Manhattan Homes Pty Limited v Burnett

1. [1]

   LEEMING JA: I agree with Harrison CJ at CL, but wish to add the following on grounds 8(a) and 8(b) concerning contributory negligence, in relation to which we are departing from the reasons of the primary judge.

2. [2]

   Parts of the reasoning of the primary judge concerning contributory negligence are expressed to proceed on the basis that the issue was whether Mr Burnett was inadvertent as opposed to negligent. That may be seen in [196] (“his case was that he had only been inadvertent and not negligent”) and the ultimate conclusion at [214] of not being satisfied “that the evidence establishes that Mr Burnett’s fall was the result of his own contributory negligence rather than such inadvertence”. Those formulations of the issue do not reflect the law. As much may be seen from the leading judgment of Gibbs J in Commissioner of Railways (Qld) v Ruprecht (1979) 142 CLR 563 at 567-568: [1979] HCA 37 who wrote “Counsel for the Commissioner submitted that the fact that the respondent had acted inadvertently or thoughtlessly did not necessarily mean that he had not been negligent, and that of course is correct”. It is as well to return to the decision cited by Gibbs J, Sungravure Pty Ltd v Meani (1964) 110 CLR 24; [1964] HCA 16. That decision was an appeal from a pre-Judicature action in the Supreme Court of New South Wales conducted by Jacobs P and a jury, before contributory negligence as an absolute defence had been abolished by statute. Jacobs P had considered that there was evidence of contributory negligence, and left that issue to the jury on one of the two counts that went to trial. The jury returned a verdict for the employer. However, the Full Court allowed an appeal, quashed the verdict and ordered a new trial on the basis that there was no evidence on which a finding of contributory negligence could be made and thus the jury had been misdirected. But the High Court allowed the employer’s further appeal, with the result that the jury’s verdict was restored. The error made by the Full Court was identified by Kitto, Menzies and Owen JJ at 33:

3. [3]

   (The same issue did not arise on the second count, because the Statutory Duties (Contributory Negligence) Act 1945 (NSW) abrogated the common law defence for actions for damages founded on breach of a statutory duty.)

4. [4]

   Windeyer J wrote to the same effect, criticising the distinction for which counsel contended between “thoughtlessness, inadvertence, forgetfulness and negligence”. Windeyer J recorded that counsel had said that “the first three on the one hand, and negligence on the other, were mutually exclusive concepts”: at 37. Windeyer J rejected the distinction. In part it is because of a category error: “whereas the law knows what is meant by negligence, it has no precise definition of inadvertence which would make it a distinct legal concept”. His Honour observed that the states of mind in the case of both negligence and heedlessness were identical: “in either case the party is inadvertent”.

5. [5]

   Sometimes this test is encapsulated in the distinction between mere inadvertence and contributory negligence, being the test authoritatively stated in McLean v Tedman (1984) 155 CLR 306 at 315; [1984] HCA 60, and which her Honour mentioned at [199]. It is to be borne in mind that the word “mere” does a deal of work in that encapsulation. It is necessary when applying that test to bear in mind that inadvertent conduct by a plaintiff may or may not amount to contributory negligence, and the real question is as Mason J put the issue at 573 in Ruprecht, whether Mr Burnett’s omission was incompatible with the conduct of a reasonable and prudent man. The issue is unavoidably factual, and draws upon the proposition that especially in the case of tedious repetitive work, inadvertence is foreseeable. The primary judge was with respect correct to note at [201] that:

6. [6]

   However, as Harrison CJ at CL explains, absent from her Honour’s reasoning is an explanation for why Mr Burnett’s undoubted inadvertence was excusable so as to render contributory negligence inapplicable. I respectfully agree with his Honour. This Court should intervene.

7. [7]

   HARRISON CJ AT CL: Gary Burnett was seriously injured on 27 February 2019 while working on a building site at Greenhills Beach where Manhattan Homes Pty Ltd was constructing a two storey dwelling. On that day, Mr Burnett walked upon unsecured boards on the second level of the house which partly covered a void for the stairwell when he fell to the floor below. He sued Manhattan claiming damages for negligence. At the time of the accident, Mr Burnett was employed by Griswold’s Outdoor Xmas Pty Ltd, a company of which he was the sole director and shareholder. Manhattan and Griswold’s filed cross-claims against each other seeking contribution or indemnity as joint tortfeasors pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946.

