New South Wales Land and Housing Corporation v Watkins

[2002] NSWCA 19

Reported Decision: (2002) Aust Torts Reports 81-641

New South Wales

Court of Appeal

CITATION:	NSW Land & Housing Corporation v Watkins [2002] NSWCA 19
FILE NUMBER(S):	CA 40805/00
HEARING DATE(S):	22 August 2001
JUDGMENT DATE:	19 February 2002
PARTIES :	NSW Land and Housing Corporation (Appellant) Vicki Watkins (Respondent)
JUDGMENT OF:	Powell JA at 1; Heydon JA at 33; Hodgson JA at 130

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 228/99
LOWER COURT JUDICIAL OFFICER :	Hosking DCJ

COUNSEL:	Mr J E Maconachie QC/Mr M A Barko (Appellant) Mr M R Aldridge SC/Mr A J Lidden (Respondent)
SOLICITORS:	McCabes (Appellant) Brydens Law Office (Respondent)
CATCHWORDS:	Tort - Negligence - Scope and content of duty of care - Proximity - Liability - Damages - Tort - Past and future care - D
CASES CITED:	Bus v Sydney County Council (unreported, 4 April 1986, NSWSC) Commonwealth v McLean (1996) 41 NSWLR 389 Davis v Langdon (1911) 11 SR (NSW) 149 Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 Hart v Lancashire & Yorkshire Rail Co (1869) 21 LT 261 Harvey v Singer Manufacturing Co Ltd 1960 SC 155 Hawkins v Coulsdon and Purley Urban District Council [1954] 1 QB 319 Hughes v Lord Advocate [1963] AC 837 Jones v Bartlett [2000] HCA 56; 75 ALJR 1; 176 ALR 137 Kavanagh v Akhtar (1998) 45 NSWLR 588 Miletic v Capital Health Commission (1992) 108 FLR 213 Minister Administering the Environmental Planning and Assessment Act, 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268 Mitchell v Government Insurance Office (NSW) (1992) 15 MVR 369 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 Neill v NSW Fresh Food and Ice Pty Ltd (1963) 108 CLR 362 Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201 Northern Sandblasting Pty Limited v Harris (1996-1997) 188 CLR 313; 146 ALR 572 Phillis v Daly (1988) 15 NSWLR 65 Rae v The Broken Hill Pty Co Ltd (1957) 97 CLR 419 Ratcliffe v Jackson (unreported, 27 May 1993, Tas FC) G G Rudge v Murray Tractors Importers Pty Ltd (unreported, 9 November 1989, NSWCA) Shirt v Wyong Shire Council [1978] 1 NSWLR 631 Sullivan v Gordon (1999) 47 NSWLR 319 Sullivan v Moody (2001) 183 ALR 404 Van Gervan v Fenton (1992) 175 CLR 327 Wyong Shire Council v Shirt (1979-80) 146 CLR 40
DECISION:	See paragraph 129

IN THE SUPREME COURT

OF NEW SOUTH WALES
COURT OF APPEAL

CA 40805/00
DC 228/99

POWELL JA
HEYDON JA
HODGSON JA

19 February 2002

NEW SOUTH WALES LAND & HOUSING CORPORATION

v WATKINS

Tort - Negligence – Scope and content of duty of care – Proximity – Liability – Damages – Tort – Past and future care

The plaintiff and her husband were leasehold tenants of a house belonging to the defendant. Over a period of six years they lodged three separate complaints with the defendant concerning the functioning of their domestic hot water service. They complained that the service was so sensitive to the opening of faucets elsewhere in the house that a user of the shower was exposed to widely fluctuating water temperatures which were unsafe and dangerous. The service was not repaired. After six years of tenancy the plaintiff fainted while showering, suffering spinal injuries from the resulting fall. The plaintiff argued that her unconsciousness and resulting injury were caused by a substantial and sudden increase in water temperature itself a result of the defendant’s negligent failure to maintain and repair the hot water service. The trial judge entered judgment in the plaintiff’s favour and ordered the defendant to pay the plaintiff’s costs. The defendant appealed in relation to liability and quantum of damages.
Held: Allowing the appeal (Heydon JA, Hodgson JA agreeing, Powell JA dissenting),
(1) As to foreseeability,
(a) ‘proximity’ is not an essential element in liability for negligent acts; it is a concept with a limited role: at [59].
(b) that reasonable foreseeability is an ‘undemanding’ standard is not certain under the current law: [60].
(c) reasonable foreseeability is a necessary condition for liability in negligence, not a sufficient condition.
Minister Administering the Environmental Planning and Assessment Act, 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268; Sullivan v Moody (2001) 183 ALR 404 considered.
(2) As to the scope of the duty of care:
(a) it is open to the Court of Appeal to formulate the duty of care for itself. Here the defendant fell under a duty to repair or replace the hot water system: [67].
(b) the scope of the duty formulated by the Court of Appeal agreed with that of the trial judge.
(3) It was open to the trial judge to base his conclusions where appropriate on common knowledge without the need for specific evidence: [70].
(4) The defendant fell below the response of a reasonable man to the risk created by the hot water system.
Observations on burden of proof: [77]-[80].
(4) The question was not whether the defendant was liable for “psychological shock precipitating a faint” in the plaintiff, but the plaintiff’s physical injury: [87]-[91].
Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 per Barwick CJ distinguished.
Hughes v Lord Advocate [1963] AC 837; Kavanagh v Akhtar (1998) 45 NSWLR 588 and Commonwealth v McLean (1996) 41 NSWLR 389 applied.
(5) As to damages:
(a) the trial judge’s assessments of general damages and of special damages for loss of future earnings were within the range of a sound judgment: [99], [103]-[107].
(b) However, the trial judge’s assessment of damages for pure economic loss occasioned by the necessity of the plaintiff’s husband ceasing paid employment was excessive for the period after the trial hearing. The plaintiff was able complete more tasks than the trial judge had found, and estimates of time spent in execution of his wife’s former duties given by the plaintiff’s husband were too great. Damages for that period should be discounted by one third: [126]-[127].
O R D E R S

1. The appeal is allowed.

2. The verdict of the trial judge is set aside.

3. In lieu of the verdict of the trial judge, there will be a verdict for the plaintiff in the sum of $532,908 with judgment accordingly with effect from 13 September 2000.

4. The defendant is to pay half of the plaintiff’s costs of the appeal.
5. It is noted that the costs order made by the trial judge still stand.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40805/00
DC 228/99
POWELL JA
HEYDON JA
HODGSON JA


19 February 2002

NEW SOUTH WALES LAND & HOUSING CORPORATION v WATKINS
Judgment

I have read, in draft, the Judgment which has been prepared by Heydon JA, with which Judgment I understand Hodgson JA to agree. I regret, however, that I am unable to share their Honours’ views that, to the extent to which the Appellant sought to have the judgment of G.S. Hosking DCJ set aside and judgment entered in its favour, the appeal should be dismissed. On the contrary, I am of the opinion that, at trial, the Respondent failed to establish that the Appellant had not discharged the duty of care which it was conceded that the Appellant owed to her.

2 To accept, as the Appellant, at trial, did, that the Appellant owed to the Respondent, as a member of the household of the Appellant’s tenant, a duty to take reasonable care to avoid foreseeable risk of injury to her (Northern Sandblasting Pty. Limited v. Harris (1) Jones v. Bartlett (2)) does not take one very far, for it is still necessary to determine what, in all the circumstances of this case, was the content of the duty of care conceded, for, until that has been done, one cannot determine whether, in the light of the evidence, a breach of that duty had been established.

