State of New South Wales v Steed

[2001] NSWCA 178

CITATION:	State of New South Wales v Steed [2001] NSWCA 178
FILE NUMBER(S):	CA 40414/00
HEARING DATE(S):	12/06/01
JUDGMENT DATE:	21 June 2001
PARTIES :	State of New South Wales v Elizabeth Ann Steed
JUDGMENT OF:	Heydon JA at 1; Young CJ in Eq at 2; Ipp AJA at 3

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	344/00
LOWER COURT JUDICIAL OFFICER :	Delaney DCJ

COUNSEL:	P Taylor SC/E R Sergi (Appellant) S L Walmsley SC/H J Marshall (Respondent)
SOLICITORS:	Lynn Boyd (Appellant) Marsdens (Respondent)
CATCHWORDS:	TORT - Negligence - Duty of care - Occupier's liability - Whether foreseeable risk of injury present - condition of earthen mound - significant risk of harm due to unsafe condition of mound after heavy rain - risk of carelessness on the part of entrants to be expected - scope of duty of occupier - occupier should have taken steps to avoid possibility of injury from walking across mound after heavy rain - Contributory negligence - apportionment. - DAMAGES - Assessment of damages - Loss of past earning capacity - error in assessing loss due to wrong finding that respondent would have worked full-time - Loss of future earning capacity - error in assessing damages - Damages for domestic assistance. D
CASES CITED:	Brodie v Singleton Shire Council [2001] HCA 29 Morgan v Sherton Pty Limited (1999) 46 NSWLR 141 Wyong Shire Council v Shirt (1980) 146 CLR 40 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 Agar v Hyde (2000) 74 ALJR 1219 Prast v Town of Cottesloe (2000) 22 WAR 474 Mountain Cattlemen's Association of Victoria Inc v Barron [1998] 3 VR 302 Secretary to the Department of Natural Resources and Energy v Harper [2000] 1 VR 133 Phillis v Daly (1988) 15 NSWLR 65 Overseas Tank Ship (UK) Limited v The Miller Steamship Company Pty Limited [1967] 1 AC 617
DECISION:	(1) Appeal upheld and orders made by Delaney DCJ be set aside (2) Verdict and judgment for the respondent in the sum of $358,977.75 (being 75% of $478,637.00) (3) Appellant to pay the respondent's costs of the trial and the respondent pay the appellant's costs of the appeal (4) The respondent to have a certificate under the Suitors' Fund Act.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40414/00

DC 344/00

HEYDON JA

YOUNG CJ in Eq

IPP AJA

Thursday 21 June 2001

STATE OF NEW SOUTH WALES v ELIZABETH ANN STEED

JUDGMENT

1    HEYDON JA: I agree with Ipp AJA.

2    YOUNG CJ IN EQ: I also agree with Ipp AJA.

3    IPP AJA: This appeal concerns a claim for damages for personal injuries made by the respondent against the appellant as the owner and occupier of Guise Public School, Macquarie Fields.

4    On 29 January 1997 the respondent, who was then a teacher’s aide at the school, fell while walking across an earthen mound and thereby seriously injured her left leg.

5    The respondent brought an action in the District Court and alleged that her injuries were caused by the appellant’s negligence. Delaney DCJ upheld her claim. He found that the appellant was negligent and entirely responsible for the damages the respondent suffered. He assessed damages in the amount of $555,748 and ordered the appellant to pay that sum to her.

6    The appellant appeals against the orders so made. It challenges the finding that it was negligent and, in the alternative, contends that if it was negligent, the respondent was guilty of contributory negligence. The appellant further challenges his Honour’s assessment of damages.

7    The appellant was born on 10 October 1947. She left school at about age 15 years and then worked for a number of years in a bookbinder’s business. She was married in 1966 and had two children born in 1970 and 1973 respectively. Both her children went to Guise Public School.

8    The respondent’s house was adjacent to the school. The school was next to her back fence. At the time the respondent was injured, she had lived in that house with her family for approximately 18 or 19 years.

9    After her eldest child commenced her school career, the respondent began increasingly to be involved with the school in various voluntary capacities. She became supervisor of the canteen, president of the Parents’ and Children’s Association, and president of the Guise School Council and was holding these offices at the time of her accident. She gained the trust of the school authorities to the extent that she was given the task of opening the school for the police or anyone else who needed to obtain access to it after hours and she was provided with the master keys for that purpose.