8. [8]

   On 24 November 2023, after a seven day hearing before Schmidt AJ, her Honour published her reasons for judgment: Burnett v Manhattan Homes Pty Ltd [2023] NSWSC 1431. The Court made orders giving effect to the judgment on 8 February 2024 in these relevant terms:

   1. (1)

      Judgment for Mr Burnett against Manhattan for $2,234,467.73.

   2. (2)

      Manhattan to pay Mr Burnett’s costs.

   3. (3)

      Judgment for Manhattan against Griswold’s on the first cross-claim for $133,458.60.

   4. (4)

      Griswold’s to pay Manhattan’s costs of the first cross-claim.

   5. (5)

      Judgment for Griswold’s against Manhattan on the second cross-claim for $1,256,412.43.

   6. (6)

      Manhattan to pay Griswold’s costs of the second cross-claim.

9. [9]

   Orders (3) to (6) were based upon her Honour’s findings that Manhattan and Griswold’s were liable for Mr Burnett’s loss and damage respectively in the proportions 80:20. Her Honour concluded that Mr Burnett had not contributed to his loss by reason of his own negligence.

10. [10]

    Manhattan now appeals to this Court upon the following grounds:

11. [11]

    Mr Burnett cross-appealed challenging her Honour’s award for non-economic loss and domestic assistance. His challenge to her Honour’s award for future economic loss was not pressed.

Grounds 8A and 8B

1. [12]

   Manhattan was the principal contractor of a residential construction site in Shorebird Parade, Greenhills Beach. Manhattan had subcontracted some work to Griswold’s. During construction, the staircase void was initially protected by floor sheeting supported by steel joists installed by Safeworx Group Pty Ltd. The void protection had been installed when the frames of the dwelling were erected.

2. [13]

   Mr Burnett gave evidence that at the time of his accident, a staircase had been built to provide access to the first floor but there was no balustrade either on the staircase itself or around the first floor opening. The void at the top of the staircase was in part covered with flooring sheets.

3. [14]

   At the time of the accident, Mr Burnett was carrying tiles from the upstairs bathroom with the intention of taking them downstairs. He had been undertaking rectification work in that bathroom where tiles had to be removed. Mr Burnett had made two or three trips carrying tiles in this way before the accident occurred. As Mr Burnett stepped onto the temporary flooring over the void, it collapsed and he fell through to the ground floor.

4. [15]

   Mr Burnett said that he had been on site the day before as well as some time before that. He said that he did not know when the stairs were installed. His recollection was that they had not been there when he was on site previously.

5. [16]

   Paragraph 18 of Mr Burnett’s first evidentiary statement was in these relevant terms:

6. [17]

   Mr Burnett was cross-examined. He was shown a photograph of the site depicting the void viewed from the first floor. He gave this evidence:

7. [18]

   Mr Burnett’s cross-examination continued a little later as follows:

Her Honour’s conclusions – contributory negligence

1. [19]

   Manhattan contended that having regard to Mr Burnett’s evidence, her Honour was in error in forming the view that he did not contribute to his own loss and that he was guilty of no more than inadvertence. In order to understand that submission, her Honour’s reasons require consideration. They are as follows:

Contributory negligence - consideration

1. [20]

   It is clear from the evidence, and Mr Burnett accepted, that he knew and was aware of the physical conditions of the site that caused his fall before it occurred. Her Honour referred to that concession at [10](1), noting that on the day of the accident, when he used the stairs before his fall, Mr Burnett saw that the steel bars supporting the boards which covered the void near the stairs had been removed. He knew that the boards were no longer supported. His evidence extracted earlier at [12] and [13] makes this clear. Accordingly, the assessment of whether he should be found to have failed to take proper care for his own safety falls to be determined not by reference merely to what he ought to have known but having regard to what he knew in fact. This is not, in the parlance of the old law in relation to occupiers’ liability, a case of him having been confronted with an unusual danger or a hidden trap. Mr Burnett was fully conversant and acquainted with the state of the floor boards and their lack of support.

