Partridge v Hobart City Council - [2012] TASFC 3

[2012] TASFC 3

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: Partridge v Hobart City Council [2012] TASFC 3

PARTIES:  PARTRIDGE, Moira Kathleen
  v
  HOBART CITY COUNCIL
  MICHAEL TREZISE t/as TREZISE LAWYERS
  BEHRAKIS, Peter
  BEHRAKIS, Victoria Ann
  BEHRAKIS, Dennis
  BEHRAKIS, Maria

FILE NO/S: 20/2011
JUDGMENT

APPEALED FROM: Partridge v Hobart City Council [2010] TASSC 62

DELIVERED ON:  27 July 2012
DELIVERED AT:  Hobart
HEARING DATE:  7 – 9 September 2011
JUDGMENT OF:  Crawford CJ, Blow and Wood JJ

CATCHWORDS:

Damages – Measure and remoteness of damages in actions for tort – Measure of damages – Deductibility of specific benefits and amounts – Pensions and superannuation benefits – Disability support pension.

National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569; Redding v Lee (1983) 151 CLR 117, applied.
Muscat v Statewide Industries Pty Ltd [1988] 1 Qd R 637; Renehan v Leeuwin Ocean Adventure Foundation Ltd (2006) 17 NTLR 83, followed.
Sorenson v Woolnough [1989] Tas R (NC) 15; A32/1989; [1989] TASSC 36; Burbury v Sievers A83/1994; [1994] TASSC 132, overruled.

Aust Dig Damages [52]
Damages – Particular awards of general damages – Tasmania – Back, knee and hand injuries – General damages $40,000 not set aside as inadequate.

Aust Dig Damages [61]

REPRESENTATION:

Counsel:
             Appellant:  D J C Kerr SC, C H Hobbs, A Browning
             First Respondent:  K E Read
             Second Respondent:  D J Barclay
             Other Respondents:  P L Jackson
Solicitors:
             Appellant:  Ogilvie Jennings
             First Respondent:  Hunt & Hunt
             Second Respondent:  Page Seager
             Other Respondents:  Jackson Tremayne & Fay

Judgment Number: [2012] TASFC 3
Number of paragraphs: 260

Serial No 3/2012
File No 20/2011

MOIRA KATHLEEN PARTRIDGE v HOBART CITY COUNCIL,
MICHAEL TREZISE t/as TREZISE LAWYERS, PETER BEHRAKIS,
VICTORIA ANN BEHRAKIS, DENNIS BEHRAKIS, MARIA BEHRAKIS

REASONS FOR JUDGMENT CRAWFORD CJ

BLOW J
WOOD J

27 July 2012

Orders of the Court

Appeal allowed.

Judgment dated and entered on 17 December 2010 varied by substituting the sum of $368,530 for the sum of $295,350.

Cross-appeals dismissed.

Serial No 3/2012
File No 20/2011

MOIRA KATHLEEN PARTRIDGE v HOBART CITY COUNCIL,
MICHAEL TREZISE t/as TREZISE LAWYERS, PETER BEHRAKIS,
VICTORIA ANN BEHRAKIS, DENNIS BEHRAKIS, MARIA BEHRAKIS

REASONS FOR JUDGMENT CRAWFORD CJ

BLOW J
WOOD J

27 July 2012

On 17 June 2002 the appellant, Moira Partridge, went to see her solicitor, Michael Trezise, the second respondent to this appeal, at his office in Salamanca Place in Hobart. His office was upstairs, above the premises of the Salamanca Fruit Market. As she was leaving that office, Mrs Partridge fell down some external steps that she was using to descend to ground level. The steps stood on land owned by the Hobart City Council. They were open to the elements. Mr Trezise's office was rented by two service companies from four landlords – Peter Behrakis, Victoria Ann Behrakis, Dennis Behrakis and Maria Behrakis ("the landlords"). Mrs Partridge sued the council, Mr Trezise, and the landlords for damages for negligence in respect of her injuries. Her action went to trial. She was successful against all defendants. Porter J held that they were all negligent; assessed damages in the sum of $409,019.09; reduced that figure by 20% because of contributory negligence on the part of Mrs Partridge; made further adjustments in relation to workers compensation payments and income tax; and ordered that judgment be entered for Mrs Partridge against all the defendants for $295,350: Partridge v Hobart City Council [2010] TASSC 62.

Mrs Partridge has appealed. She contends that the learned trial judge made various errors in the course of assessing her damages, and that the judgment sum should be increased. The council, Mr Trezise, and the landlords have all cross-appealed. Mr Trezise and the landlords contend that the learned trial judge erred in holding that they were negligent, and that Mrs Partridge's fall resulted from their negligence. They contend that her claims against them should have been dismissed. All of the respondents, including the council, contend that the learned trial judge made errors in assessing damages that resulted in the judgment sum being excessive, and that it should be reduced.

Most of the grounds of the appeal and cross-appeals involve challenges to findings of fact made by the learned trial judge. The principles relevant to such grounds of appeal have been explained by the High Court in a number of cases, including Jones v Hyde (1989) 63 ALJR 349 at 351 – 352, 85 ALR 23 at 27 – 28; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479, 482 – 483; Fox v Percy (2003) 214 CLR 118 at pars[23] – [31]. We do not think it necessary to restate the relevant principles.

The liability of the landlords

The landlords contend that the learned trial judge made errors in two respects – in finding that the appellant's fall was caused by her slipping on the steps, and in finding that it was reasonably foreseeable by the landlords that someone would be injured as a result of using the steps when they were wet.

The finding that the appellant slipped

The steps were tiled. The front edge of each step was rounded. As the steps were outdoors, they got wet whenever it rained. At the trial, the appellant contended that she slipped on one of the steps when it was wet, after rain. However the respondents contended that all the evidence was consistent with her stumbling and losing her footing, without slipping, and that the evidence failed to establish on the balance of probabilities that she had slipped at all.

The learned trial judge accepted evidence from a professional consulting engineer, Mr Dohrmann, that there was a high risk of slipping on the steps when they were wet, but a very low risk of slipping when they were dry. He found that the steps were wet at the time of the appellant's fall. He was satisfied on the balance of probabilities that she "slipped on the first step as she was descending the stairway, that step being wet with rainwater at the time": par[99] of his reasons. In making that finding he accepted evidence from the appellant's husband to the effect that she essentially "fell flat on her back and slid for a distance". A paralegal who worked in Mr Trezise's office, Christine Webster, was called as a witness for the appellant at the trial, and gave a somewhat different description of the appellant's movements as she fell.

Grounds 6 and 7 in the landlords' notice of cross-appeal relate to the issue as to whether the appellant slipped or not. Those grounds read as follows:

"6Having correctly identified (at [95]) the onus on the plaintiff to prove that she slipped as alleged by her, the Learned Trial Judge erred in finding that the probability that she slipped was greater than the possibility that she did not.
7The Learned Trial Judge erred in his treatment of the evidence of Ms Webster (at [98]) by rejecting her description of the manner in which the plaintiff fell:
(a) notwithstanding that Ms Webster's evidence about that went unchallenged and was not inherently inconsistent with other evidence that the plaintiff came to land on her back on the steps; and
(b) on the basis of an assumption, unsupported by any evidence or any effective challenge to Ms Webster's evidence, that she would have had difficulty appreciating the nature and extent of the plaintiff's forward movement from the position from which she viewed the fall."

The appellant's description of her fall, as it appears in the transcript of her evidence-in-chief, was as follows:

"… and I just went to proceed down the stairs, and my leading foot when it hit the first step just didn't seem to have any traction, any grip whatsoever, and I committed myself to descending at that point.
Well you'd better tell us what you mean by that…….Well I couldn't – I couldn't reverse. I have a memory of that foot going through the air in front of me, or both feet, and as I'm left-handed, left-hand dominant, I lashed out to grab at something to prevent a fall, but there was no rail there and I smacked the back of my hand against the brick wall that was there. I had a sensation of being airborne and of going past a window. When I landed there was a time when I couldn't feel anything at all. … I was on my back and my left leg was fairly straight but my right leg was a bit skewed."

A little later she said that she stepped off the landing at the top of the stairs, and that her foot connected with the first step below the landing. She said, "And to me it was like stepping on ice, there was just no traction at all and my foot just went straight off the step and up into the air."

The appellant's husband gave evidence that he was going down the stairs in front of her. He gave a description of her overtaking him as she fell, and landing in front of him. He said that the first parts of her body that he saw were her feet, and indicated by gestures that they came out horizontally. He said:

"… her head was at one end but the other end were her feet and she was level in between, although I couldn't see her head then."

He gave unchallenged evidence that the steps were wet.

The only other eye witness to give evidence of the fall was Christine Webster, the paralegal who worked in Mr Trezise's office. She said that she was sitting at the reception desk, in a position where she could see through the front door of the office and out to the stairs. Her description of the fall was as follows:

"Moira's gone out first, she's gone to the left of the stairs, which has got the sandstone wall on it, she's gone to go down the stairs, she's gone down on either one or two stairs, then I saw her go forwards and I thought, 'Shit, she's fallen', then she – she held out her right – no, her left hand – left hand towards the sandstone wall and then as she went forward and had her hand out then she started going backwards and then as she started going backwards she had her right hand and she had her right hand right behind her – right behind there as if she was just trying to break the fall from falling backwards, and then she went down and the position that I saw her go down on the stairs I could see that she'd – she'd crunched her back on the stairs. So she'd gone directly back onto – onto one of the stairs."

In his reasons, the learned trial judge took into account some evidence that the appellant had had a recent history of dizziness, unsteadiness on her feet, and nausea. He observed that the notes of her general practitioner, Dr Edwards, suggested a diagnosis of labyrinthitis on 9 May 2002, which was less than six weeks before the fall. His Honour observed that the notes did not suggest any treatment. He also took into account some evidence that the appellant suffered a blow to the head at the end of May 2002, and reports of associated giddiness, nausea, ongoing disorientation, and some clumsiness. The appellant was not cross-examined about any of those medical problems. In particular, she was not cross-examined as to what symptoms, if any, she had up to the day of her fall.

His Honour made a finding, based on Mr Dohrmann's evidence, that, when wet, the contribution of the tiled surface of the steps to the risk of slipping would have been high. He took into account evidence of the appellant that she was wearing "sandshoes with inbuilt tread and traction" that were part of her work uniform for safety purposes, but he observed that Mr Dohrmann's evidence did not exclude the possibility of slipping whilst wearing high grip rubber soled footwear. He took into account evidence from Mr Dohrmann that the rounded nose of the step was where most people tended to walk, and that that surface consisted of an incline where the minimum traction required naturally increases.

His Honour made adverse findings about the credibility of both the appellant and her husband. We will summarise those findings when considering ground 1 of the appeal.

As a result of his adverse credibility findings about the appellant and her husband, his Honour treated their evidence as potentially unreliable and scrutinised it carefully. He concluded that there was nothing inherently unlikely about the appellant's description of her accident. He considered that her husband's evidence confirmed that she was "in a roughly supine position above the steps after her fall had commenced, and before she landed".