3 Determining the content of the duty of care involves one in a two step process, as the following well known passage in the Judgment of Mason J in Wyong Shire Council v. Shirt (3) makes clear:

“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of person including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”

4 It is clear that Hosking DCJ did not carry out such an exercise as was indicated by Mason J (as he then was) in Wyong Shire Council v. Shirt (4) , as the following passage from his Judgment (RAB 18) makes clear:

“In terms of … breach of duty, in my view there was a breach of the defendant’s duty of care because a system which contained water which was so hot and with taps and/or plumbing so sensitive that the turning on of a cold tap elsewhere in the house produced scalding water presented an obvious danger to occupants of the premises. I find as a fact that the defendant knew of this danger because the plaintiff’s husband had twice reported it to the Liverpool office.”

a passage which not only overstated what was said to have been the problem but also seems to indicate that his Honour was of the view that the existence of what was said to have been the problem, without more, indicated that there had been a breach by the Appellant of its duty of care.

5 Upon analysis, the position appears to have been, simply, that the water supplied by the hot water service was hot; that, unless mixed with cold water it was, or could be, painful to touch; and that,if, after the water had been adjusted to a comfortable temperature, a cold water tap was turned on in another part of the house, the temperature of the water which had previously been adjusted would tend to rise. However, as Hosking DCJ also recorded in his Judgment (RAB 13):

“(The plaintiff) said that while the hot water service concerned her because it was simply too hot and that at times she had to pull her hand away because the hot water was uncomfortable, that she had, never in fact, burned herself. I infer that no other member of her family was actually burned by the hot water either.”

6 Given that this was the nature of what was said to be the problem, the question then is what steps were reasonably required of the Appellant?

7 In the Amended Ordinary Statement of Claim which was filed on the Respondent’s behalf, the following particulars of negligence were given (RAB 3-4):

“(a) Failing to take any or any adequate precautions for the plaintiff’s safety;
(b) Putting the plaintiff in a position of peril in the circumstances;
(c) Failing to ensure that the shower within the premises was safe for use by the inhabitants of the house;
(d) Failing to replace the hot water system;
(e) Providing the premises with a hot water system which was unsafe;
(f) Providing a hot water system with insufficient pressure;
(g) Failing to heed the previous complaints of the said David Watkins that he water mixture in the shower was affected by other taps with the result that the temperature of that mixture substantially rose if other taps were turned on in the house;
(h) Failing to regularly inspect and maintain the said hot water system;
(i) Failing to replace the said hot water system which was a low pressure system with a mains pressure system.”

However, at trial, the Respondent’s case appeared to be directed solely to the last of those particulars.

8 In order to determine whether, in the circumstances, the Appellant ought reasonably to have replaced the hot water service, it is necessary to consider, first, the nature of the risk; second, the magnitude of the risk; and, third, all other relevant circumstances.

9 The nature of the risk was that, either, through his, or her, own carelessness, or as the result of another person in the house turning on a cold water tap at the same time, a person using hot water supplied by the hot water service might be burnt.

10 If I may say so, the evidence as to the magnitude of the risk is hardly satisfactory.

11 Much stress has been laid on Exhibit H (Blue AB 159), which in the transcript (Black AB 90) is described as “Report of Gordon Leslie Douglass”, and which purports to record the temperature readings taken by Mr. B.D. Moore at the premises at some stage in early March 1997. At the commencement of the hearing before Hosking DCJ there was considerable debate as to whether or not that “Report” was admissible, during the course of which debate – which included evidence on the voir dire – the Respondent’s then counsel said (inter alia) (Black AB 16):

“… Your Honour can I announce that one of the complaints was that no arrangements have been made by the defendant (sic) to have this witness Douglass available for cross-examination. We’ve made arrangements he can be here tomorrow …”

When, on the following day, Mr. Douglass was called to give evidence (Black AB 90-93), and it became clear that it was not he, but Mr. Moore, who was said to have made the readings, objection was taken to the tender of the “Report”. Despite the fact Mr. Moore’s whereabouts were known to Mr. Douglass (Black AB 91) and that there was no evidence that it would cause undue expense or undue delay or would not be reasonable and practicable for him to be called to give evidence (Evidence Act 1995 ss. 63, 64) his Honour permitted the “Report” to remain part of the evidence.

12 But, even if one treats the contents of the “Report” as part of the evidence, the weight to be given to the various readings is, to say the least, doubtful, for it is clear that the variations in temperature which are recorded where not instantaneous variations immediately following on the turning on of the tap elsewhere in the house, but were taken after Mr. Moore had turned that tap on “full bore” and then returned to the bathroom (Black AB 103-104).

13 Even then, some examination of the recorded temperatures is called for. The temperature of the hot water alone is said to have been 67° C, which is significantly below boiling point. What is said to have been a comfortable hot and cold temperature at the shower was 37° C (98.4° F) which is normal body temperature. It would seem that when the toilet was flushed the temperature increased to 39° C (102° F). When the cold tap was opened at basin, the temperature was said to increase to 45° C (113° F) and when the kitchen sink cold tap was turned out, the temperature was said to increased to 47° C (116.6° F).

14 In considering the magnitude of the risk, it is instructive to consider the extent to which the hot water service and, in particular, the shower and bath, have been used in the period between the family moving into the property in February 1990 and the date of the accident, a period of 6 years and 9 months, or roughly 2460 days. During that time each of the Respondent and her husband would have showered on a daily basis (Black AB 67). It addition, although, in the early years, the Respondent’s two daughters had baths which were drawn for them by either the Respondent or her husband, for about 4 years, or approximately 1400 days, from the age of 7, the Respondent’s elder daughter was accustomed to shower herself (Black AB 89) and for about a year or a little more, the Respondent’s younger daughter was also accustomed to shower herself (Black AB 89). In addition, hot water would be used on a daily basis for washing up the dishes and for the washing of clothes (Black AB 67-68). Despite all this use there was no evidence before Hosking DCJ that, at any time any member of the household had been burned by hot water.

15 In considering what the Appellant might reasonably have been required to do, the nature of the premises, of the hot water service and some aspects of the plumbing in the household, need to be considered.

16 The property appears to have been an older style detached cottage mainly of brick construction, situated in the South Western suburbs of Sydney (Black AB 28-29).

17 Hot water to the premises was provided by an off-peak hot water storage tank located in the roof void, the tank sitting in a metal tray fitted with a pipe leading to outside so that in the event of the flow overflowing water was discharged to the outside of the premises. Although water was fed into the tank under pressure from the cold water system as and when the tank emptied, the water was heated by a heater fitted to the tank, and to a temperature governed by a thermostat fitted to the tank, only during off peak hours. Hot water flowing from the tank did not flow under pressure but purely by force of gravity. One is, I think, entitled to know that, until comparatively recent times, in homes in which there was an electric hot water service, that service was provided by an off peak hot water storage tank. One is, I think, also entitled to know, that, until comparatively recent times, it was not possible, with such systems, to install devices which would automatically regulate the temperature of hot water delivered at individual outlets through the household.

18 At the time when the Respondent’s family moved into the premises, the bathroom did not have a shower recess separate from the bath, the shower head being fitted to the wall of the bathroom at the end of, and facing towards, the bath. As was common in such cases immediately above the end of the bath was a faucet capable of being operated by two taps, one for hot water and one for cold water, while the shower itself was capable of being operated by two further taps, one for hot water and one for cold water. Fitted above the bath and shower head was a railing which appears to have carried a shower curtain (Blue AB 6). If one wished to shower, one could thus adjust the temperature of the water from outside the bath and before entering the shower.