10    For more than 10 years prior to the accident the respondent had been involved in the care of disabled children or children with special needs. Her interest in this area was aroused when she became foster mother to an intellectually disabled and sexually abused girl and began to care for a blind boy. The experience she so acquired led, in 1992, to her being employed by the school as a part-time teacher of children with physical or intellectual handicaps. In 1995 she obtained a Department of Education certificate as a teacher’s aide for children with special needs. At the time of her accident she was employed part-time at the school in that capacity.

11    Thus, for several years prior to the accident, the respondent spent a considerable amount of time in teaching and in performing various voluntary tasks at the school. She was required to go to the school virtually every day, and sometimes more than once a day, either in her paid capacity as a teacher’s aide or as a volunteer. She was regarded by the school authorities as a “very special person”.

12    Initially, when the respondent first began going to the school, the only route available to her was from her front door, along a public road, to the school buildings. This was about 350 metres long and she described it as a “long walk”. Mr Costa, the principal of the school until the end of 1996, described it in similar terms. To assist the respondent in gaining quick and shorter access to the school, Mr Costa helped her to persuade the Housing Commission to install a gate in the boundary fence between the back yard of her house and the school. Thereafter, to the knowledge of Mr Costa and the school authorities, the respondent, on a daily basis, walked across her back yard, through this gate, and across the school grounds to the school buildings in order to perform her various tasks. This was a far shorter and more convenient route than that which she had had to take before the gate was put in.

13    From photographs that were tendered in evidence it appears that the area over which the respondent walked when so going from her back yard through the gate to the school buildings was flat and grassed but with several bare patches.

14    For a long period of time prior to April 1996, the school had had to endure what was described as “quite serious flooding”. The flooding was caused by torrential downpours, usually in the summer months. There was a slope in the playground which led the water run-off directly to the school buildings.

15    In 1996 the school took advantage of an unemployment work scheme to construct certain earthworks on the school grounds. The earthworks were completed by earthmoving contractors in April 1996. Part of the earthworks included the construction of an open dish drain known as a swale. The swale ran across the entire width of the playground area for a distance of over 100 metres. The purpose of the swale was to channel the water away from the school buildings.

16    An earthen mound was constructed as part of the earthworks involving the swale. It is not entirely clear precisely where the mound was constructed in relation to the ditch, but it seems that the mound ran alongside the ditch for its entire length, immediately adjacent to it. I infer that the ditch and the mound constituted the swale.

17    The swale (and the mound) was constructed more or less parallel to the respondent’s back fence. The mound was about one to two feet wide and about one foot high. It was about 40 feet away from the gate in the respondent’s back fence. Thus, when walking from the gate across the school grounds to the school buildings, the respondent would - after 40 feet - have to cross the mound to be able to continue walking across the remainder of the grounds.

18    It remained an option to the respondent to walk from the front of her house, along the public road, to the school, but, as mentioned, this was a far longer journey and, after the completion of the construction of the swale, she continued following the route through the gate in the back fence and across the mound. As from the completion of the swale until the end of the school year in 1996, the respondent crossed the swale (and the mound) at least once a day.

19    The respondent was not the only person to walk across the mound at frequent intervals. Students and teachers regularly walked or ran across it at all points along its length.

20    After the swale was completed in April 1996, Mr Costa attempted, by sowing seed, to grow grass on the mound. He was, however, unsuccessful. In September or October 1996, the mound was turfed. Between then and the end of the year the newly laid turf was mowed twice by Mr Costa with a push mower and at least on one further occasion by an assistant who used a sit-on mower.

21    By 29 January 1997, it had been raining continuously for approximately two weeks. At that time, the respondent needed to go to the school buildings to open the school uniform shop for the school so that parents could purchase uniforms for their children before the new school year commenced. She decided to walk to the uniform shop through the gate in the back fence across the mound.

22    The respondent noticed that the ground where she was walking was “very wet” and, as she approached the mound, she became aware that it was “quite slippery”. As she stepped over the mound, she fell.