His Honour discounted Miss Webster's evidence, saying this:

"I accept that she was doing her best to describe what she saw, but I have difficulty in reconciling the initial movements of the plaintiff's which she described, with the way in which the plaintiff ultimately made contact with the steps. It is to be remembered that Ms Webster was sitting behind the stairway and would have had difficulty appreciating the nature and extent of the forward movement. It is possible that the plaintiff fell forward and when reaching out to save herself, in some way tipped her body backwards, but I think the probabilities are otherwise. It may well be that the plaintiff first slipped slightly forward, or moved slightly forward as a natural reaction in order to regain her balance when her foot or feet went out from under her. In any event, I do not regard such a movement, if it occurred, as significant in the overall scheme of things."

After that review of the evidence, his Honour concluded, "… it is more likely than not that the plaintiff slipped on the first step as she was descending the stairway, that step being wet with rainwater at the time."

The landlords contend that his Honour attached too little weight to the evidence of Miss Webster and too much weight to the evidence of the appellant and her husband. Their counsel submitted to us that Miss Webster's evidence that she saw the appellant go forwards tended to indicate that the appellant lost her footing without slipping. He argued to the effect that Miss Webster would have had a better view of what happened than his Honour thought she had.

These proceedings involve a number of challenges to findings of the learned trial judge that were based, at least in part, on his assessments as to the credibility of witnesses. It is therefore worth repeating at this point what Gleeson CJ, Gummow and Kirby JJ said in Fox v Percy (above) at par[23]:

"On the one hand, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'. On the other, it must, of necessity, observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole." [Footnotes omitted.]

His Honour had the advantages of seeing and hearing the witnesses, and of having inspected the place where the fall occurred. He was in a better position than this Court to reach conclusions as to how well Miss Webster could see what was happening, and as to the credibility of the witnesses. His Honour conducted a thorough analysis of the evidence, and was appropriately cautious in his approach to the evidence of the appellant and her husband. There was uncontradicted evidence that the steps were wet at the time of the fall, and that they were slippery when they were wet. The appellant gave evidence that, when she stepped onto the first step, she experienced a sensation like stepping on ice, with no traction at all, whereupon her foot went straight off the step and up into the air. In our view it has not been demonstrated that his Honour made any error in reaching the conclusion that he was satisfied on the balance of probabilities that the appellant slipped, as distinct from falling without slipping.

In our view Miss Webster's description is not inconsistent with the appellant having slipped and fallen. There is no reason to infer that Miss Webster's reference to the appellant going forwards is a reference to her upper body being tilted forwards. If it was tilted forwards, that is not necessarily inconsistent with her slipping.

It follows that grounds 6 and 7 of the landlords' cross-appeal must fail.

Foreseeability by the landlords

The appellant pleaded that the landlords were negligent in failing to install a non-slip surface to the steps, failing to warn her that they were slippery when wet, failing to apply slip-resistant strips to each tread of the steps, failing to install a handrail to each side of the steps, failing to install a cover over the steps so as to keep them dry, and failing to make any enquiry as to the steps, or to monitor the safety of the steps. The learned trial judge found that the steps, when wet, posed a risk of injury that was reasonably foreseeable; found that the landlords ought to have been aware of that risk; and found that they had done nothing to alleviate the foreseeable risk. He found that Mr Trezise was negligent in failing to put up a simple sign, at the exit from his office or the top of the stairs, warning that the steps were slippery. He held that, by failing to do anything to alleviate the foreseeable risk, the landlords were in breach of their duty of care.

His Honour held that the landlords owed the appellant a duty of care, and that their duty was "that which would ordinarily attach to an occupier". That conclusion is not attacked by grounds 8 and 9. These grounds relate only to the content of the landlords' duty of care. They challenge the finding that they breached their duty of care only in relation to the foreseeability by them of a risk of injury. Grounds 8 and 9 of their notice of cross-appeal read as follows:

"8The Learned Trial Judge erred in finding (at [138]) that there was an objectively foreseeable risk of injury from the perspective of the reasonable person in the position of the third defendants [ie the landlords] when there was no evidence from which to conclude that any of the third defendants could have acquired sufficient relevant knowledge of the steps to justify attributing to them the capacity for that foresight. In particular, his Honour erred in finding that the third defendants had a high degree of familiarity with the steps having assumed responsibility for the cleaning of them when there was no evidence that cleaning was ever actually carried out by any of the third defendants and there was no other evidence from which any finding could otherwise be made as to the state of knowledge possessed by any of them as to the condition of the steps.
9The Learned Trial Judge erred in attributing to the third defendants the capacity for foresight of the risk of injury, looking forward from a time before the date of injury, when:
(a) His Honour found that the third defendants never became aware of the previous incidents and communications referred to at pars. [123]-[128].
(b) The only other basis expressed by his Honour (at [122]) for concluding that there was, before the date of injury, a foreseeable risk of injury was his Honour's own view of the steps on the first day of the trial (that is, seven years after the date of injury) and Mr Dohrmann's evidence, based on inspection of the steps eight months after the date of injury.

(c) It was Mr Dohrmann's evidence that the condition of the steps would change with the passing of time and continuous use."

The learned trial judge had evidence in the form of answers to interrogatories by one of the landlords, Peter Behrakis, that they engaged cleaners to clean the common areas of the premises; that it was part of the responsibility of the cleaners to keep the steps clean; and that the steps were cleaned twice a week. However there was no evidence that any of the landlords had ever seen the steps, or received any information about the condition of the steps or about anyone slipping on them.

In making his findings that the landlords had breached their duty of care, the learned trial judge said this, at par[138]:

"The third defendants had a high degree of familiarity with the steps having assumed responsibility for the cleaning of them twice a week. By failing to do anything to alleviate the foreseeable risk, they were in breach of their duty of care."

There was evidence that Christine Webster had slipped on the steps twice before the appellant's fall; that she had heard of others doing so; that she thought the stairs were dangerous; that she talked to Mr Trezise about the danger; and that she communicated with council officers about the danger by telephone. However, as ground 9(a) asserts, there was no evidence that the landlords ever became aware of any of those communications, nor of any slipping incidents. It is also correct that, as asserted in ground 8, there was no evidence that any of the cleaning was personally carried out by any of the landlords.

It was an admitted fact that the landlords owned the premises that included Mr Trezise's office. There was undisputed evidence that a right of footway appurtenant to their land, over the land occupied by the steps, was granted to them in December 1997. There was no evidence as to how long they had owned their property before then. And there was no evidence that any of the landlords had ever used the steps, or even looked at them.

Counsel for the landlords submitted that, that being the state of the evidence, there was no basis for concluding that the landlords knew or ought to have known that the steps presented any specific risk of injury to persons using them.

In our view the learned trial judge was wrong to say that the landlords "had a high degree of familiarity with the steps". There was no evidence that any one of them had any familiarity with the steps at all. But it by no means follows that the steps presented no foreseeable risk of injury.

The learned trial judge inspected the steps during the trial, about 7½ years after the appellant's fall. It was an agreed fact, as between all parties, that the steps had not changed since the day of the fall, save for the application of black adhesive strips located at the nose of each of the steps. His Honour was therefore entitled to proceed on the basis that there had been no significant erosion or other change to the steps since the appellant's fall, and since Mr Dohrmann's inspection. In par[97] of his reasons he referred to his inspection and commented, "From a lay perspective, I would regard them [the steps] as having the appearance of being likely to be slippery when wet, and calling for the exercise of caution."

The duty of care that the landlords owed to users of the steps required them either to undertake an inspection of the steps, or to get someone else to do so, for the purpose of identifying any risk of injury that reasonably required preventative action. We infer from the learned trial judge's comment as to his own inspection that any inspection would have suggested a likelihood that the steps would be slippery when wet, and a foreseeable risk that someone would slip on them when they were wet. Accordingly, we consider that the learned trial judge was right to conclude that it was reasonably foreseeable, on the part of the landlords, that someone might slip on the steps when they were wet. Grounds 8 and 9 therefore fail.

The liability of Mr Trezise

As we have said, the learned trial judge made a finding that there was a foreseeable risk of injury to persons slipping on the steps when they were wet, particularly when descending. He also made findings to the effect that Mr Trezise was aware of "at least a potential actual danger created by the steps being slippery"; that he was aware that the council was apparently going to do nothing about the risk; that there was no other way for people go to or from his office; that "a reasonable person in his position would have adopted the simple and expedient means of a warning sign directed to the discrete issue of the potential slipperiness of the steps"; that he did nothing to warn the appellant of the risk; and that his failure to warn amounted to a breach of duty. He held Mr Trezise to be negligent on that basis alone.

The grounds relating to liability in Mr Trezise's notice of cross-appeal assert that the learned trial judge erred in finding that Mr Trezise was in breach of his duty of care to the appellant (ground 1); that he erred in relation to causation in making findings that, if warned by a sign, the appellant would have been more alert to the situation, gone about the task of descent differently, and avoided a fall (grounds 2 and 3(b)); and that he made an error as to what the appellant said in her evidence on one point (ground 3(a)).

Breach of the duty of care?

The wording of ground 1 involves an acceptance that Mr Trezise owed the appellant a duty of care. It reads as follows:

"The Learned Trial Judge erred in finding at [137] that the second cross-appellant was in breach of his duty of care to the Plaintiff by failing to take reasonable steps to warn the plaintiff of the risk of the steps being slippery when wet."

Mr Trezise contends that all steps may be slippery, more so when they are wet, and that a warning sign was not necessary to put people on notice of those facts.

In Wilkinson v Law Courts Ltd [2001] NSWCA 196, Heydon JA (as he then was) said at par[32], in a passage quoted by the learned trial judge:

"Stairs are inherently, but obviously, dangerous. Many measures might have been taken to make the stairs as safe as human skill could possibly make them; but the duty is only to take care which is reasonable under the circumstances. Among the essential circumstances is the following fact: 'persons using steps may misjudge their footing and slip or trip but this is an everyday risk which members of the public avoid by taking care for their own safety': Stannus v Graham [1994] NSWCA 46 per Handley JA."

We do not disagree with any of those propositions. But in our view the evidence established that the steps on which the appellant fell were more dangerous than most. As we have said, Mr Dohrmann gave evidence to the effect that there was a high risk of a person slipping on the steps when they were wet, but a very low risk when they were dry. Christine Webster gave evidence that she had worked for Mr Trezise for about 23 years; that they moved to the office in Salamanca Place in mid-1999, which was some three years before the appellant's fall; that, prior to that fall, she had had a discussion with Mr Trezise and told him she believed the stairs were dangerous; that she was concerned that a client was going to get injured on the stairs and wanted to do something; and that she made a telephone call to the council about the stairs after that discussion. She had a perception of the stairs being dangerous because of comments from other staff members and two occasions when she had slipped on the stairs herself. In an answer to an interrogatory tendered on the trial, Mr Trezise said that he was told some time in late 2000 by Christine Webster that the steps were slippery and potentially dangerous. All of that evidence was uncontroversial.

No question arises on this appeal as to the existence of Mr Trezise's duty to take reasonable care for the safety of visitors to his office. The question is whether, in all the circumstances, the risk of a visitor falling on the stairs was so great that a reasonable person in his position would have acted to obviate that risk by putting up an appropriate sign. In our view, having regard to the evidence referred to above, that is what a reasonable man in Mr Trezise's position would have done. The learned trial judge was right to hold that he had breached his duty of care.