19 In the light of the evidence given by the Respondent as her husband as to the complaints which they said had been made as to the hot water system, upon which complaints Hosking DCJ placed stress, it is constructive to see what was recorded in the Appellant’s records, which records (Exhibit L) were tendered by the Respondent’s counsel at trial.

20 The first complaint was said to have been made over the telephone, according to the Respondent’s husband about 3 months, and according to the Respondent about 6 months, after the family moved into the house. The second “complaint” which was said to have been made at the time of the overflow from the hot water system, was said by the Respondent to have been made about 12 to 18 months after the family moved into the house. The third – written – complaint was said by the Respondent to have been made “about 92, 93, maybe sooner”.

21 The Appellant’s records (Blue AB 181) contain an entry for 23 July 1990 which clearly relates to the occasion when the hot water system overflowed. There is a further entry for 1 October 1990, relating to the hot water service which is difficult to decipher but which seems to indicate that there was no hot water. There is a further entry (Blue AB 183) for October 1994 which entry, by reference to an accompanying invoice (Blue AB 184) dated 4 October 1994, indicates that, at the time, a new heating element and new thermostat were supplied and installed in the hot water service. Although the Appellant’s records disclose other entries relating to repairs to and work carried out at the premises – as, for example, repairs to the electric stove and the electric range, and work clearing a choked sewer – the three entries to which I have earlier referred are the only entries relating to the hot water service between the time when the Respondent’s family moved into the premises and the accident.

22 The significance of these entries is, first, that the Appellant appears to have kept records of complaints made to, and of work done by, it to the premises; and, second, that, contrary to the evidence given by the Respondent and her husband to the effect that nothing was done after the written complaint had been made to the Appellant, in 1994 – presumably in response to some form of complaint or request made by the Respondent’s husband or the Respondent – some time after the time at which the written complaint was said to have been made, a new heater and a new thermostat were fitted to the hot water service.

23 What I have earlier written, in my view, indicates that whatever risk of injury arising from the use of the hot water service existed was not great, that the Appellant was accustomed to respond to complaints in an appropriate fashion; and that nothing further on its part was called for.

24 Much stress was placed by the Respondent upon what was said to be the fact that, after the accident, the Appellant removed the hot water system and substituted a mains pressure hot water system. Upon examination, however, it is clear, first, that the work which was done to the premises after the accident was not limited to a removal of the existing hot water service and its replacement by a mains pressure system; second, that the work that was done to the premises was not done in response to any complaint about the hot water service; and, third, that, in any event, the installation of a mains pressure hot water system would not have affected the temperature of water delivered to the shower or to any tap in the house.

25 The work which was done involved a full modification of the bathroom in the premises. As described by the Respondent in her evidence (Black AB 58-59):

“They gutted the bathroom completely, took the bath out, put in a disabled shower, raised the toilet, put tap handles in the bathroom, a hand held shower so I could sit down in the shower and have a shower.
…
They put a new hot water service out the back instead of being in roof.”

(The nature of the bathroom as altered is shown in the photographs which form part of Exhibit F) (Blue AB 10-11) while the new heater (Exhibit E) (Blue AB 9) was a floor standing heater.)

26 The cost of the work involved, which work was carried out in June 1997 (Blue AB 180), and which cost included the cost of the hire of a shed to provide a toilet and shower while the work was being carried out (Blue AB 165) was in excess of $10,000.00 (Blue AB 165-166).

27 In the course of his examination in chief, the Respondent’s husband gave the following evidence (Black AB 101-102):

“Q. After the accident occurred to her did you do anything else about making a complaint about this hot water service? A. Yes I did.
Q. What did you do this time? A. I rang the Department of Housing, I contacted my doctor and got an assistance letter from him. The occupational health therapist came out and gave us a little bit of advice on what was required around the bathroom. I then went to the Department of Housing with this letter, the advice from the occupational therapist.
Q. And once again was any sort of form lodged? A. Yes, I filled out paper work and a form lodged.
Q. And after that had been done did something happen to the hot water system? A. Yes. They sent out a gentleman, senior gentleman, from the Department, he inspected the house, the hot water system, flooring, the bath and approved for replacement of the hot water system and renovation of the bathroom with the bath being removed, rails installed to hold on anti slip floors.”

while in the course of his cross-examination the Respondent’s husband gave the following further evidence (Black AB 105-106):

“Q. And you made reference to the fact that after the accident you attended, would you say, your doctor? A. Yes.
Q. Who’s that? A. Dr. Huckstep.
Q. Did you tell Dr. Huckstep what had happened, did you? A. Yes.
Q. And did you say that a surge of hot water caused your wife to faint? A. No. I said my wife had broken her neck in the bathroom and we’d been complaining about different aspects of the bathroom for some time and shortly before I spoke to my doctor, the South West Area Health Service sent out an occupational therapist who checked our bathroom, etc and to see if it was okay for Vicki to come home from hospital and on her recommendation, because I discussed it with her, I said, look, I’ve had difficulty in the past to get anything done by the Department. How do you suggest – what – you know? She said, ‘Well, look just my recommendation alone may help you however it would also help if you got a letter from the doctor saying the Vicki’s now disabled and will have difficulty using the present facilities.’”

(Since the Respondent was discharged from hospital on 21 November 1996, the conversation with the occupational therapist must have taken place prior to that day.)

28 The “assistance letter” which, so the Respondent’s husband said he obtained from Dr. Huckstep, addressed to Dept of Housing and dated 2-12-96 was in the following terms (Black AB 203):

“Vicki Watkins is applying for renovation of her bathroom.
Vicki sustained a fracture/dislocation of her cervical spine in October (sic) 96.
Her neck was operatively repaired and she is now in a hard neck brace.
Considering the injury was sustained by Vicki whilst she was showering in the bath, perhaps this bath/shower combination could be renovated on medical grounds.”

29 It is, in my view, clear that the work which was carried out in June 1997 was not a response to a complaint about excessively hot water supplied by the hot water service, but a response to a request to have the bathroom renovated so as to accommodate the Respondent’s disabilities.

30 Finally, there is the question of the relevance, or otherwise, of the installation of a mains pressure hot water service and, in particular, the question whether if such a service had been installed prior to November 1996 that would, or might, have prevented the accident.

31 As I understand it, the fact that a hot water service is a mains pressure service refers only to the fact that from the hot water delivered from the heater tank is delivered at mains pressure, a fact which has no bearing whatsoever on the supply of cold water to any tap or shower head. If, as I believe to be the case, my understanding is correct, then the fact that no such system had been installed prior to November 1996 is irrelevant.

32 For these reasons, I would propose that the Appeal be upheld, the verdict and judgment below set aside and the Respondent ordered to pay the costs of the trial and of the appeal but to have a certificate under the Suitor’s Fund 1951. There should also be an order that the Respondent repay to the Appellant the moneys paid to her under the judgment together with interest thereon at the prescribed rate from 15 November 2000 until payment.

On 13 September 2000 Hosking DCJ, SC, gave a verdict and judgment in favour of the plaintiff in the sum of $636,923, and ordered the defendant to pay the plaintiff’s costs. This is an appeal by the defendant against those orders. The Notice of Appeal raises issues both of liability and of quantum.