23    The evidence as to how she fell was brief but not entirely clear. She first said that she “slipped,” but then explained that “the turf gave away underneath my foot”. She was asked whether a little piece or a whole slab of the turf gave way and she said that it was a whole slab. She said that she did not merely slip on the grass. In describing how the turf “gave away” she pointed her hand in a downward motion indicating that she fell on the mound “almost on its down side”.

24    When Mr Costa gave evidence he was cross-examined by counsel for the respondent in an attempt to establish that he, personally, should have known that the mound was in a dangerous condition. He said, however, that he left the school in December 1996 and a new principal commenced in the 1997 school year. Therefore, he was not able to testify as to the condition of the mound in January 1997. When it was put to him in cross-examination that when the mound was wet people “might slip and fall on the wet grass”, he said that he could not answer the question as he had “not seen the swale work [sic-wet]”. He conceded, however, that “that may have been the case because apparently it rained quite a lot during that January break”. Earlier Mr Costa had been asked about the mound becoming slippery before turf was put down and he said that he could not recollect the swale being wet. On my understanding of Mr Costa’s evidence as a whole, it seems that while he was principal there was no occasion when the mound became wet and slippery.

25    Delaney DCJ found that the respondent fell because “portion of the grass that had been placed on the mound after the earthworks had been performed, moved”. Mr Taylor SC, senior counsel for the appellant, accepted this finding.

26    Delaney DCJ found further that “as a result of the rain which had fallen, … the area of earth and area of turf was not properly in place and … if a person walked upon it then more likely than not there could be some movement”.

27    His Honour went on to say:

“There was a risk in the course of preparation of this area of the flood mitigation works. This risk was there because school children would soon be on the premises, the school year being about to commence, and children might come onto the school property at any time as was known to the [appellant]. It was also known that the [respondent] would, from time to time, walk across that property and that part of the property where the mound was situated. There [sic-these] were matters which should have been in the mind of ay defendant and the defendant in this particular case”.

28    Delaney DCJ proceeded:

“[T]here is no doubt that if an inspection had been carried out and shown that there was, as the [respondent] found and I accept, an area of turf which was not secure in its place and liable to move when stepped on, then it would have been an easy, cheap and appropriate response for the [appellant] in this case to have placed a warning sign or a rope or some barrier or a bridge across the mound to ensure that the risk of injury to a person such as the [respondent] would not have occurred. The failure to take that course in this case was, I find, a breach of the duty owed by the [appellant] to the [respondent] and the cause of the injury suffered by the [respondent] on the day”.

Mr Taylor contended that the evidence did not establish that an inspection would have revealed that an area of turf was not secure in its place and liable to move when stepped on. He submitted further that the appellant could not have known that the turf was unstable in any way. Therefore, he contended, the finding that there was a breach of duty on the appellant’s part was erroneous.

29    Delaney DCJ said:

“I am satisfied that the [respondent], had she seen a warning sign advising her of the recent earthworks and the state of the mound, would have more likely than not avoided it, gone around it or taken some other evasive action. In those circumstances, more likely than not, the accident would not have occurred. There was a breach of the duty owed by the [appellant] to the [respondent] and the [respondent] is entitled to a verdict”.

Mr Taylor pointed to the fact that the respondent had not been asked whether she would have obeyed a warning sign and submitted that the finding of his Honour in this respect had no foundation.

30    When dealing with contributory negligence Delaney DCJ said:

“I am satisfied that in the circumstances which the [respondent] described she found the mound there was nothing which she did or could have done to have avoided the incident and nothing she did which caused or contributed to the injuries that she suffered in this case. They came about, I find, due to the failure of the [appellant] to alert her of something which was specifically not obvious, namely the condition of the turf. The mound was obvious but the condition of it certainly was not”.

Mr Taylor submitted, generally, that these findings were erroneous.

31    Neither at trial nor in argument before this Court did the parties suggest that any special rules relating to the tortious liability of a public authority governed the duty of care owed by the appellant to persons entering the school grounds (see Brodie v Singleton ShireCouncil [2001] HCA 29). Rather, the respondent’s case against the appellant was put squarely on the basis of occupier’s liability and this was accepted by the appellant.

32    The duty of the appellant as occupier was to take reasonable care to avoid foreseeable risks of injury to persons entering the school grounds. The fundamental question was whether the appellant committed a breach of that duty.