In relation to this ground, counsel for Mr Trezise advanced a subsidiary argument relating to a comment made by the learned trial judge when he was discussing what would be involved in putting up an appropriate sign. At par[134] of the judgment, his Honour said:

"Because it would not have involved anything of any permanence or of structural significance, I do not imagine that the second defendant would have been prevented from erecting a suitable sign at the top of the stairway on the left hand side which would have been readily visible to those about to descend, warning that the steps were slippery when wet. Alternatively a similar sign in a prominent place at the exit to his office would have been almost, if not completely, as effective as a sign at the top of the stairway, given the proximity of the door of his office to the landing and the first step."

Counsel drew our attention to his Honour's use of the words "when wet" at the end of first sentence in this passage. The evidence as to the conversation between Miss Webster and Mr Trezise (ie her oral evidence and the answer to the interrogatory) revealed only that she told him that the steps were slippery, not that they were slippery when wet. Counsel submitted that there was no evidence that Mr Trezise knew or ought to have known of a particular risk when the steps were wet, and that his Honour erred in holding that he should have posted a warning sign warning of the specific danger when the steps were wet.

When his Honour came to make his finding of a breach of duty, he said nothing about wetness. What he said, at par[137], was this:

"Given that the steps were used for the purposes of enabling the second defendant to conduct his business, and given that he was aware of at least a potential actual danger created by the steps being slippery, I find that he was in breach of his duty by failing to take reasonable steps to warn the plaintiff of the risk. In my view, a reasonable person in his position would have adopted the simple and expedient means of a warning sign directed to the discrete issue of the potential slipperiness of the steps."

However, when his Honour subsequently made a finding as to a causative link between Mr Trezise's breach of duty and the appellant's fall, he did mention wetness. At par[144], he said this:

"If she had known that there was a risk that the steps were slippery when wet, then she would have been more alert to the situation, and adjusted the way in which she negotiated the steps accordingly."

The absence of evidence that anyone mentioned wetness when telling Mr Trezise that the steps were slippery will need to be addressed in relation to the cross-appeal grounds concerning causation. However, so far as the ground concerning Mr Trezise's breach of duty is concerned, the absence of such evidence is insignificant. Mr Trezise may or may not have known that the slipperiness of the steps was associated with wetness. Whether he knew that or not, we think the learned trial judge was correct to hold that he breached his duty of care by failing to put up a simple warning sign. That was a cheap, convenient and easy step that he could have taken to obviate the risk of injury. Ground 1 of Mr Trezise's cross-appeal must fail.

Causation

The learned trial judge's conclusions as to the causative link between the absence of a warning sign and the appellant's fall, in par[144] of his reasons, were as follows:

"There is evidence from which I infer that the plaintiff had been to the second defendant's office on several prior occasions. I am satisfied that had a warning sign been in place on the day of the accident, she would have noticed it by then. I have had the benefit of observing the plaintiff and listening to her give evidence for a considerable period of time. I have access to documents created by her and the notes of extensive discussions with Mr Hamer [a clinical and counselling psychologist who saw the appellant frequently from April 2001 until April 2003], which bear on her personality and attention to detail. I also have regard to the way in which she described her ascent of the steps and as to whether she used the handrail on the left side when ascending. From all of that I infer that if she had been made aware of the potential danger of the steps, she would have gone about the task of descent on this occasion differently and in a manner which would have avoided the fall. I am conscious that the plaintiff said that the steps did not look wet to her as she approached to go up, but she was aware that it had been raining. If she had known that there was a risk that the steps were slippery when wet, then she would have been more alert to the situation, and adjusted the way in which she negotiated the steps accordingly."

Grounds 2 and 3 of Mr Trezise's notice of cross-appeal relate to this paragraph. They read as follows:

"2The Learned Trial Judge erred in finding at [144] that, had the second cross-appellant warned the Plaintiff of the potential danger of the steps, she would have gone about the task of descent differently and in a manner which would have avoided the fall.

3    The Learned Trial Judge erred in finding at [144] that,
a)   The Plaintiff said the steps did not look wet as she approached to go up, when in fact the Plaintiff said that the steps did not look wet as she approached to go down; and
b)   The Plaintiff would have been more alert to the situation if she had known there was a risk that the steps were slippery when wet and would have adjusted the way in which she negotiated the steps when she did not believe that the steps were wet."

Most of the submissions of counsel for Mr Trezise in relation to these grounds related solely to some evidence of the appellant about the steps not appearing to be wet. When giving evidence about her departure from Mr Trezise's office, she said, "As I approached the stairway, the stairs didn't to me look wet."

It seems clear that the learned trial judge made a mistake, though in our view an inconsequential one, when he said, "I am conscious that the plaintiff said that the steps did not look wet to her as she approached to go up …". When she gave evidence that the steps did not look wet to her, she was speaking about the time when she was approaching them to go down, not up. Her only evidence as to the state of the steps when she went up them was during her cross-examination. She said that she did not recall taking particular care when going up the steps, that she did not recall them being wet when she was going up them, and that she did not recall having any difficulty going up them. However the learned trial judge's findings as to what the appellant would have done if there had been a warning sign did not depend on how she thought the steps looked at any particular time.

Counsel for Mr Trezise argued that, if there had been a sign saying that the steps were slippery when wet, the appellant would not have been more alert to a risk of slipping, and would not have gone about the task of descending the steps in a different way, because they did not appear to her to be wet. However we see no reason why we should make a different finding on this point from that of the learned trial judge, particularly in view of the opportunity that he had, and referred to in his reasons, to observe the appellant and listen to her give her evidence over a considerable period.

Mr Trezise had been using the steps in question to travel to and from his office for about three years before the day of the fall. There was no other way to or from the office. If he had put up a sign, it is more probable than not that he would have been aware, at least after making appropriate enquiries of the staff of his office, that the slipperiness of the stairs was associated with wetness, and that the sign would have warned that they were slippery when wet. Having regard to the learned trial judge's assessment of the appellant, we think it more probable than not that, even if such a sign had warned only that the steps were slippery, she would have taken more care in descending the steps on the day in question, knowing that it had rained. We are satisfied on the balance of probabilities that, if the appellant had been warned that there was a risk that the steps were slippery, then she would have been more alert to the situation, adjusted the way in which she negotiated the steps, and not fallen.

Grounds 2 and 3 of Mr Trezise's cross-appeal must fail.

Damages – introduction

The appellant claimed damages on the basis that her principal injuries resulting from her fall were to her low back, right knee, and left hand. It was claimed that, as a result, she developed an incapacitating chronic pain condition. At the time of her fall she was working full-time for a family company, managing a kindergarten business named Tingletree. She took time off work after her fall, returned to work part-time, and never returned to full-time work. The business was sold in about September 2003. The appellant has not done any paid work since then. She claimed damages on the basis that, as a result of her fall, she had been unable to do any more work than she in fact did prior to the sale of the business, and that her earning capacity had been totally destroyed. She and her husband sold their home in Hobart in late November 2003, and went to live in a waterfront residence at Booker Bay in New South Wales. They bought a yacht in April 2004. Their lease of the Booker Bay property expired in October 2004. From then until the trial they lived on their yacht at a marina at Yamba in northern New South Wales. The appellant claimed that the sale of the business and of the Hobart residence had been necessitated by her injuries. She claimed damages on the basis that her injuries had had a significant impact on her participation in sporting and leisure activities, and on her ability to enjoy her married life, and that they had resulted in ongoing needs for medical treatment, medication, personal and domestic assistance, and various forms of expenditure.

The respondents contended at trial that there was very little wrong with the appellant; that, at most, her fall resulted in a temporary exacerbation of pre-existing medical complaints; and that she was exaggerating her symptoms for gain.

As we have said, the learned trial judge made adverse findings as to the appellant's credibility. He reached conclusions to the effect that she was incapacitated by her injuries, but not the extent that she claimed. He assessed damages as follows:

Loss of earning capacity

$281,350.00

Loss of superannuation entitlements

$23,100.00

Domestic and personal care

$1,500.00

Medical, physiotherapy and associated expenses

$23,226.25

Medication costs

$7,525.00

TENS unit and miscellaneous items

$3,293.00

Pain management and gymnasium fees

$21,550.00

Equipment and aids

$1,200.00

Travelling expenses

$1,510.00

Medicare reimbursement

$1,000.00

Tax on weekly payments of compensation

$3,764.84

Pain and suffering; loss of amenities

$40,000.00

$409,019.09

His Honour explained the adjustments that resulted in the judgment sum being $295,350 as follows:

"Deducting 20 per cent from the total for contributory negligence gives $327,215.27. To be further deducted is the total amount of workers compensation payments of $32,611.84, which results in a figure of $294,603.43. In order to comply with the principle established by Fox v Wood [(1981) 148 CLR 438], 20 per cent of the tax paid of $3,764.84 which is $752.97, should be added. That gives a figure of $295,356.40. Assessment is a matter of overall judgment aided by calculations. There will be judgment for the plaintiff against the defendants for $295,350.00."

Grounds 1, 8 and 9 of the appellant's grounds of appeal assert specific errors by the learned trial judge in relation to the assessment of general damages for pain and suffering and loss of amenities, as does the final ground in each notice of cross-appeal. Ground 7 asserts that the award of $40,000 under this head was manifestly inadequate. It is appropriate first to consider the relevant grounds that assert specific errors; then to consider the adequacy or otherwise of the award of $40,000; and then to consider the grounds relating to economic loss.

Chronic pain (ground 1)

The appellant's ground 1 reads as follows:

"His Honour erred by substituting His Honour's own judgment for the opinion of medical experts that the Appellant suffered a chronic pain condition."

If this ground were to succeed, it would be necessary to reconsider not only the assessment of damages for pain and suffering and loss of amenities, but also the assessments relating to many other heads of damage.

The opinion evidence in question was of a consultant physician and pain management specialist, Dr David Gorman, a psychiatrist, Dr Philip Reid, and a consultant in occupational medicine, Dr John Davis. They were all engaged by the appellant's solicitors in 2008 or 2009 to provide medico-legal reports.

Dr Gorman interviewed the appellant on 26 May 2009 and reviewed a number of letters and proofs of evidence of other doctors and therapists, and of a psychologist, along with copies of records of the appellant's general practitioner from 1995 to 2003. Dr Gorman expressed his opinion that the appellant was suffering a condition called "chronic pain", which he explained was "persistent pain" by its very definition, and permanent.

It is clear that Dr Gorman accepted, and relied on for his diagnosis, statements made by the appellant concerning the pain she was suffering. In order of severity, his brief description of them was:

1low back pain radiating to both buttocks, but greater to the right than to the left, with symptoms to her thigh and on occasions her right toes went "numb";
2right knee pain, and she added that the knee could give way on occasions causing falls; and
3left hand pain. She said that the hand could swell and "bruise". It was only a problem when she used it, for example when writing for long periods.

Understandably, all of the medical specialists looked for objective signs for the cause of the pain the appellant claimed she was suffering. Dr Gorman emphasised that chronic pain may exist without identifiable pathology but said it existed in this case. Concerning the pain emanating in the back, he referred to evidence of widespread annular fissuring of the L4/5 disc and a ruptured disc at the L5/S1 level. He also mentioned radiological evidence of a minor effusion in the right knee joint on 3 September 2003.