Background

34 On 7 November 1996 at about 7.30am the plaintiff got into the shower at her home. Her home was a house leased by her husband from the defendant. It was occupied by the defendant, her husband and two daughters, who were then aged about 11 and 8. While she was in the shower, the water became hotter. She fell and fractured bones in her spine. The extent of her injuries may have been greatly worsened but for a fortunate circumstance – her husband knew how to treat injured people safely by reason of his occupation as a tow truck driver, and this enabled him to avoid further injury to her, and in particular, quadriplegia, while he cared for her before an ambulance came and took her to Liverpool Hospital.

The trial judge’s findings on liability

35 At the time of the accident the plaintiff was 37. She had been married most of her adult life. She and her family had occupied the premises from 1990 onwards.

36 The trial judge made express findings, or summarised the evidence in a manner indicating acceptance of it, in the following way:

“The premises had what has been described as a gravity fed hot water system which was located in the roof space of the cottage. This hot water system appears to have been of some age at the time the plaintiff, her husband and children moved into the property.
When they moved in, the plaintiff and Mr Watkins noticed that the plumbing system in the property delivered very hot water. The water was so hot that, according to the plaintiff (and corroborated by her husband) they could not put their hands under it without mixing cold water with it.
In addition, the hot water service was very sensitive in that the plaintiff said that they had to adjust the taps very accurately to obtain water of a bearable temperature to bathe in.
The plaintiff said that if she turned the hot water down a little whilst in the shower, the shower would go cold. She said that if, when the water was adjusted to a comfortable temperature she was in the shower and a cold tap was turned on elsewhere, the water in the shower would become a lot hotter, so much hotter as to be uncomfortable. She said that, at times, she felt obliged to shout out to other members of her family when she was under the shower not to turn cold water taps on or not to leave cold water taps turned on. The plaintiff said, ‘I told the kids from when they were little not to touch the water if anyone was in the shower’.
Mr Watkins gave evidence that within a matter of weeks of moving into the premises he experienced what he described as a ‘hot spell’ whilst under the shower. He said, ‘It heated me up a little bit’ and that it was extremely hot causing him to have to step back out of the shower spray as he could not stand under it with that hot temperature. Mr Watkins said that it was discussed in the family that the taps should not be turned on if anyone was in the shower. Mr Watkins said that in his case at times he did turn on other taps in the house while somebody was in the shower, but he tried not to.”

37 The plaintiff and her husband made three complaints about the hot water system.

38 First, about six months after moving into the premises, her husband:

“rang the defendant’s Liverpool office. He asked the person to whom he spoke whether anything could be done about the hot water service because they were frightened that the children were going to get burnt from the hot water. In the result, nothing was done in response to that complaint.”

39 The second complaint was made in the following circumstances:

“at some time later a leak developed somewhere in the roof area and … water was running down from the water system on the outside of the roof. A plumber arrived to attend to the problem and told them that water was coming from ‘the overflow’. Both the plaintiff and Mr Watkins said that Mr Watkins asked the plumber whether there was any way that the temperature of the water heater could be turned down. However, despite that request it was not turned down.”

The trial judge declined to find that the plumber had reported that complaint back to the defendant.

40 The third complaint was made after the second, and about three years before the accident:

“the plaintiff and her husband went to the defendant’s Liverpool office and Mr Watkins filled out a form of some kind there in which he said that he wanted to complain about the hot water service because the water was becoming too hot. Both the plaintiff and Mr Watkins said that the completed form was handed to an officer of the Department of Housing at the desk at the Liverpool office however, again, no action was taken to remedy the problem.”

The plaintiff and her husband did not retain a copy of the form. The defendant did not produce the form. There is no evidence of what was recorded in the form.

41 The trial judge summarised the plaintiff’s evidence as to how the accident happened which, as will be seen, he accepted, as follows:

“The plaintiff said that she got into the shower and adjusted the temperature in the normal way and began showering. She said that she recalled whilst in the shower the hot water becoming hot. She said that her next recollection was waking up whilst prone in the bottom of the bath. She said that she had no recollection of how she fell and that she woke with her head on the back of the bath. She said she had then a pain in her neck and a pain in her lower back. She said she tried to pull herself up and felt sick. She called for assistance and apparently attracted the attention of one of her children, who, in turn, called her husband who came into the bathroom to assist her. Mr Watkins found the plaintiff lying in the bath tub face up and Mr Watkins lifted the plaintiff and took her into their bedroom. …
She was cross-examined about the circumstances of her fall. The plaintiff said she was not in a position to say what happened to the shower before she fainted. However, she could say that it went hot and that it was not at the temperature at which she set the shower when she first entered it. She said that she was facing towards the water and that she felt the water go hot almost instantaneously. She said she remembered it all down her front.”

42 The operative reasoning of the trial judge then proceeded as follows.

43 The trial judge noted the defendant’s concession that it owed the plaintiff a duty of care.

44 The trial judge also found that that duty of care was breached:

“there was a breach of the defendant’s duty of care because a system which contained water which was so hot and with taps and/or plumbing so sensitive that the turning on of a cold tap elsewhere in the house produced scalding water presented an obvious danger to occupants of the premises. I find as a fact that the defendant knew of this danger because the plaintiff’s husband had twice reported it to the Liverpool office.”

45 The trial judge then found that the defendant’s breach of duty caused the plaintiff’s fall. He said:

“a sudden burst of hot water from the shower was the immediate cause of the plaintiff’s fall. I have come to that conclusion for the following reasons:
1. The problem of hot water suddenly flowing from an outlet when a cold tap was turned on elsewhere was a condition which in fact existed in this house at the time.
2. There is evidence from Louise Watkins [the plaintiff’s daughter, then aged 8] that she turned on the cold tap when, unknown to her at the time the plaintiff was under the shower. That evidence was not contested.
3. That situation was likely to produce a rapid rise in the temperature of the water in the shower.
4. The plaintiff has said that she recalls being struck with hot water from the shower before her fall and, in my view the plaintiff appeared an honest and reliable witness.
5. Mr Moore, a plumber, took readings of the temperature under the shower head not too long after the accident occurred. He did so by turning on various other taps within the property in accordance with a report he prepared on the letterhead of Douglass Plumbing, 11 March 1997. Mr Moore recorded that the water temperature at the shower with the hot water tap on only was sixty seven degrees centigrade. He also said that a comfortable hot and cold temperature from the shower was a temperature of thirty seven degrees centigrade and that when the cold tap was turned on at the kitchen sink to the shower adjusted to a comfortable temperature the shower temperature increased to forty seven degrees centigrade, that is to say a rise of ten degrees.
6. Dr Conrad, as I indicated, said, and I accept that a rise in water temperature of that magnitude can cause a person to faint, especially a person such as the plaintiff who had low blood pressure.”

The trial judge said that material in the notes made by staff at Liverpool Hospital which pointed against the above findings should be discounted as containing inaccuracies caused by the plaintiff’s distress while being treated at the hospital. He also said that while it was possible that the plaintiff fell because of dizziness or vertigo occasioned by her low blood pressure, that was less probable as an explanation than “the sudden unexpected increase in temperature”.

46 Finally, the trial judge found that the damage suffered by the plaintiff was reasonably foreseeable by the defendant:

“it was submitted for the defendant that the defendant was not on notice of the plaintiff’s condition of low blood pressure and that an injury of this kind was not foreseeable. In my view the plaintiff’s injury was reasonably foreseeable by the defendant. It is true that the defendant would not have known of the plaintiff’s low blood pressure but it was foreseeable that a sudden burst of very hot water could have come from the shower head. As was submitted for the plaintiff, once the danger is present it does not matter that the precise mechanism of the accident may not have been foreseen and I agree with the plaintiff’s submission that even if the plaintiff had slipped while trying to get away from a sudden burst of hot water, the defendant would have been nonetheless liable.”