33    The risk of injury in this case arose from the condition of the mound. There is therefore a need to focus on that condition at the relevant time.

34    In her evidence in chief, the respondent said that certain photographs taken on 5 February 1997 showed the condition of the mound, at the time of the accident, in the area in which she fell. The photographs indicate that the surface of the relevant part of the mound consisted of patchy areas of different kinds. Most obviously, there were patches of lush grass. This grass was relatively long and a dark rich green in colour. Interspersed amongst the lush grass were areas of short grass of a particularly pale colour. This grass had been closely cropped or had not grown much at all. Amongst the lush grass and the other grass were many bare spots of varying sizes (some being relatively large) where black soil is apparent on the surface of the mound. It is likely that this would have been the condition of the mound for some time prior to the heavy rains in January 1997.

35    It seems obvious from these photographs that, after two weeks of continuous rain, the part of the mound in question would not be safe for persons to walk across. The bare areas would have become particularly muddy and there was every prospect that the areas with the pale, short grass would have become muddy as well. As areas of uncovered black soil are discernible in the midst of the patches of lush grass, it is likely that those patches would also have become soft and tending to muddiness. These inferences are reinforced by the respondent’s testimony that after she fell she “felt a lot of mud and dirt”. She said that she was “totally covered in mud”. The area as a whole must have been muddy indeed.

36    I have mentioned that the appellant did not challenge the finding that the accident was caused by the movement of an insecure portion of the grass on the mound. The movement as found by Delaney DCJ must have been caused by the giving way of the turf underneath the respondent’s foot as she testified. That this may have occurred on the mound in the area in question after two weeks of continuous rain is readily understandable. I have pointed out that the entire area, to different degrees, was likely to have become muddy and soft. If a person stood on a particularly soft patch (even if it were grassed), their weight would push the soil downwards, and this in turn would be likely to displace other muddy soil and cause the patch on which the person was standing, and other patches in the immediate vicinity, to move. The surface of the mound was likely to have been generally unstable.

37    From Mr Costa’s evidence it seems that it had not rained on the mound in significant quantities until the two weeks prior to the accident. If that is correct, the stability of the mound in excessively wet and rainy conditions had not previously been tested. However, the fact that the mound would have to endure torrential rains was well known. The very reason that the swale was constructed was to combat the effect of torrential rains.

38    Within 48 hours of the respondent’s fall, the appellant caused work to be commenced on the construction of a bridge over the swale near the area where the respondent fell. The bridge was thereafter completed and the swale was covered in concrete. These measures, in my view, are an acknowledgment by the appellant of the danger that had been constituted by the earthen swale and the mound.

39    Mr Costa had mowed the mound on two occasions between October and December 1996. He left the school at the end of the year and his successor was appointed in January 1997. The mound must have been noticed by the new principal. It was a prominent feature in the school landscape, it was visible to all, and its condition was patently obvious. The school authorities (and, hence, the appellant) must be taken to have known of it.

40    The appellant also knew that it had been raining continuously for two weeks. From the prior condition of the mound, the appellant should have known that the area where the respondent fell would have become muddy and unstable in the manner I have described.

41    As I have mentioned, Mr Costa had assisted the respondent in having a gate installed in her back fence for the very purpose of allowing her to walk through that particular area to go to the school. She had taken advantage of the gate and had used that route for many years. She was a well-known personality at the school. The appellant must have known before the accident that the area on the mound where the respondent fell was the area that she traversed regularly on her way to school.

42    It follows that the appellant must have known that there was a significant risk that the respondent would walk over the mound in an area that was likely to be unsafe after heavy rains. The risk of harm to the respondent and, indeed, to any person in such circumstances, was obvious, and the appellant knew or should have known this.

43    Does it necessarily follow that the appellant was required to take appropriate measures to prevent risk of injury to the respondent (or, indeed, any person walking on the mound)? This depends on what has been variously described as the “measure” or “scope” or “content” of the duty of care: see Morgan v Sherton Pty Limited (1999) 46 NSWLR 141 per Sheller JA (at 145).