Dr Reid interviewed the appellant for about an hour before providing a report. He also had regard to a number of reports of specialists. Similarly to Dr Gorman, he referred to a compression injury to the lumbar sacral spine in the fall with ongoing pain due to an L4/5 disc prolapse demonstrated on CT scan, and a subsequent discogram that had revealed a ruptured disc at L5/S1. Dr Reid was of the impression that the appellant suffered from chronic pain syndrome caused by physical injuries and not by a non-organic disorder.

Dr Davis assessed the appellant for her solicitors on 12 June 2008. In his report he noted her complaints of pain and disability. Like Drs Gorman and Reid, he accepted her complaints as truthful. He referred to the radiological evidence of injuries in the spine at the L4/5 and L5/S1 levels. He also referred to palpable crepitus in the right knee, but with no swelling or effusion. As with the other doctors, he noticed no objective signs of injury to the left hand at the time of examination. In a report dated 20 November 2009, Dr Davis stated that he concurred with Dr Reid's opinion that the appellant was suffering from a chronic pain syndrome and he agreed with Dr Gorman that she was not suffering significant non-organic symptoms.

In a report dated 7 August 2009, Dr Davis recorded that the appellant had reported complaints that included continuing constant pain in the lower back and right knee; pain and paraesthesia extending through both legs to the toes; discomfort when sitting or standing in one place, as well as with travelling for prolonged distances, bending and heavy lifting; aggravation of her right knee pain by using steps and when walking down inclines or on uneven ground; exacerbation of symptoms with squatting and an inability to kneel on her right knee; a description of her left hand becoming motley, swollen and tender after excessive use; and restriction in undertaking normal domestic chores.

In their reports and evidence, all of those specialists partly based their opinions concerning the existence of a chronic pain syndrome on the objective evidence of injury to which we referred. There was also an objective sign recorded on 5 August 2009 by an orthopaedic surgeon, Dr Drew Dixon, as mild erector spinae muscle spasm. He explained it to be an involuntary muscle contraction and an objective physical sign of injury.

It is clear that the appellant's medical specialists regarded her complaints as genuine and did not consider she was exaggerating or malingering. Drs Gorman and Davis maintained their opinions after they had viewed the video surveillance material in evidence.

At the trial, the respondents conducted their defences upon the basis that the appellant and her husband were not credible witnesses and that the appellant's complaints to the medical witnesses of ongoing pain and disability, and her evidence of them, should not be accepted. They were issues squarely raised for the determination of the learned trial judge.

After a long and detailed consideration of the evidence of the appellant, her husband, independent and other witnesses, including the appellant's medical experts, as well as the surveillance videos and medical and hospital records, the learned trial judge expressed his conclusion as to the appellant's chronic pain condition, to which the ground of appeal is directed, at par[274]:

"In relation to the proposition that the plaintiff suffers from chronic pain condition, I am satisfied that there are some elements of that condition present, but not that she suffers from an entrenched condition as such, to the degree suggested. I am conscious that this involves not accepting, at least to the full extent, the expert opinions. However, to a large extent, those opinions were based on what the plaintiff said, and I have had the benefit of a great deal of evidence which bears on the plaintiff's state. I accept that the plaintiff's lack of fitness and condition is playing a role in her restriction of movements to the extent that they are, and that depression affects her general wellbeing. However, she was apparently suffering depression before the accident; at least, she was regularly taking anti-depressant and anxiolytic medications. Sensitization may also be an explanation for the level of pain which does exist, but overall that level of pain and the level of disability of which I am satisfied is not such as to warrant the diagnosis of this entrenched chronic pain state."

The respondents did not call any medical witnesses at the trial. Counsel for the appellant submitted to this Court that, as there was no dispute between experts in relation to the chronic pain condition, it was an error of law for the learned trial judge not to have accepted the evidence of the appellant's medical experts. He also submitted that her medical condition was a "matter for expertise not possessed by the ordinary run of mankind" (R v Lawless [1974] VR 398 at 422 – 423) and for that reason the trial judge erred in law by not accepting those opinions. While such arguments might be valid for some cases, this was not one of them. To a great extent, the level of pain and disability suffered by the appellant was a question of fact for the determination of the learned trial judge. Unchallenged objective signs found by experts had to be taken into account by his Honour, and they were, but they did not provide the whole answer.

The appellant's counsel pointed to the failure of counsel for the respondents at the trial to put to the appellant's medical witnesses, and the non-medical witnesses who gave evidence of her activities and movements they had observed, that she was feigning her symptoms. Counsel's submission appeared to be that because of that failure the evidence of those witnesses had to be accepted. The submission invoked the rule in Browne v Dunn (1893) 6 R 67 (HL). However, as counsel for the first respondent correctly pointed out, it was an issue plainly raised at the trial, and it was for the learned trial judge to determine whether the appellant had been and was feigning her complaints, and not for the witnesses.

So it was submitted that, for example, the evidence of medical witnesses concerning objective signs of injuries that could have caused the appellant to suffer pain had to be accepted by the learned trial judge if that evidence was left unchallenged. But his Honour was not obliged to accept what the appellant said about her suffering, to the Court in evidence, or to the medical witnesses when they examined her.

Counsel for the appellant also pointed to the failure of the respondents to call medical witnesses who contravened the opinions of the appellant's medical witnesses. Counsel relied on the rule in Jones v Dunkel (1959) 101 CLR 298 for the proposition that an unexplained failure by a party to call witnesses may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted the defence case. However, the application of the rule to the circumstances of this case could only lead to a conclusion that, if the appellant's statements about her pain and suffering were truthful, the opinions of the medical witnesses had to be accepted.

The learned trial judge was faced with a considerable amount of evidence from many witnesses that was relevant to a determination of the appellant's disabilities, pain and suffering. It was received during a trial that extended over many days. The questions concerning those matters, and her medical condition generally, had to be answered from a consideration of not only the evidence of the appellant's expert witnesses, but all the evidence relevant to them. Although the medical witnesses formed their opinions using objective evidence of physical injuries, their opinions were also based on what the appellant told them, and on what she told others, whose reports and records they took into account. It was open to the learned trial judge to give the unchallenged expert evidence as much or as little weight as he thought fit, having regard to his assessment of the extent of the appellant's credibility. He was certainly not obliged simply to accept the opinions of her expert witnesses. Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598 at par[60].

For this case, the role of the tribunal of fact in evaluating expert medical evidence was made clear by the High Court in Ramsay v Watson (1961) 108 CLR 642 at 645, when referring to a jury:

"A qualified medical practitioner may, as an expert, express his opinion as to the nature and cause, or probable cause, of an ailment. But it is for the jury to weigh and determine the probabilities. In doing so they may be assisted by the medical evidence. But they are not simply to transfer their task to the witnesses."

Central to the relevant findings of the learned trial judge were those that were adverse to the credit of the appellant and her husband. No ground of appeal attacks them.

After an extensive review of evidence, his Honour concluded that the appellant was not a witness upon whose evidence he could rely. He found that she had frequently engaged in obfuscation, prevarication and evasion when confronted with matters which called for explanation. At best, it was clear she was heavily prone to exaggeration and the use of hyperbole to a significant extent, some of it wilful. At worst, his Honour found that in certain key aspects, she had been untruthful in her evidence, and had sought to mislead. As a result, his Honour was not prepared to act on her evidence alone as to any matter.

Concerning Mr Partridge, the appellant's husband, who to a large extent corroborated her evidence as to the level of her disabilities, the learned trial judge had doubts about the reliability of his evidence. His Honour concluded that where his evidence accorded with that of the appellant, it should be treated with caution. His Honour noted, however, that some aspects of his evidence revealed a greater degree of mobility than the appellant asserted.

We will give a few examples of the appellant's evidence as to her incapacity and level of pain which the learned trial judge did not accept and which assisted to bring about the adverse credit findings. She asserted that because of pain, travelling in a vehicle was very difficult and that it was difficult for her to drive "bar very short distances", and that she had stopped driving herself because of her medication and the requirement to turn and use her legs. She told an occupational therapist, Jane Berger, that she was able to remain seated as a passenger for about 30 to 40 minutes. She asserted that she had not been sailing at all on the yacht on which she had lived since 2004. She also asserted that she could not access a dinghy.

The learned trial judge considered a substantial amount of evidence, other than her own, that was relevant to those assertions. There is no need to detail it. It caused his Honour to find that on a number of occasions the appellant had travelled considerable distances in a motor vehicle, some of which exceeded 1,000 kilometres. For example, she and her husband travelled in a car from northern New South Wales to Hobart and return in April 2005. There was evidence that she had stated in cards and letters that she had sailed extensively. There was also evidence that she had accessed and used a dinghy on a number of occasions. The learned trial judge concluded that "the totality of the evidence showed a level of activity quite at odds with the picture the plaintiff wanted this Court to accept".

The learned trial judge also had regard to surveillance videos of the appellant's activities on 12 June 2006, 8 and 9 November 2006, and 14 September 2009. His Honour found that her movements on them revealed greater mobility and ease of movement than she claimed. His Honour took into account that the surveillance only related to a few days in the time that had elapsed since the accident, that a person suffering from the effects of an injury has some days which are better than others, and that mobility and effort may be assisted by the use of analgesics. But a consideration of it with the evidence of extended driving trips, and recreational dinghy and general social activity, led to a conclusion by his Honour that her activity depicted in the surveillance evidence, to the extent that it revealed greater mobility and ease of movement than that claimed, was more common and less likely to be the product of a "good day" or the use of effort and analgesics. All of those findings were open on the evidence. We add that some of the appellant's movements, such as squatting and bending, suggested greater mobility than was apparent to some of the medical witnesses.

We observe that the learned trial judge did not reject all of the appellant's claims of injuries, incapacity and pain resulting from the negligence of the respondents. We will summarise some of the findings that were made.

Concerning the appellant's back, it was found that she suffered an injury consistent with damage to discs at the L4/5 and L5/S1 levels which resulted in pain and discomfort. She had continuing symptoms of pain and limitation of movement which varied in degree of severity. The learned trial judge was not satisfied that they were as severe as she claimed. His Honour was not satisfied that they were sufficient overall to prevent her from the range of activities as she claimed, although it was accepted that there might be times when she was somewhat limited in what she could do, and there were things she was restricted in doing, or should avoid. Specifically, the learned trial judge was not satisfied that her day-to-day domestic and social activities were as restricted as she claimed, and he rejected her evidence as to the extent of restrictions on her ability to travel and to socialise generally. His Honour rejected evidence as to the extent of her immobility; such as difficulties she claimed she had in making her way from her yacht to a marina amenities block, and her general inability to care for herself.

The learned trial judge found that the appellant suffered an injury to her right lower leg and knee in the fall, and that she had suffered, and might continue to suffer, symptoms. There was a minor effusion of the knee, at least in September 2003, and degenerative change precipitated by trauma, and some crepitus and laxity in the knee had been found by one of the medical witnesses. The appellant continued to suffer some troubling symptoms from time to time, but overall the level of pain and disability was of no great significance. The injury had caused the knee to give way occasionally and the appellant fell as a result. It was found that attaining a reasonable level of activity and fitness should alleviate the problem.

The appellant claimed to have injured her left hand, which is her dominant hand. She said that if she did not use it very much, she experienced no symptoms whatsoever, but if she over-used it, she suffered swelling and tenderness. The learned trial judge did not accept her evidence about those matters, and concluded that the symptoms she had suffered were no greater than a nuisance value. His Honour found no significant disability which impacted on her ability to write or use a keyboard, other than on odd occasions and then only to a limited extent.