The parties’ contentions in outline

47 At a simple factual level the case of the plaintiff in substance was as follows. The structure of the hot water system meant that a user of the shower could not stand in it if a cold tap was turned on elsewhere in the house because that produced a sudden and sharp rise in temperature, and was such that that user had to move out of the water hastily. The hot water system was thus unsafe and dangerous. The Watkins family perceived this to be so great a problem that they made three complaints about it, two direct to the defendant and one to a plumber sent by the defendant. Further, the family perceived the problem to be so serious that a strict rule was introduced that no cold tap was to be turned on while anyone was in the shower. The trial judge found that the change in temperature at 7.30am on 7 November 1996 caused the plaintiff’s injuries, and paragraph 3 of the Notice of Appeal, which challenged that conclusion, was abandoned in written submissions. The problem was overcome after the accident by the substitution of the old hot water system by a mains pressure hot water system and there was no evidence that that was unduly expensive. In essence the trial judge accepted that case.

48 There were many aspects of the trial judge’s reasoning which the defendant did not challenge on appeal. The response of the defendant to the trial judge’s reasoning and to the plaintiff’s case operated at two levels.

49 The first response of the defendant was at a factual level of equal simplicity to that which the plaintiff employed. The defendant said that the Watkins family cannot have perceived the hot water system to be dangerous because they only complained three times in six years and they did not follow up the complaints. Further, the plaintiff persistently showered when she could have taken baths in the same way that her daughters did. The plaintiff had had about 1500 showers before the accident without any incident and without slipping and falling. In short, the defect in the hot water system was not perceived to be, and was not, a matter of real consequence; it was no more than annoying and inconvenient. Hence the hot water system was not unsafe, harmful or dangerous.

50 It might well be said that the items of evidence on which the defendant’s conclusion is based, whether or not they are strong enough to support it, show at least that the plaintiff’s case, if it is to succeed, requires the court to proceed close to the extreme limits of recovery. That is because the type of problem experienced with the hot water system is a not uncommon one in many Australian houses. While it is possible that all persons injured as the plaintiff was have a valid claim in negligence, that possibility calls for a close analysis of the legal reasoning employed and not employed by the trial judge. It was that analysis which the defendant embarked on in its second level of response to the plaintiff’s argument with a view to showing that the plaintiff was seeking to proceed not merely close to the extreme limits of recovery, but over them.

51 The defendant’s arguments in relation to the second level of its response may be grouped as follows. The defendant said, first, that the trial judge failed to identify or define the extent or scope of the duty of care which he found the defendant to have breached. Secondly, the defendant said that the plaintiff had failed to prove, or even tender any evidence at all to prove, what standard of care was appropriate for the defendant. Thirdly, the defendant said that the trial judge determined the issue of breach solely by reference to foreseeability of a risk of injury to the plaintiff, and paid no regard to a reasonable man’s response to the risk created by evaluating the magnitude of the risk and the degree of probability of its occurrence; the expense, difficulty and inconvenience of taking alleviating action; and any other conflicting responsibilities which the defendant had. Fourthly, the defendant said that the injury suffered by the plaintiff was too remote because it was not reasonably foreseeable: even assuming that it was reasonably foreseeable that a rise in water temperature might cause a user of the shower to slip, fall and thereby suffer physical injury, it was not reasonably foreseeable that it would have a psychological impact causing a vaso vagal attack in the manner which Dr Peter Conrad, whose evidence the trial judge appeared to accept, thought had happened.

52 There is one issue that arises out of the contest between the parties at a factual level that could have significance for the determination of the legal issues raised by the defendant. That relates to the temperature of the water under the shower after a cold tap was turned on elsewhere in the house. It is therefore convenient to deal with that issue at the outset.

Was the water “scalding”?

53 The trial judge, in concluding that the defendant was in breach of duty, said that the water under the shower became “scalding” when a cold tap was turned on elsewhere. Elsewhere he called it “very hot” and “hot”. He also said that there was “a rapid rise in the temperature” and described that rise as “sudden”.

54 The defendant’s argument about the finding that the water was “scalding” was that the only evidence supporting it was that of Dr Conrad in his report of 12 March 1998. That report contained the following description of the accident:

“Apparently the hot water system malfunctioned and [the plaintiff] was suddenly [scalded] with hot water from the shower and as a result she blacked out.”

In cross-examination Dr Conrad said that the word “scalded” would have been the plaintiff’s word. He explained his understanding of it thus:

“it is hot temperature which is uncomfortable and causes some painful reaction, that is my understanding and with scalding it usually means a hot liquid that is my understanding, but it is a lay term”.

55 The defendant then submitted that there was a disconformity between what the plaintiff told Dr Conrad and what she and her husband told the court. The defendant pointed to the following descriptions given by the plaintiff or her husband of the temperature of the water either during the general operation of the system or when the accident happened: “Uncomfortable” (Black 30E), “too hot” (Black 32D), “the hot water going hot” (Black 34L), “the water [got] hot” (Black 69W), “experienced a hot spell under the shower [which] heated me up a little bit” so that the water felt “Extremely hot. I had to step back from the shower and sort of go to turn it down. I couldn’t actually stand under it” (Black 95B-E). The defendant also pointed to evidence from the plaintiff that she had never burned herself in the hot water (Black 64X). The defendant noted that on or about 11 March 1997 a plumber, Mr Moore, measured a rise in the water temperature of the shower from 370C to 470C when the kitchen sink cold tap was turned on (Blue 159). That rise was not measured instantaneously: the reading of 470C was made about ten seconds after Mr Moore had turned the kitchen sink cold tap on, in which period of time he moved from the kitchen to the bathroom (Black 103L-104M). Finally, the defendant said that “no witness was asked about, nor did any of them speak to, the capacity of water in the subject premises to inflict pain, blister skin, or otherwise cause physical harm.”

56 On the other hand, there was evidence suggesting that the rise in temperature was acute. The plaintiff’s husband said in his first complaint to the defendant “Suddenly it will go hot in our house” (emphasis added: Black 95P). The plaintiff said that in that complaint her husband “asked the housing commission if there was anything they could do about the hot water service because we were frightened that the kids were going to get burnt” (Black 30V). The plaintiff’s husband described his second complaint, to the plumber, thus:

“I asked him if he could take a look at any of the problems that were concerning us regarding the suddenly reaching hot temperatures and whether or not he could do anything about adjusting the system or something … “ (Black 96L-M)

57 “Scalding”, “scald” and “scalded” are words with a range of meanings in the present context. At one end of the range, to “be scalded” means to be burnt with hot liquid just short of boiling point or with steam. At the other end of the range, to “be scalded” is to be affected painfully by hot liquid. The evidence gives no support to the view that turning on a cold tap in one part of the house produced water in the shower which was “scalding” in the sense of being just short of boiling point. Indeed it is highly improbable that the water produced by turning on the hot tap but not the cold was ever “scalding” in that sense, and Mr Morris’ reading was only 670C. However, the evidence does suggest that the water was scalding in the sense that it had had a painful effect on the user of the shower, and one reason for the painfulness of the effect was the suddenness in the change of temperature. It seems likely that that was what the trial judge meant by “scalding”, because he said of the plaintiff’s evidence:

“She said that while the hot water service concerned her because it was simply too hot and that at times she had to pull her hand away because the hot water was uncomfortable, that she had, never in fact, burned herself. I infer that no other member of her family was actually burned by the hot water either.”