2. [21]

   Accordingly, in expressing her view at [207] that she was “not satisfied, on the balance of probabilities, that his fall was the result of his own negligence”, I take her Honour to have concluded that that was so only because, as she found at [208], it was on the evidence much more likely that Mr Burnett’s fall was the result of his inadvertence. This was because, as her Honour concluded, Mr Burnett was engrossed in or preoccupied by the task he had been given to do, with the result that he did not bear in mind the unsupported boards near the stairs. It seems clear that her Honour’s reasoning proceeds on the basis that, but for his inadvertence, Mr Burnett would have been guilty to some extent of negligently contributing to his own loss.

3. [22]

   Manhattan maintained in those circumstances that her Honour’s analysis of Mr Burnett’s inadvertence as an answer to contributory negligence was erroneous. Manhattan’s submission was in these terms:

4. [23]

   It may be accepted that the risk was obvious, particularly in the sense that Mr Burnett knew of the unsupported state of the floorboards, and that the possible consequences of falling from the first floor meant that the risk was also serious. He was fully aware of the void, the height, the unsupported boards and the absence of a banister or temporary guardrail: Council for the City of Greater Taree v Wells [2010] NSWCA 147 at [107]-[108]. The question is what a reasonable person in Mr Burnett’s position should have done to protect himself or herself against the risk of harm of which he was aware.

5. [24]

   Manhattan submitted that the facts and circumstances of this case were analogous to those considered in Commissioner for Railways (Qld) v Ruprecht (1979) 142 CLR 563; [1979] HCA 37 in which Mason J observed at 573:

6. [25]

   Mason J’s comments in Ruprecht were referred to with approval by Meagher JA in Waco Kwikform Ltd v Perigo [2014] NSWCA 140 at [81]-[82]:

7. [26]

   Mason J in Ruprecht also referred to Sungravure saying this at 571-2:

8. [27]

   This is therefore the context in which Mr Burnett’s inadvertence or intention come to be considered. However, in advance of that inquiry, Manhattan submitted that the only evidence that could have amounted to inadvertence, inattention or misjudgment was Mr Burnett’s statement that “I had what I needed to go and get to do the job, so I had other thoughts on my mind”. Her Honour’s reference at [201] to “inattention bred of familiarity and repetition, the urgency of a task, a person’s preoccupation with the matter in hand and other prevailing conditions” incorporates the classic indicia of inadvertence but in Manhattan’s submission the reference was inapplicable to Mr Burnett as there is no material to support it. For example, Mr Burnett gave no evidence of what his other thoughts were or that he was working under time pressures, was confused, suffered from the effects of fatigue or financial distractions or that he did not appreciate the danger. In these circumstances, Manhattan contended that her Honour was in error in finding that Mr Burnett had established that he was distracted by his task and in finding as a result that he had not negligently contributed to his own loss.

9. [28]

   Mr Burnett submitted that his awareness of the missing support for the boards near the stairs, which awareness he acquired earlier in the day when ascending them, “was not on his mind” at the time of his fall. Although written submissions filed in this Court on Mr Burnett’s behalf also suggest that he only found out when he fell that the steel support for the boards had been removed, that submission is contrary to the evidence and cannot be accepted. Indeed, the very notion of inadvertence upon which her Honour proceeded necessarily assumes an anterior failure to take proper care for his own safety which is otherwise excusable. That notional failure could only have been based, in the particular circumstances of this case, upon his knowledge of the missing steel supports.

10. [29]

    Mr Sheldon of senior counsel for Mr Burnett embraced her Honour’s conclusion at [208] that it was “much more likely…that his fall was the result of [his] inadvertence, as he was engrossed or preoccupied with the task he had been given to do, as he approached the stairs carrying his third load of tiles, with the result that he did not bear in mind as he needed to the unsupported boards near the stairs”. Mr Burnett’s response to Manhattan’s contention that merely having “other thoughts in [his] mind” was inadequate to establish relevant inadvertence was to contend that there was no attempt in cross-examination of him to elicit what those other thoughts were. However, the burden of establishing those matters rested with Mr Burnett.