All of those conclusions were reached by the learned trial judge after an extensive discussion and consideration of the evidence. We are satisfied that they were reasonably open and correctly made.

For the reasons we have given, we conclude that the learned trial judge did not err by substituting his own judgment for the opinion of some of the medical witnesses that the appellant suffered a chronic pain condition. Ground 1 fails.

Evidence of independent witnesses (ground 8)

The appellant's ground 8 reads as follows:

"His Honour erred in determining the amount of general damages His Honour awarded by failing to give adequate weight to the evidence of witnesses who were not cross-examined as to the Appellant's deterioration in self-esteem, personality changes, loss of enjoyment of life and loss of capacity to undertake valued recreational activities after the injuries."

The ground raises the question whether the learned trial judge erred by failing to give adequate weight to the evidence to which reference is made.

At the outset of our consideration, it should be stated that the learned trial judge expressly referred in his reasons to all of the evidence to which the appellant's counsel referred this Court in support of this ground. In the course of doing so, his Honour made note of the witnesses who were not cross-examined about particular matters. No suggestion was made by the appellant's counsel that the learned trial judge did not make sufficient reference in his reasons to the evidence in question.

The witnesses whose evidence was raised by the appellant's counsel when arguing in support of the ground were John McInerney, William Kesby, Sonia O'Brien, Joyce Shulver, Judith Hunter and Frank Bansel. Reference was also made by counsel to the evidence of the appellant's mother, Kathleen Beven.

It is unnecessary to relate their evidence. It can be found in the reasons. It suggested that prior to the accident the appellant led a fairly active and gregarious life, but after it she had not been observed undertaking vigorous activities and, to the contrary, she had been observed having a limited mobility, a limited ability to carry weights, and a lowering of her self-esteem. However, it would not have been appropriate for the learned trial judge to determine the extent of the appellant's incapacities and suffering from a consideration of the evidence of those witnesses only. The learned trial judge was obliged to consider a considerable body of other evidence, and his Honour did so. It was discussed at length in the reasons. In the course of that discussion, his Honour referred in particular to most of the witnesses to whom we have referred and noted that their evidence tended to support the appellant's claimed level of disability.

It is beyond question that the learned trial judge gave weight to the evidence of those witnesses. It was considered alongside the other evidence, such as the evidence of the medical witnesses, evidence of long distance driving and other activities of the appellant, including those revealed by surveillance evidence.

In his conclusions, the learned trial judge referred to the difficulty with which he was faced when determining the proper factual basis on which to proceed. His Honour said it was difficult to ignore the objective clinical signs and the independent evidence which supported a level of impairment and disability of some significance. On the other hand, his Honour referred to material that cogently suggested that the level of impairment and disability was not as great as the appellant asserted.

The learned trial judge then made separate findings concerning the appellant's back, right knee and left hand, after saying that he could only make them in general terms. We referred to the findings earlier. It is undoubted that the learned trial judge gave weight to the evidence in question. The appellant has failed to establish that it was inadequate weight. The ground fails.

We observe that when arguing the ground, counsel for the appellant did not take the Court to the whole of the evidence and in particular, to the material that suggested, and to the learned trial judge suggested cogently, that the level of the appellant's disability and impairment was not as great as she asserted. In view of that, it is pertinent to refer again to the passage in the judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy concerning the duties of an appellate court, which we quoted in par[19] of these reasons.

Sexual matters (ground 9)

The appellant's ground 9 reads as follows:

"His Honour erred in determining the amount for general damages His Honour awarded by not taking into account, or not giving adequate weight to evidence that the Appellant's sexual function and sexual relationship with her husband had been seriously adversely affected and that she had been deterred from seeking and had not sought IVF treatment."

There was almost no evidence about sexual function. In the course of being asked in her evidence-in-chief about the issue of IVF being discussed as a result of ectopic pregnancies she had experienced, her counsel ask whether she wished to say something and the appellant said: "I did actually want to say it occurred to me too that another area physically where my life has altered forever is in terms of sexual function and relationship with my husband as well." It was not what her counsel had been asking about and he did not seek amplification. The subject was not raised again. The learned trial judge referred to that passage of evidence in his reasons but made no findings concerning the matter.

Counsel for the appellant criticised the learned trial judge for not expressly referring to loss of sexual function in his assessment of damages. However, the vague reference to the matter by the appellant in her evidence-in-chief, with no question from her own counsel to explain what she meant, did not require consideration of it when assessing damages. In simple terms, her remark was left completely unexplained. We add that there was no medical evidence supporting it, nor did her counsel refer the Court to any from her husband.

Considering the possibility of IVF treatment, our understanding is that the only evidence about it was a brief passage in the evidence of the appellant. She had mentioned that prior to the accident she had a number of ectopic pregnancies and the issue of IVF was discussed. Asked whether that was ever pursued, she said it had not been because of medical advice she received. However, there was no medical evidence to support a claim that her injuries in the accident were the reason.

In written submissions, counsel for the appellant submitted that the award of general damages "should have included significant compensation for the thwarting of the opportunity to have a child". In view of the absence of evidence about the matter, in particular medical verification, there was no merit at all in the submission.

However, in oral submissions that position was not maintained. Instead, counsel argued that there was an inconsistency in the treatment of the subject of IVF in the reasons of the learned trial judge, something that we do not accept.

Counsel for the appellant pointed to how the learned trial judge dealt with the subject when assessing damages for loss of earning capacity in the period between the accident and the trial. When doing so, his Honour made an estimate of the income the appellant would have earned if she had not been injured. The learned judge considered what discount he should make for the possibility that she might have successfully had a child following IVF procedures. There was nothing inconsistent in that. It was an appropriate course to take because of the appellant's evidence that she wished to have a child, and that such a possibility had been discussed between her and her medical advisors prior to the accident.

The ground must fail.

Manufactured or exaggerated symptoms (cross-appeals)

Each notice of cross-appeal contains a ground in the following terms (ground 5 of the council's notice; ground 8 of Mr Trezise's notice; ground 5 of the landlords' notice):

"The learned trial judge erred in failing to find that the plaintiff consciously manufactured, or at least consciously exaggerated her symptoms for the purposes of gain or other reason unconnected with the tort [261ff]."

As mentioned earlier, the respondents conducted their defences upon the bases that the appellant and her husband were not credible witnesses, and that the appellant's evidence of her ongoing pain and disability should not be accepted. The respondents argued that there was little, if anything, wrong with her, and that she was consciously manufacturing, or at least consciously exaggerating, her symptoms for the purposes of gain.

In his reasons, the learned trial judge noted all of that. As stated by us earlier, his Honour concluded that the appellant was not a witness upon whose evidence he could rely. He found that she had frequently engaged in obfuscation, prevarication and evasion when confronted with matters which called for explanation. At best, the learned trial judge found it clear that she was heavily prone to exaggeration and the use of hyperbole to a significant extent, some of it wilful. At worst, his Honour found that in certain key respects, she had been untruthful in her evidence, and had sought to mislead.

By the ground of appeal, the respondents complain that the learned trial judge erred by failing to go further, and specifically find that the appellant consciously manufactured, or at least consciously exaggerated, her symptoms for the purposes of gain or other reasons unconnected with the tort. We do not accept that the learned trial judge did err in that way, for reasons we will explain.

A primary function of the learned trial judge, so far as damages were concerned, was to determine what pain and disability the appellant had suffered, and would continue to suffer, as a consequence of her fall. His Honour was required to make whatever findings he could about those matters, in the context of an onus that rested on the appellant to prove facts on the balance of probabilities. However, the learned trial judge was not required to make positive findings concerning the pain she did not have and the disability she was not suffering.

As the learned trial judge made clear, there was objective evidence of injuries which could account for the appellant's claims of pain and incapacity. There was also a body of independent evidence which supported her claims. It is clear that the learned trial judge found that at the very least, she had fabricated or exaggerated many of her symptoms. It was not required of the learned trial judge to determine with precision which claimed symptom was a fabrication, which was an exaggeration, and which did not exist in any event, nor did his Honour attempt to do so. The learned trial judge concluded that all he could do was make "findings in general terms" concerning what symptoms had been proved upon a consideration of all the evidence. The findings concerning pain and disability were necessarily general because of the state of the evidence.

The argument of the respondents seems to be that if the learned trial judge had made a positive finding that the appellant consciously manufactured, or at least consciously exaggerated, her symptoms, it would have led to a conclusion that all of her claims were infected and none, or virtually none of them, could be accepted. That does not follow. All of the evidence in the case had to be considered by the learned judge and not only the appellant's evidence and her credibility.

There was no error in what his Honour did. The ground fails.

Adequacy of award for general damages (ground 7)

Ground 7 of the appellant's notice of appeal asserts that the learned trial judge erred by awarding her "a manifestly inadequate amount for general damages". This ground relates to the award of $40,000 for pain and suffering and loss of amenities.

This Court is required to determine the adequacy or otherwise of that award by reference to the findings of the learned trial judge that relate to the appellant's pain, suffering and loss of amenities. That is because all the grounds of appeal and cross-appeal relating to that award have failed, and because there is no reason for this Court to make its own findings, in substitution for those of the learned trial judge, in relation to any issue relevant to this ground.

The learned trial judge did not make very detailed findings as to the pain, suffering or incapacity of the appellant. We have summarised his principal findings as to her back, knee and hand injuries in pars[83] – [85] above. It is evident that he did not make more specific findings because, having rejected much of her evidence, he was simply not able to be more specific.

Some of his findings in relation to claims for special damages and future expenses are relevant to this ground. At par[308] of his reasons, he concluded that it was reasonable to make some allowance for domestic care provided by a cleaner for three hours per week, but only for 12 months. At pars[310] and [314], he accepted that certain medical, counselling and pharmaceutical expenses were reasonable. At par[312] he accepted that the appellant's knee might deteriorate to such an extent that an arthroscopy would reasonably be needed, and that her back condition might deteriorate to such an extent that lumbar fusion surgery might be needed, but not that facet block procedures might be needed. The sums awarded in respect of a possible arthroscopy and a possible lumbar fusion procedure indicate that he thought the chance that each of those procedures would be needed was less than 50%. In par[313] he concluded that some allowance should be made for future physiotherapy costs following an arthroscopic debridement of the knee. In par[317] he concluded that it was reasonable for the appellant to be provided with a TENS machine and various less expensive items of equipment. At pars[318] and [319] he concluded that it was reasonable to make allowance for gymnasium expenses and related travelling expenses. The award in respect of gymnasium expenses has been challenged in each cross-appeal, but only on the basis that the amount awarded was excessive.

His Honour dealt with this head of damage in par[335] of his reasons, which reads as follows:

"335I see no need to revisit the relevant evidence. I think I have sufficiently summed up earlier in these reasons the plaintiff's situation as I view it. I accept that she has had a back injury of moderate severity and that she suffers pain and discomfort to a varying extent. There was a need for various treatment regimes for about two years, and there is an ongoing need for analgesic use. The plaintiff also has difficulties with her knee, although that is of far less significance, and whatever symptoms remain from her hand injury, are of nuisance value only. She will continue to suffer to one degree or another in the foreseeable future, but I do not accept that her level of pain and suffering, and the loss of amenities of life have been and will be as she suggests. I am required to have regard to the proportionality of the sum awarded to the plaintiff's injuries and their consequences, and the sum awarded must be fair and reasonable compensation for those injuries: Southern Regional Health Board v Grimsey (1998) 8 Tas R 166 at 188. I allow $40,000."

