial would be most reasonable, his Honour observed that:

“in all the circumstances three hours per week in view of the evidence I have already referred to at $18 per hour would be reasonable for the present state, up to the present stage. The plaintiff himself said that three hours per week at $18 per hour would be reasonable on the evidence in view of the need as stated and the only evidence before me [is] of the need to remind him of the need to take medication both for asthma and for his psychological condition.”

47 So far as future gratuitous care was concerned, his Honour said:

“I would invite further submissions Mr Egan as to the future on the basis that some treatment may be of assistance and the medication may be of assistance to him. I consider that one hour per week in the future at $18 per hour would be the most reasonable.”

48 It is not clear whether further submissions were made. His Honour said in his supplementary judgment:

“Past Griffiths v Kirkmeyer and on findings which I have made, amounts to a figure of $18,954. Future Griffiths v Kirkmeyer or future allowance for gratuitous care amounts to on the findings as referred to in the judgment of 22 April 2005, $16,448.”

This amount was based on one hour per week at $18 per hour.

49 The appellant did not say, and it was not submitted on his behalf, that three hours per week at $18 per hour would be reasonable. His Honour also based his finding of three hours per week on “the evidence I have already referred to”. The only relevant evidence referred to (Red 39) was Dr Clark’s report of 28 September 2004 in which he stated that the appellant

“has moderate impairment to self-care and personal hygiene. He said a family member or community nurse visits about 2-3 times per week to ensure a minimum level of hygiene and nutrition.”

50 This did not support an award limited to three hours per week. His Honour was also in error when he said (Red 46):

”the only evidence before me [is] of the need to remind him of the need to take medication both for asthma and for his psychological condition.”

51 There was other evidence on this issue from the appellant, his wife, and Ms Benari, and in other medical reports. It therefore appears that the primary judge failed to consider a substantial body of relevant evidence. If he rejected this evidence he did not say that he had done so or why. In these circumstances his award for past care cannot be supported.

52 His Honour also gave no reasons for reducing his award for future care from three hours to one hour per week. His doing so seems to have been purely arbitrary and finds no support in the evidence. Reasons to support this finding were obviously required and as they did not exist, this award also cannot stand. In any event the awards for the past and future are related and our decision to set aside the award for past care requires the award for the future to be set aside as well.

Future medical expenses and non-economic loss

53 The Court could have finally disposed of the grounds of appeal and cross-appeal which challenged the awards for future medical expenses and non-economic loss. Since, for reasons that will appear, the Court cannot reassess the awards for economic loss and gratuitous care a new trial on the issue of damages will be necessary. This cannot be confined to those heads of damage which this Court cannot reassess. There is no point in this Court dealing with any other issues as they will have to be determined on the new trial in any event possibly on different evidence. Any expression of our views on the existing evidence would only embarrass the judge presiding at the new trial and complicate his or her task.

New trial or not?

54 Neither party sought a new trial limited to damages but the absence of and deficiencies in the primary judge's reasons make this inevitable. His Honour made no findings with respect to the credit of the appellant or his wife who were both challenged, at least on some matters, in cross examination. There were some conflicts in the medical evidence, and in the histories taken by the medical and related experts, and there were some conflicts between those histories and evidence given by the appellant and his wife. The significance or otherwise of these conflicts and their effect on the assessment of the appellant's damages were matters for the primary judge but these issues had to be resolved and findings made before appropriate awards for economic loss and gratuitous care could be made. The Court is not in a position to make credit findings, and cannot reassess without such findings. There must therefore be a new trial on damages generally.

Conclusion

55 The appellant has succeeded on the issues of past and future economic loss and past and future gratuitous care. He has also successfully resisted the respondent’s challenge in its cross-appeal to the primary judge’s finding on liability. In the circumstances the appellant should have his costs of both the appeal and cross-appeal.

56 The Court therefore makes the following orders:

(a) Appeal allowed.

(b) Cross-appeal dismissed.

(c) Verdict and judgment of Puckeridge DCJ dated 16 May 2005 set aside except as to liability.

(d) There be a new trial limited to damages.

(f) The orders made by Puckeridge DCJ on 19 May 2005 that

(i) the respondent pay the appellant’s costs of the application to amend the statement of claim made on 11 October 2004, and
(ii) the appellant to pay the respondent’s costs of the day of an adjournment on 12 October 2004,


be confirmed.

(f) Set aside the other orders for costs made by his Honour on 19 May 2005.

(g) Save as to the orders for costs referred to in (e) above, the costs of the proceedings in the District Court to date to abide the order of the Judge presiding at the new trial.

(h) The respondent to pay the appellant’s costs of the appeal and cross-appeal but to have a certificate under the Suitors’ Fund Act , 1951, if otherwise qualified.


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