Accordingly, while the defendant is correct in submitting that the water was not “scalding” in an extreme sense of that word, it does not follow that it was no more than inconvenient. A sudden change in temperature was capable of causing a user of the shower to seek to move away very quickly, and it remains an open possibility that that led to a reasonably foreseeable risk of harm.

The role of foreseeability

58 Before proceeding to consider the four heads under which the defendant grouped its legal arguments, it is convenient to set out a passage from Minister Administering the Environmental Planning and Assessment Act, 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268 at 295-296 on which the defendant relied. Glass JA there said:

“Since the proximity relationship permeates much of the discussion which follows, it is as well to say something at this point about ‘the foreseeability of the plaintiff’s damage’ which is sometimes equated with it. The blunt notion that they are interchangeable, although encouraged by earlier decisions, has been sharpened by subsequent analysis which has rejected ambivalent terms such as likely and unlikely and displaced reasonable foreseeability in favour of the more precise term reasonably foreseeable possibility. Coupled with this a recognition has emerged that the foreseeability inquiry at the duty, breach and remoteness stages raises different issues which progressively decline from the general to the particular. The proximity upon which a Donoghue type duty rests depends upon proof that the defendant and plaintiff are so placed in relation to each other that it is reasonably foreseeable as a possibility that careless conduct of any kind on the part of the former may result in damage of some kind to the person or property of the latter: Chapman v Hearse (1961) 106 CLR 112, at 120, 121. The breach question requires proof that it was reasonably foreseeable as a possibility that the kind of carelessness charged against the defendant might cause damage of some kind to the plaintiff’s person or property: Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd; The Wagon Mound (No 2) [1967] AC 617, at 642, 643, Wyong Shire Council v Shirt (1980) 54 ALJR 283, at 285, 286; 29 ALR 217, at 219-222. Of course, it must additionally be proved that a means of obviating that possibility was available and would have been adopted by a reasonable defendant, ibid. The remoteness test is only passed if the plaintiff proves that the kind of damage suffered by him was foreseeable as a possible outcome of the kind of carelessness charged against the defendant: Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, at 390.”

59 One difficulty with this passage is that it may assume that “proximity” is an essential element in liability for negligent acts. To the extent that it did make that assumption, it received some support from later High Court authority. But in Sullivan v Moody (2001) 183 ALR 404 at [43]-[48] Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ indicated that the role of “proximity” is a limited one. They said:

“In Donoghue v Stevenson [[1932] AC 562], the House of Lords, by a majority of three to two, held that such a duty was owed by the manufacturer of a beverage to a consumer of a beverage where the manufacturer sold the product to a distributor and it was ultimately sold to the consumer in circumstances such that the consumer could not discover a defect in the beverage by inspection. It was established that it was not necessary for a plaintiff to show that a case was covered by, or closely analogous to, existing precedent, and that there were general principles by reference to which a claim in negligence fell to be decided. The first principle was that, in order to support an action for damages for negligence, a plaintiff must ‘show that he has been injured by the breach of a duty owed to him in the circumstances by the defendant to take reasonable care to avoid such injury’ [[1932] AC 562 at 579 per Lord Atkin].
Lord Atkin, noting how difficult it was to find in the authorities statements of general application defining the relations between parties that gave rise to that duty, and pointing out that there must be some element common to all the particular relations which had been held to involve a duty said [[1932] AC 562 at 580]:
‘To seek a complete logical definition of the general principle is probably to go beyond the function of the judge, for the more general the definition the more likely it is to omit essentials or to introduce non-essentials. The attempt was made by Brett MR in Heaven v Pender , in a definition to which I will later refer. As framed, it was demonstrably too wide, though it appears to me, if properly limited, to be capable of affording a valuable practical guide’.
In Heaven v Pender , Brett MR, addressing the question what is the proper definition of the relation between two persons which imposes on one of them a duty to observe, with regard to the person or property of the other, care to prevent injury, said [(1883) 11 QBD 503 at 509]:
‘… whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.’
Ten years later, in Le Lievre v Gould [[1893] 1 QB 491 at 504] A L Smith LJ described that as a statement of principle ‘that a duty to take due care [arose] when the person or property of one was in such proximity to the person or property of another that, if due care was not taken, damage might be done by the one to the other’. That statement appears to refer to a limited form of proximity: proximity of person or property. But Lord Atkin said that it was not to be understood as limited to physical proximity. It was intended ‘to extend to such close and direct relations that the act complained of directly affects a person whom the person alleged to be bound to take care would know would be directly affected by his careless act’ [[1932] AC 562 at 581]. Even so, his Lordship was speaking of ‘close and direct relations’. He went on to acknowledge that there will no doubt be ‘cases where it will be difficult to determine whether the contemplated relationship is so close that the duty arises’ [[1932] AC 562 at 582].
The references to ‘relations’, and to the problem of deciding which relations are sufficiently proximate to give rise to a duty of care, in part reflects the previous history of the law of negligence, the focus of attention often being particular categories of relationship. The search was for a unifying principle which informed the decisions in respect to those categories. The actual conclusion in Donoghue v Stevenson was that, at least in certain circumstances, the manufacturer of a product intended for human consumption stood in a sufficiently proximate relation to an ultimate consumer of the product to attract a duty of care. But Lord Atkin, in his formulation of principle, was seeking to find ‘a valuable practical guide’, and warned against ‘the danger of stating propositions of law in wider terms than is necessary’ [[1932] AC 562 at 583-584]. Consistently with his reasoning, he might also have warned against the danger of stating such propositions in more categorical terms than is appropriate.
As Professor Fleming said [Fleming, The Law of Torts , 9th ed, (1998) at 151], ‘no one has ever succeeded in capturing in any precise formula’ a comprehensive test for determining whether there exists, between two parties, a relationship sufficiently proximate to give rise to a duty of care of the kind necessary for actionable negligence. The formula is not ‘proximity’. Notwithstanding the centrality of that concept, for more than a century, in this area of discourse, and despite some later decisions in this Court which emphasised that centrality [eg Jaensch v Coffey (1984) 155 CLR 549 especially at 584-585 per Deane J; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 52 per Deane J], it gives little practical guidance in determining whether a duty of care exists in cases that are not analogous to cases in which a duty has been established [ Hawkins v Clayton (1988) 164 CLR 539 at 555-556 per Brennan J; Hill v Van Erp (1997) 188 CLR 159 at 210 per McHugh J; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 96-97 [270]-[274] per Hayne J]. It expresses the nature of what is in issue, and in that respect gives focus to the inquiry, but as an explanation of a process of reasoning leading to a conclusion its utility is limited.”

60 Another matter to be borne in mind in considering Glass JA’s analysis is that he regarded reasonable foreseeability as an “undemanding” standard (Shirt v Wyong Shire Council [1978] 1 NSWLR 631 at 641). That particular view is a view which the law in future, and indeed perhaps at present, may not reflect.

61 It must also be remembered that reasonable foreseeability is a necessary condition for liability, not a sufficient condition.

62 Subject to those caveats, the analysis of Glass JA must be given the deep respect any pronouncement of his, particularly in the field of personal injury litigation, deserves. Indeed, though the defendant said it could not point to any authority applying Glass JA’s analysis, there is some support for it. Thus in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 Mason J said that “foreseeability in connection with the existence of the duty of care” involved “a more generalised inquiry” than “foreseeability in the context of breach of duty”. See also Bus v Sydney County Council (unreported, 4 April 1986, NSWSC), where at p 15 Wood J said he found the analysis to be “of considerable assistance”; G G Rudge v Murray Tractors Importers Pty Ltd (unreported, 9 November 1989, NSWCA) per Hope AJA at p 9, Gleeson CJ and Meagher JA concurring; Miletic v Capital Health Commission (1992) 108 FLR 213 at 215-216 per Higgins J; and Ratcliffe v Jackson (unreported, 27 May 1993, Tas FC) at p 7 per Underwood J.