The principles applicable to the assessment of damages for injuries and disabilities, and to the determination of appeals concerning such assessments, were stated by the High Court in Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 at 124 – 125 as follows:

"It is the relationship of the award to the injury and its consequences as established in the evidence in the case in question which is to be proportionate. It is only if, there being no other error, the award is grossly disproportionate to those injuries and consequences that it can be set aside. Whether it is so or not is a matter of judgment in the sound exercise of a sense of proportion. It is not a matter to be resolved by reference to some norm or standard supposedly to be derived from a consideration of amounts awarded in a number of other specific cases. … The principle to be followed in assessing damages is, in our opinion, not in doubt. It is that the amount of damages must be fair and reasonable compensation for the injuries received and the disabilities caused. It is to be proportionate to the situation of the claimant party … What was sought to be done in this case by the appellant's counsel, namely, to derive a norm or standard from a group of judgments of this Court reviewing awards of damages on appeal is erroneous. The same would be true if the same course were sought to be pursued in relation to awards of a Supreme Court or of a County or District Court. The judgment of a Court awarding damages is not to be overborne by what other minds have judged right and proper for other situations. It may be granted that a judge who is making such an assessment will be aware of and give weight to current general ideas of fairness and moderation. But this general awareness is quite a different thing from what we were invited by Planet's counsel to act upon in this case. The awareness must be a product of general experience and not formed ad hoc by a process of considering particular cases and endeavouring, necessarily unsuccessfully, to allow for differences between the circumstances of those cases and the circumstances of the case in hand."

Counsel for the appellant referred us to a number of personal injury cases in Tasmania and other Australian jurisdictions, arguing that each of them was comparable with this case, in an attempt to persuade us that the award of $40,000 was inadequate. He relied on the Civil Liability Act 2002, s28, which provides as follows:

"(1) In determining damages for non-economic loss, a court may refer to earlier decisions of that or other courts for the purpose of establishing the appropriate award in the proceedings.
(2) For that purpose, the parties to the proceedings or their counsel may bring the court's attention to awards of damages for non-economic loss in those earlier decisions."

That section was introduced by the Civil Liability Amendment Act 2003, s12 of which provides as follows:

"The amendments made by this Act do not apply to a cause of action accrued before the commencement of this Act."

By virtue of s2 of that Act, it commenced on the day when it received the Royal Assent. That day was 4 July 2003, more than 12 months after the appellant's accident. Her counsel knew all that, but argued that the enactment of s28 had modified the common law. They argued that the principles discussed by Gleeson CJ, Gaudron and Gummow JJ in Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 at pars[19] – [28] were applicable.

We see no need to spend any time considering that submission. If it is correct, which we very much doubt, then a court considering what award is appropriate for damages for non-economic loss may either refer to its earlier decisions or those of other courts, or choose not to do so. The learned trial judge did not refer in his lengthy and thorough reasons to earlier awards of damages in Tasmania or elsewhere. That is no indication of error, even if s28 was somehow applicable. There is nothing to suggest that he failed to "be aware of and give weight to current general ideas of fairness and moderation". In our view all of the cases relied on by counsel for the parties to this appeal in relation to the quantum of damages for non-economic loss turned on their own facts, and no purpose would be served in undertaking a comparison between the facts of this case and the facts of any other cases.

Having regard to the findings of the learned trial judge, and applying the principles discussed in Planet Fisheries, we consider that the award of $40,000 under this head by the learned trial judge was low by Tasmanian standards, and probably very low by the standards of some comparable Australian jurisdictions. However we do not consider that it was so low as to be disproportionate to the pain, suffering and loss of amenities suffered by the appellant. Ground 7 must fail.

Impairment of past earning capacity – introduction

The appellant claimed damages for the loss of her earning capacity on the basis that, but for her injuries, she would have continued to operate the Tingletree business indefinitely, possibly well beyond the age of 65. She contended that her earning capacity had been destroyed, with the result that, apart from her ability to earn an income from Tingletree between her fall and the sale of that business, she had no earning capacity, and would never again have any earning capacity.

Her claim for damages for past loss of earnings was quantified by reference to her taxable income over the four years before the fall, adjusted for inflation. Essentially the claim, as particularised, was framed as follows:

·     The appellant's average annual gross earnings for the four years ending 30 June 2002 (13 days after her fall) were $59,923.
·     For the financial years from 2002/03 to 2008/09 inclusive, that figure was adjusted to allow for annual increases in the Consumer Price Index ("CPI") varying from 2.9% to 3.3%.
·     Income tax was deducted.
·     The appellant's actual earnings in the 2002/03 and 2003/04 years, including a redundancy payment, were deducted. (She had no earnings after the sale of the business in 2003/04.)
·     On that basis, it was calculated that, as at 31 December 2009, the difference between the appellant's actual earnings and her hypothetical earnings, if she had continued to work as before without interruption, amounted to $303,861 after tax.

After considering the provisions of the relevant legislation, his Honour concluded at 574:

"But a grant even of such a pension cannot be obtained as of strict right and it is plain that it is granted after a consideration of the position or situation in which the applicant stands and entirely for his use and benefit and not in relief of any person antecedently liable to him to compensate him in any way for his loss of vision."

Windeyer J considered what the situation would be if a plaintiff was granted an invalid pension on some basis other than permanent blindness and then went on to recover damages. His Honour referred to the provisions in the 1947 Act that imposed a means test in relation to a pensioner's income, and those which empowered the Director-General to cancel, suspend or reduce a pension. His Honour continued at 585 – 586:

"This means that a pension (of anyone except a blind person) is reducible if the pensioner afterwards recovers substantial damages: and it may be assumed that ordinarily a reduction will be made, because as Scrutton LJ said, 'it is difficult to believe that a public department would put upon the taxpayer a burden which should be discharged by the wrongdoer' (Baker v Dalgleish Steam Shipping Co (1922) 1 KB 361, at p 373).
Therefore, as a pension (except that of a blind pensioner) may be discontinued or reduced having regard to any amount recovered as damages, those damages must be assessed without regard to the prospects of the continuance of the pension."

His Honour went on to consider what approach should be taken in relation to invalid pension payments received before the date of trial and, at 586 – 587, said the following:

"At this point it is only necessary to say that the Commonwealth disburses its bounty according to the statute; and it may override the common law. To read the Act as meaning that the grant of a pension diminishes a pensioner's claim against a wrongdoer would be to the advantage of the wrongdoer and his insurer: but it would be, or might be, to the disadvantage of the Commonwealth and of the pensioner. This is not, in my view, the result that the statute on its true construction produces. I am therefore of the opinion that, because of the terms of the Act, evidence of the grant of an invalid pension, or of a claim for a pension, for disabilities other than permanent blindness is irrelevant in an action for damages for personal injury."

His Honour went on to consider the impact of invalid pensions awarded to permanently blind persons on their entitlements to damages and, at 600 – 601, concluded as follows:

"Pensions to permanently blind persons are also, I think, to be disregarded; but for a different reason. That reason is that the manifest policy of the Act, as I read it, is that a blind pensioner is to have his pension in addition to whatever rights of action or proprietary rights he may have. The distinction between blindness and other disability is that the Commonwealth when granting a pension undertakes in the one case an obligation that cannot afterwards be diminished if compensation be recovered from the wrongdoer: in the other case it may be. But in neither case is the wrongdoer's liability reduced: for the pension is not given by the Commonwealth to aid him."

Redding v Lee and Evans v Muller (above) were heard separately, but the judges of the High Court wrote "rolled up" judgments dealing with both appeals. Both concerned assessments of damages for personal injuries caused by negligence. In Redding v Lee, it was held by the majority (Gibbs CJ, Mason, Murphy, Brennan, Deane and Dawson JJ, Wilson J dissenting) that past and future payments of an invalid pension were to be disregarded. The legislation had been amended since Espagne, so that an invalid pension was payable as of right to an eligible claimant. However the amount of the pension continued to be discretionary, and an income test continued to apply. It was thus open to the Commonwealth to cancel or reduce a pension if the recipient recovered damages, so that any pension payments after the recovery of damages might be regarded as intended as payments to be enjoyed over and above the payment of damages.

In Evans v Muller, it was held by a different majority (Mason, Wilson, Deane and Dawson JJ, Gibbs CJ, Murphy and Brennan JJ dissenting) that unemployment benefits received prior to trial were to be taken into account in assessing damages. The majority regarded it as significant that neither the entitlement to receive unemployment benefits nor the amount of the benefits was discretionary.

All members of the High Court took the view that the two appeals had to be decided in accordance with the principles expounded in Espagne: Gibbs CJ at 126; Mason and Dawson JJ at 137; Murphy J at 148 – 149; Wilson J at 151; Brennan J at 159; Deane J at 168. However the members of the court differed as to what results should flow from applying the established principles to the facts of the two appeals.

Mason and Dawson JJ, who formed part of the majority in both appeals, wrote a joint judgment. Their Honours drew attention to s28(1) of the 1947 Act, which had not been amended since Espagne, whereby the Director-General, having decided to grant an invalid pension, was required to have "regard to all the circumstances of the case" in determining what rate of pension was "reasonable and sufficient". They observed that the Director-General was entitled to have regard to the existence of a damages claim, and concluded, at 143:

"Accordingly, the existence of s 28(1) is indicative of a legislative intention that pensions paid under the Act should be disregarded in the assessment of damages, the latter having already been taken into account in the payment of the former."

Their Honours took a different view in relation to unemployment benefits because the relevant statutory provisions gave the Director-General no discretion to consider the general circumstances of an applicant, either in deciding whether or not to grant an unemployment benefit or in determining the rate of that benefit. That led them to conclude that such benefits were "a substitute or partial substitute for wages, justifying the same treatment as wages in terms of assessment of damages."

A number of passages in the judgments in the two appeals suggest that payments of a pension or benefit should be disregarded in assessing damages if the recipient's actual or prospective entitlement to damages may be taken into account in determining whether the benefit or pension should be paid, or in determining the amount to be paid.

In obiter dicta at 125 Gibbs CJ, having referred to the judgments of Dixon CJ and Windeyer J in Espagne said:

"The test suggested is a general one, and it requires the court to consider the nature of the benefit which the defendant seeks to set off against the damages, and to inquire whether the person or body supplying the benefit intended that the plaintiff should enjoy it in addition to whatever damage he might recover from the defendant. In the case of a benefit provided under statutory authority, the intention of the legislature, in providing the benefit, must be gleaned from the statute itself as a matter of interpretation. If the statute expressly provides (as some statutes relating to workers' compensation have done) that a plaintiff who has recovered damages shall repay the amount of the benefit it will be clear that the receipt of the benefit must be disregarded in the assessment."

In obiter dicta at 163, Brennan J said the following:

"In some instances, however, the indicia of legislative intention are clear enough. Where, for example, the Act provides for recoupment of a benefit or allowance out of damages awarded to the person receiving the benefit or allowance, it may be taken that the legislature does not intend that damages should be diminished by receipt of the moneys to be recouped. … Otherwise the receipt of a benefit or pension would result in a double deduction — once from the damages assessed and again in paying out the sum recouped by the Commonwealth."