44    The starting point in this inquiry is the application of the principles set out by Mason J in the well-known passage in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 to 48:

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

45    The “other relevant factors” are infinite in number. Some are mentioned in the following passage from the judgment of Kirby J in Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 (at 478):

“The ordinary formulation of the common law is that a body such as the Commission must take reasonable care to avoid foreseeable risks of injury to persons entering an area such as the reserve, including the cliffs, as of common right. However, that expression of a duty must be elaborated if it is to be of any practical guidance. The entrant is only entitled to expect a measure of care appropriate to the nature of the land or premises entered and to the relationship which exists between the entrant and the occupier. The measure of the care required will take into account the different ages, capacities, sobriety and advertence of the entrants. While account must be taken of the possibility of inadvertence or negligent conduct on the part of entrants, the occupier is generally entitled to assume that most entrants will take reasonable care for their own safety”.

46    Plainly, factors such as the magnitude of the risk, its degree of probability (or remoteness), and the possibility of inadvertence or negligent conduct on the part of entrants, are important in determining the scope of the duty of care. Others which may be relevant are the obviousness of the risk, and the circumstances under which the entrant engages in conduct that attracts the risk.

47    Where the entrant deliberately and for pleasure engages in hazardous recreational activities where the risks are obvious, the scope of the duty of care may be limited indeed: Agar v Hyde (2000) 74 ALJR 1219 (participation in a football game), Prast v Town of Cottesloe (2000) 22 WAR 474 (body-surfing in the ocean), Mountain Cattlemen’s Association ofVictoria Inc v Barron [1998] 3 VR 302 (leading a horse over small and slippery rocks), Secretary to the Department of Natural Resources and Energy v Harper [2000] 1 VR 133 (visiting a forest reserve where there was an obvious danger of falling trees in high winds).

48    The scope of the duty may also be particularly limited where the risks materialise because of wayward or aberrant or unexpected conduct on the part of the entrant: Romeo v Conservation Commission of the Northern Territory (walking at night at the top of an unfenced cliff edge), Phillis v Daly (1988) 15 NSWLR 65 (stepping onto a large log), Morgan v Sherton Pty Limited (jumping over a garden bed while returning to a parked car).

49    There is, however, far less reason to limit the scope of the duty where the entrant enters the property in an expected manner for an expected purpose and performs a mundane activity which is ordinarily without risk, but which has become obviously dangerous because of singular circumstances and which is inconvenient for the entrant to avoid. In such circumstances, human nature being what it is, depending on the nature, extent and likelihood of the risk and the degree of inconvenience involved, it may not be unexpected that the entrant will fail to take ordinary care for his or her own safety. Aganst this background, the scope of the duty of the occupier is more likely to include the duty to take care in regard to risks “arising from an entrant’s failure to exercise reasonable care for his or her own safety” (per Brennan J in Romeo at 445) and the occupier must have particular regard to “the possibility of inadvertence or negligent conduct on the part of entrants” (per Kirby J in the same case at 478).

50    In this case the respondent fell while walking in her usual way, taking her every day path from her house to her place of work, a path which to the appellant’s knowledge she had taken for several years.

51    In cross-examination it was put to the respondent that it would have been apparent to her as she walked to the swale that it was “quite wet” and she agreed. The next question was that she would have known from her “common knowledge of experience” that it would have been “naturally slippery” and she agreed with that, too. The point, however, is that the cross-examiner (in my view, rightly) assumed that the respondent would have first applied her mind to the condition of the mound as she walked towards it, and not before.

52    True it is that the respondent would have known that it had been raining for two weeks, but there was no reason for her to have thought about the condition of the mound until she was able to observe how it had been affected by the rain, and it was not suggested to her that she should have done so. The position of the respondent in this respect is to be contrasted with that of the appellant whose property was involved and who was charged with a duty of care for the safety of entrants generally.

53    It is probable that the respondent decided, probably sub-consciously, on the spur of the moment, to cross the mound. It was of course open to her to retrace her steps and take the longer and safer route to the school. For the sake of convenience, and to avoid walking an extra few hundred metres, she pressed on. While her conduct, in my view, was in itself careless, it could not be regarded as being unexpected. It was readily foreseeable that a person in the respondent’s position might take the risk and cross the mound.

54    In my opinion, the risk of a fall in the circumstances that obtained was not so remote that “a reasonable man, careful of the safety of his neighbour, would think it right to neglect it” (Overseas Tank Ship (UK) Limited v The Miller Steamship Company Pty Limited [1967] 1 AC 617 at 643, referred to by Kirby J in Romeo at 480).