11. [30]

    Mr Burnett’s task of removing tiles from the upstairs bathroom in order to take them to the ground floor of the premises was neither technically complicated nor conceptually difficult. It was also not repetitive in any relevant sense, physically taxing or performed in a noisy or distracting environment. In my opinion, the evidence does not support a finding that the nature of the work that Mr Burnett was required to perform was likely to have diverted his attention from his surroundings and Mr Burnett’s evidence does not go as far as to establish or even suggest that the “other thoughts” on his mind were related to, or a function of, the task itself. In my view, her Honour’s conclusion that Mr Burnett’s fall was not caused by any fault on his part by reason of his exculpatory inadvertence or inattention cannot be supported by the evidence.

12. [31]

    Mr Burnett also submitted that the difficulty with paragraph 17 of Manhattan’s submissions is that the hypothetical “inadvertent or thoughtless” act to which the High Court was referring in Sungravure did not there involve the plaintiff exposing himself to a risk of harm from a defect that was not observable at the time the accident occurred. In that respect, Mr Burnett sought in effect to argue that the physical conditions and surroundings on the first floor, from which he fell, did not serve to remind him of the unsupported nature of the boards which he stepped on, and which he had earlier observed from below. In other words, any allegation that he failed as a reasonable person to take proper care for his own safety had to take account of the fact that the relevant defect was not observable from where he fell. In considering whether or not Mr Burnet could demonstrate that he could be excused for not adverting to the danger at the time of the accident, and that his failure at the time to take reasonable care for his own safety was therefore explicable, the absence of contemporaneous physical cues alerting him to the danger is relied upon by Mr Burnett as an important consideration.

13. [32]

    In my opinion, the absence of cues on the first floor says nothing about whether Mr Burnett can be relieved of the consequences of his own negligence by reason of inadvertence, inattention or misjudgment. Once it is accepted, as her Honour accepted, that Mr Burnett knew of the danger created by the missing steel supports, he can only avoid the consequences of failing to utilise that knowledge if he was otherwise distracted by long hours and fatigue or by failing to give due regard to what has been referred to as “the slackening of attention which naturally comes from constant repetition of the same operation, to the noise and confusion in which the man works, to his pre-occupation in what he is actually doing at the cost perhaps of some inattention to his own safety”: Caswell v Powell Duffryn Associated Collieries Ltd [1940] A.C. 152 at 178-179. The absence of cues to remind Mr Burnett of the danger would be relevant to the assessment of the extent to which, when compared with Manhattan, he contributed to his own harm, but not to the question of whether he could escape entirely the consequences of failing to take proper care for his own safety in the first place.

14. [33]

    However, in my opinion, the relevance of the total absence of local cues physically adjacent to the unsupported boards is a powerful indicator of where the respective burdens of Manhattan’s negligence and Mr Burnett’s contributory negligence should lie. Mr Burnett did not do something foolhardy in the sense that he walked on the boards with a fresh and vivid memory that they were unsupported but nevertheless took the chance that it was safe to do so. Mr Burnett’s own negligence was that he failed to employ his recent knowledge of the risk when he did so. His fault was that he failed to heed what he knew. Manhattan, by way of contrast, could well have refreshed his recollection or reminded him of what he knew by a warning sign or a physical barrier on the first floor. I consider that Mr Burnett negligently contributed to his own loss and damage. Compared to the negligent failings of Manhattan which have been identified by her Honour and which are not challenged in this appeal, Mr Burnett’s contribution should be assessed at 20%.

Grounds 8C and 8D

1. [34]

   Manhattan was the builder and occupier of the site. Griswold’s was Mr Burnett’s employer, even though he was the sole director of that company. Her Honour found that both were liable in negligence for Mr Burnett’s loss and damage. She reasoned as follows:

2. [35]

   Her Honour’s conclusions concerning the respective proportions in which each of Manhattan and Griswold’s should contribute to Mr Burnett’s damages were as follows:

3. [36]

   Manhattan contested this finding and submitted that it was not reasonably open when the following circumstances are taken into account.