At 168, Deane J concluded his judgment with a suggestion for legislative reform, as follows:

"One cannot but be conscious of the unfortunate aspects of a decision that payments received on account of unemployment benefits should be taken into account in the assessment of damages while payments received on account of invalid pensions are not. Quite apart from the obvious appearance of incongruity, the benefit to the insurer resulting from payment of unemployment benefits has almost as little to justify it as the double benefit to the plaintiff in the case of an invalid pension and is liable to constitute a further financial advantage to be obtained by an insurer from delay in the settlement or hearing of a claim. The obvious and commonsense solution — ie that payments on account of either invalid pension or unemployment benefits not be taken into account in the assessment of damages but, to the extent appropriate, be recouped to consolidated revenue in much the same manner as payments received on account of workers' compensation are recouped to the workers' compensation insurer — lies, however, in the hands of the Parliament and not of the Court."

Murphy J made a similar suggestion at the conclusion of his judgment, at 151. It was some four years later that the new statutory regime based on preclusion periods commenced to operate on 1 May 1987.

The first reported case in which the impact of the legislative changes was considered was Muscat v Statewide Industries Pty Ltd [1988] 1 Qd R 637. The plaintiff in that case had received unemployment benefits for a period ending before 1 May 1987, had returned to work, and was working at the time of his trial, but was at risk of becoming unemployed again as a result of his injuries. In the event of him becoming unemployed in the future, he would have been entitled to receive unemployment benefits again, and the new legislative regime would have applied. Ambrose J considered whether the right to receive unemployment benefits in the future should be taken into account. No question arose as to the unemployment benefits paid prior to trial, to which Evans v Muller applied.

Ambrose J quoted the final paragraph of the judgment of Deane J in Redding v Lee, Evans v Muller – the paragraph quoted above – and said at 643 – 644:

"To my mind the amendments to the Social Security Act 1947 (Cth) in 1986 to which I have referred have the effect of providing a 'solution' of the kind to which Deane J. referred …
In the light of this statutory amendment relating to the plaintiff's entitlement to unemployment benefits upon recovery of his damages, I do not discount his award of damages for diminution of earning capacity by reason of any entitlement he may have in the future to unemployment benefits."

That reasoning was referred to with approval in the Full Court of the Supreme Court of Queensland by Thomas J, with whose reasons Andrews CJ agreed, in Dabinett v Whittaker [1989] 2 Qd R 228 at 232, where his Honour said:

"I respectfully agree with the reasoning of Ambrose J in Muscat v Statewide Industries Pty Ltd [1988] 1 Qd R 637, which holds that under the present legislation a plaintiff's damages for diminution of earning capacity ought not to be discounted by reason of future expectation of unemployment benefits. In my view a court should not now be required to make any adjustment to damages, upwards or downwards, by reason of future expectation of social security payments, or the expectation that part of them may need to be repaid, whether they happen to be unemployment benefits or sickness benefits. The same applies to pre-trial payments. Under the present system the government gives benefits, and the government may take away part of those benefits after a court has compensated a plaintiff. The courts are now free to calculate appropriate damages at common law without regard either to the amount of those benefits or the amount that may be taken back."

Those comments, whilst authoritative, were obiter. The question before the Full Court was whether payments of sickness benefit should be taken into account. The preclusion period provisions in the 1947 Act did not apply to payments of sickness benefit that commenced before 8 February 1988, but the appellant had commenced to receive sickness benefits before that date.

One might think, having regard to the authorities referred to above, that the new legislation made it clear that Parliament intended all payments of benefits made after the expiry of the statutory preclusion period to be enjoyed by their recipients in addition to any damages or other compensation, and that payments after the expiry of the preclusion period were therefore not to be taken into account in assessing damages. But a different view was taken in Tasmania, and in Tasmania alone.

The first Tasmanian case in which the new statutory regime was considered was Sorenson v Woolnough [1989] Tas R (NC) 15; A32/1989; [1989] TASSC 36. Underwood J (as he then was) referred to Espagne, Redding v Lee, Evans v Muller, and a number of other cases decided before the 1987 amendments. He considered the new statutory regime in detail, expressed the view that it would be impossible to calculate the length of the preclusion period before assessing the quantum of damages, and concluded that the appropriate course was to take future unemployment benefits into account as a contingency "in a broad practical common sense way". His Honour said very little as to why he concluded that they should be taken into account. He referred to, and followed, a number of cases concerning unemployment benefits paid or payable under the old statutory regime: Jesberg v Rackemann [1986] 1 Qd R 181; Tuncel v Renown Plate Co Pty Ltd [1976] VR 501; Bertram v Kopodistrias [1984] VR 619; Triffett v Thomas B34/1986 (Nettlefold J). At 21, par[47], he erroneously described the comments of Ambrose J in Muscat v Statewide Industries Pty Ltd (above) as obiter. He went on to say:

"However, I think it is an over simplification to conclude that the legislative change means that in an assessment of damages for lost earning capacity the future receipt of unemployment benefits should be ignored.”

The same point was considered by Wright J in Burbury v Sievers A83/1994; [1994] TASSC 132. Parts of that judgment were reported in both the Tasmanian Reports and the Motor Vehicle Reports, but nothing was reported as to the relevant point. At 46, par[173], after referring to Redding v Lee and the 1991 Act, his Honour said:

"To test the legislation by reference to whether or not it is intended to confer a benefit upon an injured person irrespective of whether that person has a right to claim damages or compensation from another party is not a wholly satisfactory test. Nor is it easy to discern some overall purpose to legislation of this kind, (eg see the comments of Brennan J in Redding v Lee (supra) at 163). If the legislation requires an injured party who has received benefits under the legislation to repay such benefits in the event of a successful claim it is usually apparent that such a process negates any argument that the damages or compensation should be reduced. The present legislation appears to combine two philosophies and to some extent suggests a compromise approach by Parliament …".

His Honour proceeded to take into account the entitlements of the two plaintiffs in that case to disability pensions. Ever since that case, Tasmanian judges have proceeded on the basis that future social security payments, or the possibility thereof, are to be taken into account in assessing damages. In Stoward v Joron Pty Ltd B66/1994; [1994] TASSC 180, Crawford J (as he then was) at 11, par[45], revealed that he was inclined to reject the argument that future benefits should be taken into account, but said "I feel obliged to follow the principles stated by my brother judges in Sorenson v Woolnough and Burbury v Sievers." In Pasminco Australia Ltd v Gasu A42/1996; [1996] TASSC 76, the Full Court followed those cases. However the point was not argued. Counsel for both sides proceeded on the basis that future social security benefits were to be taken into account, as did Zeeman J at 10, pars[38] and [39], with Wright and Slicer JJ agreeing. The same approach was taken in Anthony v Tasmanian Alkaloids Pty Ltd [2004] TASSC 118 at par[83] (Blow J), and Marlow v Walsh [2008] TASSC 58 at pars[171] – [175] (Porter J, with whom Evans and Blow JJ agreed). The point was not argued in Marlow v Walsh either.

In Renehan v Leeuwin Ocean Adventure Foundation Ltd (2006) 17 NTLR 83, 151 NTR 1, at par[207], a question arose as to whether unemployment benefits paid before the trial should be taken into account or disregarded. Mildren J reviewed the authorities as to this point, and followed the Queensland authorities in preference to the Tasmanian ones, saying:

"… I think the preferable view is that it is intended by the Social Security Act that, to the extent that the plaintiff may get an award which is more than he is obliged to repay, he can keep the excess. That being so, no deduction will be made for that possibility in the calculation of the loss."

In our view the point concerning future social security benefits was wrongly decided in Sorenson v Woolnough and Burbury v Sievers, and those cases should not be followed as to that point. Ever since Espagne, the law has been clear. The proper approach is to determine whether the payer of a benefit to an injured person intended the payment or payments to be enjoyed in addition to any right to damages or compensation from another party. The relevant provisions in the Social Security Act and the legislation that it replaced make it clear that Parliament intended the recipients of pensions and benefits, if they had claims or entitlements to damages or other compensation for their injuries, to keep the payments that they received after the expiry of the statutory preclusion period, in addition to any damages or compensation that they might receive. Applying Espagne, Redding v Lee and Evans v Muller, it follows that social security payments received after the preclusion period must not be taken into account in reduction of damages. Payments made during the preclusion period must also be ignored, but for a different reason, namely that they are fully recoverable by the Commonwealth.

We reject the notion that the legislation combines two philosophies. It has achieved precisely what Deane J suggested in Redding v Lee, Evans v Muller. It imposes a requirement whereby social security payments, whilst not being taken into account in the assessment of damages, must "to the extent appropriate, be recouped to consolidated revenue in much the same manner as payments received on account of workers' compensation are recouped to the workers' compensation insurer": Redding v Lee, Evans v Muller (above) at 168. The receipt of damages or compensation does not forever preclude the recipient from receiving social security benefits, nor is eligibility for such benefits reduced on a dollar-for-dollar basis. Ineligibility and recoupment are provided for "to the extent appropriate", as determined in accordance with the statutory provisions.

For the reasons stated, ground 4 must succeed, and the appellant's damages for the impairment of her future earning capacity must be re-assessed.

Re-assessment of damages for impairment of future earning capacity

The learned trial judge discussed the appellant's residual earning capacity at pars[298] – [303] of his reasons. His findings and observations can be summarised as follows:

· Because of the appellant's low back pathology there were limitations on the work she could do.
· She had a retained capacity to earn, of significant value. He accepted Dr Gorman's evidence that she could do teaching work that did not involve lifting, bending and flexing tasks, and that she could carry out other administrative roles if she could get up and move around.

·     Analgesic medication would not affect her earning capacity.
·     Prolonged sitting would be a problem, but she could sit for more prolonged periods than she was making out.
·     Pain management and strengthening programs had a reasonable chance of improving her mobility and general functioning.
·     She had continued, but not completed, a course leading to a diploma of children's journalism.
·     She had enrolled in, but not completed, a diploma course relating to professional counselling.
·     She maintained her registration as a teacher in Tasmania.

At the trial, the appellant gave uncontroversial evidence that she completed a four-year Bachelor of Education course at the University of Tasmania in 1984 and was employed as a classroom teacher from 1985 until the end of the second term in 1987, initially teaching a grade 3 class. She left teaching to open Tingletree in 1987. From 1991 until 2003 she was a member of the Australian Council for Educational Administration, which is a national body involved in policy and curriculum development and community liaison.

In our view the appellant's skills, qualifications and experience made her employable in many teaching and administrative positions for which she would be physically fit. If she were to attempt to re-enter the workforce, she might take some time to find suitable work. It is quite possible that she would be able to find full-time work in the long run, but there is a substantial chance that she would only be able to find intermittent or part-time work. It is unlikely, though not out of the question, that she would be able to earn as much as she could have if she had continued to operate and manage Tingletree.

Counsel for the appellant submitted that, if social security benefits were not to be taken into account in assessing damages, we should have regard to the amount that the appellant was receiving by way of disability support pension at the time of the trial ($250.74 per week); compare that figure to the hypothetical earnings figure of $1,108 per week; and increase the learned trial judge's award of $168,000 for future economic loss to a very large extent. However that methodology does not address the need to estimate what the appellant is reasonably capable of earning.