Failure to define the scope of the duty

63 At the trial the defendant admitted that it owed the plaintiff a duty of care. By itself this did little to narrow the controversy. Defendants in negligence litigation, like lawyers discussing the tort of negligence, sometimes treat the duty of care as a very general matter which is given content only by debate about what the appropriate standard of care imposed by that duty is. On the other hand, sometimes analysis of the existence of a duty of care proceeds concurrently with inquiries into what its content or standard is.

64 The defendant’s written submissions proceeded as follows. The general submission was that the trial judge “failed to identify or define the content or scope of the duty of care breach of which he found”. The defendant then said: “Until the nature, quality or extent of the duty is so defined, it is not possible to say whether reasonable care has been taken to fulfil that duty which is owed”. This submission was supported by reference to various cases. As the defendant said in a written submission filed after the close of argument, one of them has been attacked to some degree in the High Court since. Further, the approach taken in another has been overruled in a case decided after the close of argument, namely Sullivan v Moody (2001) 183 ALR 404. However, the proposition advanced is not controversial. The defendant then said:

“The content of the duty of care owed by a landlord to a non-tenant occupant was considered by the High
Court in Jones v Bartlett & Anor (2000) HCA 56; (2000) Aust Torts Reps 81-582; see in particular Gleeson CJ at para 56 – ‘the duty was a duty to take reasonable care to avoid foreseeable risk of injury to the appellant; the practical extent of the duty was governed by the circumstances of the case’; Gummow and Hayne JJ at paras 195-197.
The learned trial judge, having failed to identify the circumstances of the case and the manner in which, viewed prospectively, they called for reasonable steps to be taken by the defendant/landlord, failed to decide a critical and essential pre-condition to the imposition of liability upon the defendant.”

65 In oral argument the defendant referred to the following observation of Mahoney JA in Phillis v Daly (1988) 15 NSWLR 65 at 74, which was quoted by Gleeson CJ in Jones v Bartlett (2000) 176 ALR 137 at [24]:

“There are dangers on any premises. A room may have a desk or a table. There is a danger that, if I fall, I will hit my head on it and my skull will be fractured. If the desk or table were not there, I would suffer little or no harm. And the danger is obvious: people do slip and fall. And the injury may be serious. But the obvious foreseeability of such an injury and its seriousness does not involve that, if a person falls and hits his head on a table, there must have been a breach of duty by the occupier of the room. And this notwithstanding that people may live without tables and that tables may be easily removed.”

The defendant also quoted the following remarks of Gleeson CJ in Jones v Bartlett at [25]-[26]:

“It is interesting, and not without relevance, to speculate about how many objects in and around an ordinary dwelling house would constitute a potential hazard to a person who behaved as carelessly as the appellant.

Item eight is an allowance for future domestic assistance. In that respect I note that on the life tables the plaintiff has a life expectancy of forty years. I think it reasonable to allow three hours per day for seven days per week for forty years discounted on the three percent tables and reduced by fifteen percent for vicissitudes. There are varying factors in the future which may increase that amount and which may decrease it which I have done my best to take into account. The fact that the plaintiff’s children will eventually leave home and leave less housework to be done is one factor which might decrease that figure, however, the fact that on the medical reports the plaintiff’s condition is likely to get worse may counteract that effect. Accordingly I allow for future domestic assistance $312,045.”

110 The defendant submitted:

“His Honour plainly misunderstood the evidence; the plaintiff’s husband spoke of ‘looking after (his) wife’ two hours a day ‘actually, personally, physically on my wife’ (T100 line 5) in the first six to seven months after the accident.
Some of that period of time (four or five weeks) involved two periods in hospital when no need is demonstrated by her circumstances, nor proved by her evidence or that of her husband.
South Western Sydney Area Health Service occupational therapy notes, 21 November 1996 (Exhibit A), demonstrate that at the time of discharge she was showering with assistance (not in need of total care for that activity) and was able to toilet independently. She was ambulatory.
No doctor, nor any occupational therapist, proved in the evidence a need for any activities of personal hygiene, dressing, or the like, as being needed by the plaintiff after discharge from hospital.
The care needed by the plaintiff, on the evidence, is restricted to a few weeks after each hospitalisation.
What her husband or daughters in fact did does not prove reasonable need.
With respect to services provided to her husband and her daughters:
(a) Sullivan v Gordon ((1999) 47 NSWLR 319) is wrong;
(b) the loss compensated for by His Honour’s award above two hours a day for a few weeks after each period of hospitalisation is either:
(i) a consortium claim by the husband;
(ii) a third party relational claim by the daughters;
(iii) and neither of those claims is (and in respect of the children’s claim, never has been) permissible, and the characterisation of that loss as the plaintiff’s loss is neither self-evident nor logical.
The plaintiff’s evidence at T84 and 85 was either overlooked or misunderstood by His Honour; it denies both the need and the quantification by His Honour at 21 hours per week.”

111 It is to be noted that the submission that Sullivan v Gordon was wrong was only formal: the defendant did not seek leave to reargue its correctness.

112 On future economic loss, the defendant submitted:

“The submissions made immediately above are repeated; in addition, to allow 21 hours per week for approximately 40 years must proceed from a misunderstanding of the evidence referred to, or oversight of that evidence, and is insupportable without medical or para-medical evidence of the present or likely future need.”

113 The evidence to which the defendant referred at pages 84 and 85 of the transcript was evidence summarised by the defendant thus:

“She vacuums, dusts, sweeps, cleans the hand basin and toilet, does some gardening, sweeps the paths, drives the daughters to school, picks them up, takes her daughters shopping, and there is evidence from her husband that he sometimes assists with the shopping but by no means all the time.”

The defendant submitted that to allow three hours per day for seven days per week was far too high because the plaintiff had done after the accident substantially the things which she had done before the accident. The defendant submitted:

“One would at the very least reduce the figure allowed by two-thirds or by such other mechanism or proportion that your Honours as a matter of judgment come to.”

114 In fact the evidence of the plaintiff was much more qualified than the defendant submitted. She said that she could do “some forms” of housework “occasionally”. She said that she did “some gardening” when “I feel able to”.

The first six months

115 So far as the first six months after the accident are concerned, the figure of $21,840 may be too high to the extent that it includes periods in hospital. During those periods the bulk of the care was carried out by hospital staff. However, it is open to infer that the husband cared for the plaintiff to some extent while she was in hospital; that appears to be the modus operandi of modern public hospitals, and not only public hospitals.

116 The criticism advanced by the defendant of the trial judge that he misunderstood the husband’s evidence requires it to be set out.

“Q. In that total period which we’ve heard 6 or 7 months, I think, of that order, what, if anything, was she able to do for herself?

A. To start with next to nothing.

Q. Matters of personal hygiene --

A. Personal hygiene, bathing.

Q. – such as bathing and so on. Who was doing those for her?

A. I was bathing her. I was dressing her, assisting with meals and doing all --

Q. You mean assisting with helping her eat, you mean?

A. Well, I was making the meals and assisting to feed them to her. She’d have a little bit of difficulty there at first lifting her arms et cetera or holding things. Her grip was a bit weak in one of her hands. All the aspects of basic living.