55    Accordingly, in my view, the appellant should have taken reasonable steps to guard against the possibility of injury resulting from persons in general and the respondent in particular from walking across the mound after a severe bout of wet weather.

56    Preventative steps were easy and cheap. A rope barrier would have prevented the accident. Of course, the appellant could have constructed a bridge, as it did immediately after the respondent’s fall, but that would not have been essential. Roping off the area would have been sufficient.

57    In the circumstances, it is not necessary for me to deal with the assertion that the appellant should have placed a warning sign at the mound which, according to Mr Walmsley SC, senior counsel for the respondent, she would have obeyed.

58    Mr Taylor pointed to several matters of detail in the judgment of Delaney DCJ where he submitted his Honour had erred. There is force in many of the submissions so made, but even if those submissions were to be accepted, my conclusion that the appellant breached the duty of care it owed the respondent would not alter.

59    As regards contributory negligence, I am unable to agree with the findings of the learned judge. The basis of his decision that there was no contributory negligence was that the condition of the mound was not obvious. It seems that what his Honour had in mind was that it was not obvious that the turf would move when stepped on. In my opinion, however, as I have explained, the muddy nature of the entire mound in the area in question must have been patent and it must have been obvious that even the grassy patches were likely to be soft underfoot and likely to give way when stepped on.

60    In my view the respondent knew or should have known that the mound was muddy in several parts and hence there was a dangerous risk of instability in the ground where she walked. Her decision to proceed constituted contributory negligence on her part.

61    I do not regard the respondent’s negligence as serious as that of the appellant. I have pointed out that the appellant was charged with the overall duty of taking reasonable care for the safety of those persons who entered its property. It well knew that the respondent was likely to cross the mound at the point where she did. It knew or should have known that on the date of the accident the mound was in a dangerous condition. There were easy and cheap means available by which the accident could have been prevented. The appellant failed to take the necessary steps. The respondent, on the other hand, was guilty only of momentary carelessness in regard to her own safety. I would assess the degree of her contributory negligence at 25%. I consider therefore that she is entitled to 75% of the damages that she suffered.

62    I now turn to the challenges against the assessment of damages. The heads of damage that are challenged are loss of past earning capacity, loss of future earning capacity and past and future domestic assistance.

63    In regard to the first two heads Delaney DCJ found that, “subject to a small degree, she has lost her pre-accident earning capacity and has little, if any residual capacity”. There was ample basis on the evidence for this finding and it cannot be criticised.

64    In regard to loss of past earning capacity, Delaney DCJ allowed the respondent $4,611 for lost wages for the 1997 year and a global sum of $50,000 from 1998 to the date of judgment on 10 May 2000.

65    His Honour calculated the loss for 1997 on the basis that the respondent would work part time at 8 hours per week and assessed the loss of capacity to earn in the past on the basis that but for the accident the respondent would have worked full time.

66    Mr Taylor correctly pointed out that his Honour appears to have omitted in his calculations the income tax that the respondent would have paid on her earnings in 1998 and in 1999 to the date of judgment. The amounts involved, however, are not particularly large and may, to a degree, have been taken into account when his Honour made his “global” assessment.

67    More important is Mr Taylor’s submission that the learned judge wrongly based his assessment on the fact that from 1998 to the date of the trial the respondent would have worked full time.

68    By the time of the accident the respondent had never worked full time. In 1994, over the full 40 week school year, she had worked 7.88 hours per week, in 1995 she had worked 6.55 hours per week and 1996 she had worked 7.35 hours per week. It was not suggested that she had worked longer than eight hours per week before 1994.

69    In her evidence in chief the respondent said that before the accident she had hoped to acquire the skills to obtain full time work. She said, however, that it was “more like 1999 perhaps” when she intended to obtain full time employment (that is, as opposed to 1998). She was asked whether it was “realistic in the area in which you lived to get full time employment in the area in which you worked”. She replied “No, not really”. She said that in that area teachers involved with children with special needs were only employed on a full time basis at one other school nearby. She said that she could not say whether she might have looked beyond the school system “in the area of children with special needs” for work.