As we have said, after estimating what the appellant could have been earning if she were still at Tingletree and had not been injured, and after allowing for the usual contingencies, his Honour valued the appellant's hypothetical earning capacity at $419,731. He deducted 60% of that figure to allow for her residual earning capacity and for the possibility of her mitigating her losses by obtaining social security benefits. In our view a deduction of 40%, or $168,000 in round figures, would be appropriate to allow for the residual earning capacity alone. If one uses the same multiplier that was used in the learned trial judge's future economic loss calculations, it appears that such a deduction is consistent with the appellant having retained a capacity to earn, on average, the equivalent of about $288 per week from the time of the judgment until age 70. We consider that to be a reasonable estimate of her retained capacity. The 40% deduction produces a figure of $251,838.60, which we would round up to $252,000.

It follows that, as a result of ground 4 succeeding, there must be an adjustment of the judgment sum in the appellant's favour to the extent of $84,000, less 20% for contributory negligence. That is, there must be an adjustment of the judgment sum of $67,200 in her favour.

Superannuation (ground 6B)

The learned trial judge awarded damages for the loss of the appellant's superannuation entitlements over and above his award for loss of earning capacity. He did so on the basis that the damages for loss of superannuation entitlements should be proportionate to the damages for loss of earning capacity. The appellant's ground 6B asserts that there were errors relating to the award in respect of lost earning capacity as identified in other grounds, and that the award of damages for loss of superannuation entitlements was therefore inadequate.

Because ground 4, relating to social security benefits, has succeeded, ground 6B must also succeed. The learned trial judge accepted evidence from an actuary to the effect that the amount required to compensate the appellant for the loss of superannuation benefits was proportionate to the loss of earnings. In respect of the superannuation benefits relating to future earnings, the appellant claimed $57,342, which was 8.9% of the amount that she claimed for the loss of future earnings. His Honour awarded $14,952, which was 8.9% of his award of $168,000 for future economic loss. Since we have decided that the award for future economic loss should be increased to $252,000, it follows that the award for the loss of future superannuation benefits should be increased to 8.9% of that figure, namely $22,428. That represents an increase of $7,476. There must be an adjustment of the judgment sum in the appellant's favour to that extent, less 20% for contributory negligence. That is, there must be a further adjustment of the judgment sum of $5,980 in her favour.

Pain management and gymnasium fees

Apart from damages for past and future economic loss, and general damages for pain and suffering and loss of amenities, the only other component of the award of damages that is challenged in these proceedings is the award of $21,550, before adjustments, in respect of pain management and gymnasium fees. Each of the notices of cross-appeal contains a ground in the following terms (the council's ground 4; Mr Trezise's ground 7; the landlords' ground 4):

"The Learned Trial Judge erred at [318] and [319] in failing to discount the award of damages for attendance at a pain clinic and gymnasium to reflect the degree of probability that the plaintiff would ever avail herself of these services and hence incur the expense."

There is no question raised on this appeal about whether the pain management and strengthening programs were needed by the appellant as a consequence of her compensable injuries. The learned trial judge accepted the view of medical experts that these programs "have a reasonable chance of improving her mobility and general functioning": par[299]. There is no challenge to that finding. The only challenge to this component of the award is that there was no discount for the degree of probability that the appellant would not avail herself of these services. This ground of the notices of cross-appeal did not receive attention in the written or oral submissions. Perhaps the respondents saw their position as implicit in their submissions regarding other grounds. Regardless of the lack of submissions and the reason, we will give consideration to this ground.

The learned trial judge allowed $14,700 for a multidisciplinary pain management program to provide the appellant with assistance in developing pain management strategies and to reduce her reliance upon pain relief medication. The type of program under consideration is offered at the Royal North Shore Hospital in Sydney or Wesley Hospital in Brisbane. The trial judge noted that Drs Dixon, Gorman and Davis said that the appellant would benefit from attendance at a pain management program and that the need for the program was not disputed by the respondents. The amount allowed included travel expenses and accommodation for the appellant and the cost of an initial attendance for assessment, as well as the cost of the program.

The appellant gave evidence at the trial that if she had the opportunity she would attend a pain management program. She also gave evidence about her compliance with treatment and therapies in the past. These included physiotherapy and the use of a TENS machine. Our attention has not been drawn to any evidence to support the contention that, despite needing the treatment, the appellant may not avail herself of it. There was no suggestion that she had an aversion to any of the treatment or therapies that would be provided as part of the program, or that she was not responsible in following the recommendations of her medical practitioners regarding treatment. It was entirely open for the learned trial judge to proceed on the basis that the appellant would attend the pain management program and not to discount the component of the award for the prospect that she may not attend. No error has been shown in that approach.

The learned trial judge allowed an additional amount of $6,850 for a gymnasium program and membership fees. The evidence of Drs Dixon and Davis recommended a strengthening program carried out under supervision of a physiotherapist at a gymnasium (Dr Dixon also recommended hydrotherapy) and then a self-managed program after that. The claimed cost was an amount of $18,784 which comprised an initial cost of $2,500 and gymnasium membership for life at an average cost of $1,100 per annum, the present value of membership fees for life being $16,284. The learned trial judge allowed the cost of the supervised program of $2,500, and allowed gym membership for self-management of the program for a period of five years, taking account of the present value. He held the view that thereafter the appellant would have to continue at her own expense. The evidence of the appellant at trial was that she would avail herself of such a rehabilitation program. Our attention was not drawn to any evidence demonstrating reluctance by the appellant to pursue her rehabilitation. Any prospect that her interest in attending a self-managed gym program might wane in years to come was accommodated by allowing for only a five year period. It has not been shown that there was any error in the approach taken or that some further discount was required.

Outcome of the appeal and cross-appeals

Grounds 4 and 6B of the appeal, relating to social security benefits, are the only grounds that have succeeded. The appeal will be allowed. The judgment sum of $295,350 will be increased by $73,180, so that the judgment sum as varied will be $368,530. The cross-appeals will be dismissed.

Reasons for rejecting application to adduce evidence

At the beginning of the hearing of the appeal, counsel for the appellant applied for leave to adduce some actuarial evidence in relation to the CPI. They sought to read an affidavit of an actuary which had over 70 pages of statistical information annexed to it. The Court rejected that application, stating that reasons would be published in due course. We will now state our reasons for rejecting the application.

The relevant powers of the Full Court to receive further evidence are conferred by the Supreme Court Civil Procedure Act 1932, s48(1) and (3). Those subsections read as follows:

"(1)   On the hearing of any appeal a Full Court shall have power to receive further evidence upon questions of fact, and may take such evidence by oral examination in court or by affidavit, or may direct the same to be taken by a judge or an examiner, or a commissioner, or a judge of an inferior court of civil jurisdiction.
(2)    …
(3)    Upon any appeal from a judgment, order, or other determination given or made after the trial of any cause or matter on the merits, such further evidence (except as to matters which have occurred after the date of judgment, order, or determination) shall be admitted only by special leave of the Full Court, which shall only be granted in cases in which —
(a) the evidence was not in the possession of the party seeking to have it admitted, and could not by proper diligence have been obtained by him, before the termination of the trial; or
(b) there is some other special circumstance which, in the opinion of the Full Court, justifies the admission of it."

Senior counsel for the appellant submitted that we should receive the actuary's evidence for two reasons:

· So that, when considering awards of general damages in particular cases for the purposes of ground 7, we could be aware of the precise present day equivalent of every sum awarded in those cases by having regard to increases in the CPI.
· So that, when considering the grounds of appeal relating to economic loss, we could have regard to the December 2010 CPI figures, which were not available to the learned trial judge when he gave judgment, and were not published until March 2011.

So far as the earlier awards of general damages are concerned, the Court is able to take judicial notice, in a general way, of the changes in the value of money over the years. As the High Court made clear in Planet Fisheries, the assessment of general damages for non-economic loss is a task that has nothing to do with precise mathematical calculations. Information about particular cases will often be of little or no assistance because cases turn on their own facts. There is no need for the provision of actuarial evidence and statistical information in the ordinary run of cases concerning non-economic loss. The cost of adducing such evidence would ordinarily be out of all proportion to its usefulness, if any. On the hearing of an appeal, the procedural fairness implications are significant. If one party adduces such evidence, the other parties must be permitted to cross-examine the actuary, and given an opportunity to adduce evidence of their own in relation to issues that are opened up.

Every case in which it is alleged that a plaintiff's earning capacity has been impaired is potentially a case in which inflationary increases in earnings prior to trial could be the subject of a calculation based on CPI increases. Permitting litigants, after judgment, to argue appeal grounds based on updated CPI information would run counter to the principle that there must be an end to litigation. Commonly the assessment of damages for past economic loss cannot be undertaken with a fine degree of precision, and it is necessary for trial judges to undertake calculations based on a series of estimates. If it is desired to rely upon new evidence as to inflation rates or CPI figures, it would be inappropriate to allow such evidence to be adduced on appeal unless it was likely to demonstrate that the trial judge had arrived at a wholly erroneous estimate of damages, or at least that the amount awarded under one head of damage was manifestly inadequate or manifestly excessive. There was no suggestion that the updated CPI information in this case would make a significant difference to the outcome if it were to be received by this Court.

At best the evidence in question was of very limited significance. The reasons for not admitting it, relating to cost, inconvenience, and the finality of litigation were overwhelming. For those reasons, we refused the application.

Reasons for allowing application to amend

During the hearing of the appeal, all of the respondents applied to amend their notices of cross-appeal by adding grounds 1A and 1B, which we have dealt with above. That application was opposed. Junior counsel for the appellant argued that the respondents were seeking to take points that were not taken at trial, that the trial might have been conducted differently if those points had been taken at trial, and that the appellant would suffer prejudice if the amendments were allowed. At the conclusion of the hearing of the appeal, we granted leave to amend as sought, without then stating our reasons for granting leave. It remains for us to state them now.

Grounds 1A and 1B raised contentions as to unearned dividend income, as disclosed in two of the appellant's tax returns, having been taken into account in the assessment of damages for past and future economic loss, and as to CPI movements, rather than evidence of award wage increases, having been taken into account in assessing damages for future economic loss. It is true that those points were not taken at trial. However there was no reason for any such points to have been mentioned at trial until after the close of the evidence. In fact there were very sound strategic reasons for no such points being mentioned by counsel for the defendants prior to closing addresses. It therefore cannot be said that additional or different evidence might have been given or adduced if any of the points in question had been taken at the trial. The application for leave to amend was made on the first day of the hearing of the appeal. Senior counsel for the appellant made oral submissions during the hearing of the appeal as to the merits of the proposed additional grounds (as they then were). When we granted leave to amend, we permitted him to provide written submissions in relation to those grounds, and he subsequently did so. We granted leave because grounds 1A and 1B appeared to have possible merit, and because we were satisfied that the appellant would suffer no prejudice if leave were granted.

Loss of earning capacity	$281,350.00
Loss of superannuation entitlements	$23,100.00
Domestic and personal care	$1,500.00
Medical, physiotherapy and associated expenses	$23,226.25
Medication costs	$7,525.00
TENS unit and miscellaneous items	$3,293.00
Pain management and gymnasium fees	$21,550.00
Equipment and aids	$1,200.00
Travelling expenses	$1,510.00
Medicare reimbursement	$1,000.00
Tax on weekly payments of compensation	$3,764.84
Pain and suffering; loss of amenities	$40,000.00
$409,019.09