Q. And over that 6 or 7 month period how many hours a day would you say you were spending looking after your wife?

A. Probably 2 hours a day actually, personally, physically on my wife.

Q. Before the accident – the household domestic activities, mopping, vacuuming, washing, cooking, all of those things, who did them?

A. My wife Vicki did them all.

Q. And in this 6 or 7 month period who was doing those things?

A. I was.

Q. Can you tell me how many hours a day that took as well as the two hours you spent actually on her?

A. At first when I didn’t know what I was doing it was probably taking me 10 or 12 hours a day but I got it down to 4 or 5 now.

Q. I’m dealing with this period 6 or 7 months after the accident, do you understand?

A. Between 4 to 7 hours daily.

Q. That’s on the ordinary household activities?

A. On the ordinary household chores.”

Beyond one clarificatory question, that evidence was not the subject of cross-examination.

117 The defendant’s submission appeared to be that allowance should only be made for assistance for two hours per day in the few weeks after each hospitalisation. The defendant estimated that as equating to about $5,000; alternatively it was prepared to allow two hours per day for thirty weeks at $15 per hour, which produced a figure of $6,300.

118 The defendant’s stress on the two hours per day spent by the husband “actually, personally, physically” looking after the plaintiff as the upper limit for recovery would lead to an unduly restricted outcome in several ways.

119 First, some of the household domestic activities carried out by the plaintiff before the accident and by her husband after it which were distinct from the two hours a day of personal care were carried out for the benefit of the daughters. Their food had to be prepared, their clothes washed, their parts of the house cleaned. Sullivan v Gordon decided that the cost of carrying out those activities was a legitimate head of damage. The defendant submitted that Sullivan v Gordon was factually distinguishable on the basis that there was no-one who could care for the plaintiff’s child in that case apart from the plaintiff, and the child was totally dependent on her. It is true that the facts were different, but the statements of principle cover the present facts.

120 Secondly, some of the household domestic activities carried out by the plaintiff before the accident and by the husband after it were carried out for the benefit of the husband. Sullivan v Gordon contains dicta to the effect that that too is a head of recoverable damage: see at [6] per Mason P.

121 Thirdly, some of the household domestic activities carried out by the plaintiff before the accident and by the husband after it were carried out for the benefit of the plaintiff herself. The cost of that must be a recoverable head of damage.

122 Fourthly, three judges in the High Court which decided Van Gervan v Fenton (1992) 175 CLR 327, namely Brennan, Deane and Dawson JJ, stated two relevant propositions. The first was that where domestic services were undertaken, as part of mutual give-and-take by person in a marital relationship, they cannot be converted into additional services necessary to attend to the accident-caused needs of an injured plaintiff in circumstances where they would have been performed in the same way and to the same extent in any event. The second proposition was that those services would be taken out of the area of the ordinary give-and-take to the extent that the injuries to the injured plaintiff precluded him or her from providing any countervailing services; to that extent, the continuing gratuitous services provided by the other person should be treated as additional services which have been or will be provided by him or her to look after the accident-caused needs of the plaintiff. The first proposition might well exclude recovery for certain of “the ordinary household chores”, as the plaintiff’s husband described them. The second proposition appears to negate that outcome so far as matters like gardening are concerned to the extent that the plaintiff can no longer provide countervailing services.

123 In all the circumstances there appears to be no justification for reducing the $21,840, except possibly in relation to the periods while the plaintiff was in hospital. However, a reduction to allow for the no doubt lower level of services provided by the husband while the plaintiff was in hospital would be tinkering in view of the fact that the husband probably provided some services to the plaintiff in hospital and had to provide services for himself and the children in any event at these times. Hence no reduction should be made.

May 1997 to trial

124 The defendant submitted that the mere fact that services were provided by the husband did not establish that the plaintiff had a need for them. Again, the evidence of the plaintiff and of some of the doctors supports the conclusion that there was in truth a need. The husband’s evidence on this point was:

“Q. So from that time to the present time she’s taken over matters of personal care such as washing herself and feeding herself and dressing herself and things of that nature, correct?

A. Not 100 per cent.

Q. What do you have to help with?

A. Well, I still have – she has difficulty with some clothing --

Q. With buttons and things like that?

A. Yes and sometimes pulling different garments over her head and taking them off.

Q. Putting it to one side for a moment that limited assistance that you provide, she’s otherwise independent of personal care, isn’t she?

A. Yes.

Q. But your role in doing housework, has that continued?

A. Yes.

Q. Right up to date?

A. Right up to date.

Q. What sort of things do you do nowadays?

A. Meal preparation, washing, ironing, cleaning, garden chores, shopping, children to school.

Q. How many hours a day would you say nowadays you’re doing on these sorts of household tasks?

A. Four to six maybe.

Q. Four to six what?

A. Hours.”

There was no cross-examination on that evidence.

125 The trial judge reduced the husband’s figure of four-six hours to three hours for the sound reasons he gave. The defendant contended that the reduction should have been much greater. For at least part of the relevant period there are reasons for thinking that even three hours may be a little high, but as explained below it is simpler to make an adjustment to the figure for the period after the trial than to seek to adjust this figure. Apart from those matters to be referred to below, the figure selected does not appear so wrong as to justify interference with it by this Court.

After the trial

126 Here again the trial judge selected three hours. The defendant contended in effect that the correct figure should have been one hour, on the assumption that all its other submissions were rejected. The trial judge’s approach in this area appears more vulnerable than in the earlier two. Though the plaintiff’s condition was expected to worsen in some ways, the fact is that it had actually improved in others (for example, back soreness) and was expected to improve in yet others (for example, improvement in neck function). Further, daughters aged between 11 and 8 in 1996 would be likely to tend to create increasing amounts of housework until they reached the age of about 17, at which point even if they continued to live with their parents, they would tend to make less mess and to spend less time at home. Further, the difference between what the plaintiff said she did in terms of driving the children to school (apparently routinely) and what the husband said she did (not very often) suggests that her need is less great than he perceived it to be, and that by the time of the trial there had been a significant improvement in her condition. Similarly, though the plaintiff had been advised to limit her neck movements while shopping, she is in fact capable of shopping to some significant degree. Those signs of improvement cast a doubt over the trial judge’s reasoning not only for the period after the trial, but also for at least part of the period from May 1997 up to the trial. However, it seems simpler, given the indeterminacy of the exercise, to allow for the difficulty by leaving the figure for the May 1997-trial period untouched, while reducing the figure for the post trial period.

127 An appropriate course is to reduce the trial judge’s figure for the post trial period by one-third. That makes it $208,030 instead of $312,045. That in turn produces a verdict of $532,908.

Orders

128 On the above reasoning, the defendant has enjoyed success to a significant degree in gross dollar terms, though the success is less in percentage terms. However, the bulk of the written and oral arguments were devoted to issues of liability on which the defendant failed, and the defendant also failed on all quantum questions except one. In the circumstances the defendant should pay half the plaintiff’s costs of the appeal.

129 The orders proposed are as follow:

1. The appeal is allowed.

2. The verdict of the trial judge is set aside.

3. In lieu of the verdict of the trial judge, there will be a verdict for the plaintiff in the sum of $532,908 with judgment accordingly with effect from 13 September 2000.

4. The defendant is to pay half of the plaintiff’s costs of the appeal.

5. It is noted that the costs order made by the trial judge will stand.

I agree with Heydon JA.

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(1) (1996-1997) 188 CLR 313; 146 ALR 572;

(2) [2000] HCA 56; 75 ALJR 1; 176 ALR 137

(3) (1979-80) 146 CLR 40, 47-48

(4) supra

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