70    In the light of the respondent’s evidence, I accept that Delaney DCJ erred in assessing loss of past economic capacity on the basis that the respondent would have worked full time from 1998 to the date of judgment. On the basis that the respondent would have worked eight hours per week during the relevant period, and taking into account the contingency that she may have been able to work longer hours, I consider that she should be awarded $17,500 for loss of earning capacity to 10 May 2000.

71    Delaney DCJ awarded the respondent $150,000 for loss of future earning capacity. The basis of this calculation was the assumption that the respondent would earn $350 per week as from the date of judgment. On this basis the learned Judge arrived at a lump sum figure of $197,155 which he reduced by 25% for vicissitudes and other contingencies, thereby arriving at $150,000.

72    It is not clear on what basis the learned judge considered $350 per week to be the appropriate notional income, but it does seem that he used as his starting point $547.58 per week which is the income that the respondent would have earned had she worked full time. He then, apparently, reduced the $547.58 per week to $350 per week to allow for contingencies. The 25% reduction he later applied was a further reduction for contingencies.

73    As Mr Taylor pointed out, the sum of $547.58 per week was a gross weekly wage but his Honour wrongly assumed that it was nett of tax. The nett weekly wage, had the respondent worked full time, would have been about $450 per week.

74    Had the respondent not worked full time but worked 8 hours per week for the rest of her working life then, using the appropriate multiplier, her loss would be about $55,000.

75    The determination of the loss of future earning capacity requires an assessment of the chance of the respondent, but for the accident, working full time in the future. Mr Walmsley submitted that there would have been a very strong likelihood of that occurring, whereas Mr Taylor disputed this and submitted that allowance should be made for the contingency that the respondent might not have worked at all.

76    In my view, immediately prior to the accident, the prospects of the respondent working full time were fairly substantial. By then her two children had left school and had established themselves. She had the time to qualify herself further. There was no obstacle to her working full time were she to obtain an appropriate position. She was obviously a capable person who was highly regarded at the school and who was already qualified and worked well in a specialised area. True it is that there were difficulties in obtaining an appropriate job, and the vicissitudes of life might have been such that she might not have been able to work full time in any event. But even having due regard to these contingencies, a significant allowance must be made for the chance that the respondent would have worked full time until aged 65. Even on this basis, however, the award made by Delaney DCJ in this respect is, with respect, far too high.

77    Taking into account all relevant factors in this respect I consider that the sum of $110,000 would be an appropriate award for loss of future earning capacity. I consider that his Honour erred in awarding $150,000 under this head.

78    I now turn to the appeal against the awards made for the reasonable cost of domestic assistance.

79    The learned judge awarded $36,900 for the reasonable cost of domestic assistance for the period from 20 October 1997 to the date of judgment. He awarded $169,472 for the reasonable cost of future domestic assistance.

80    The challenge to his Honour’s decisions in regard to these heads was based on the proposition that the hours of domestic assistance that the respondent needed and would need, as found by his Honour, were excessive. In my view this submission can be dealt with shortly.

81    His Honour’s findings as to the number of hours in question were based on the evidence of the respondent’s husband and that of a medical practitioner, Dr Buckley. The respondent’s husband was not cross-examined in regard to his testimony as to the hours of assistance he had provided the respondent and the hours of assistance that she reasonably would need. Dr Buckley’s report was put into evidence by consent and the appellant did not seek to cross-examine him. The respondent was not cross-examined at all in regard to these matters. In the circumstances, in my view, his Honour was entitled to make the findings that he did and they are not susceptible to criticism on appeal.

82    In the result I consider that the damages as assessed by his Honour should be reduced as follows:

(a) Loss of past economic capacity from $54,611.00 to $17,500.00 (a deduction of $37,111.00).

(b) Loss of future earning capacity from $150,000.00 to $110,000.00 (a deduction of $40,000.00).

83    Therefore, the total damages awarded of $555,748.00 should be reduced by $77,111.00 to $478,637.00.

84    In the circumstances, I would propose the following orders:

(1) The appeal be upheld and the orders made by Delaney DCJ be set aside.

(2) There be a verdict and judgment for the respondent in the sum of $358,977.75 (being 75% of $478,637.00)

(3) The appellant pay the respondent’s costs of the trial and the respondent pay the appellant’s costs of the appeal.

(4) The respondent have a certificate under the Suitors’ Fund Act.

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