4. [37]

   There was no complexity about the task of conveying broken tiles from the upper level to the lower level of the building. Manhattan had no particular specialist knowledge, compared to Mr Burnett in his capacity as director of Griswold’s, of the various methods which could be used to carry out that task, which were identified in the pleadings and the evidence as using the existing ladder, or a bucket and rope or carefully using the stairs. Griswold’s as Mr Burnett’s employer was in as good a position as the non-employer to identify the risk of harm and take precautions against that risk. The open void was obvious and the unsupported boards were known to Griswold’s.

5. [38]

   Installing a simple temporary handrail may have been within the provenance of the occupier builder but there is no suggestion in the evidence that such precaution would have been refused by Manhattan if requested by Griswold’s. The installation immediately following the incident supports that inference.

6. [39]

   In all the circumstances, Manhattan submitted that even if the relative causative potency of the employer and the non-employer could be characterised as equal, the more stringent non-delegable duty owed by an employer supports a finding of Griswold’s greater responsibility rendering it liable to bear more than 50% of the loss on apportionment.

7. [40]

   Mr Burnett submitted that Manhattan should bear the prime responsibility for the accident in accordance with the factual findings made by her Honour. These included that Manhattan was the occupier with control of the site and was responsible for the unsafe state of the stairway void that caused him to fall. The installation of temporary barriers or warnings was entirely within Manhattan’s control and responsibility, especially considering the obvious risk that existed. Manhattan had also made continuous use of the unfinished stairway in the course of its construction of the dwelling, in contrast to Griswold’s whose sole experience with the hazard was limited to the day of Mr Burnett’s accident and his single observation of it when ascending the stairs on the one occasion that he did so.

8. [41]

   Mr Burnett submitted that her Honour’s approach exposes “a clear pathway of reasoning” leading to her conclusion on apportionment. He contended that a comparison between the multiple failures of Manhattan and the more limited involvement of Griswold’s corresponded with and highlighted the appropriateness of her Honour’s assessment.

9. [42]

   Griswold’s made submissions to a similar effect. It contended that her Honour has not been shown to have misapprehended the facts or proceeded upon a wrong principle and that her findings ought not lightly be disturbed: Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34. Kirby J said this at [119]:

Contribution – consideration

1. [43]

   Manhattan was the principal contractor and in occupation and control of the site. It was in that capacity principally responsible for construction of the residence and for the safety of all personnel engaged by it for that purpose either as its employees or as independent contractors. Manhattan was also presumably responsible for who came onto the site and for the allocation, if not the supervision, of work that had to be performed. Although it would not appear to have been a complex or complicated job, Manhattan would also presumably have been in charge of the scheduling of works and the interaction between, and programming of, various trades.

2. [44]

   Griswold’s by comparison, as far as the evidence reveals, came onto the site for the first time on the day that Mr Burnett was injured. Its knowledge and appreciation of the risk was informed by Mr Burnett’s observation of the unsupported boards as he ascended the stairs. The hazardous state of the unsupported boards was only indirectly or incidentally related to the task that Mr Burnett was required to perform as opposed, for example, to some hazard that was inherent in the performance of the actual work of stripping the tiles in the bathroom. Responsibility for maintaining a safe means of access to and from the location at which Mr Burnett was required to work would in my view fall squarely upon Manhattan as the occupier of the site as opposed to Griswold’s whose responsibilities were temporally and physically much more limited.

3. [45]

   I am unable to agree that her Honour’s assessment of the respective contributions is erroneous. It is evident that her Honour’s detailed and careful analysis of the facts takes account of all matters that were relevant to an assessment of the respective potency of the alleged failings of Manhattan and Griswold’s. Having regard to the authorities concerning the need to point to some misapprehension of the facts or the application of wrong principle before a judicial assessment of what is just and equitable as between tortfeasors will be altered, there is no demonstrated basis upon which this Court should interfere with her Honour’s conclusions.

4. [46]

   Her Honour concluded that Mr Burnett had no residual earning capacity:

5. [47]

   Manhattan submitted that an allowance of 25% ought to be made to take into account Mr Burnett’s residual earning capacity. Manhattan contended that her Honour’s finding that he had no residual earning capacity was against the weight of evidence, in particular the expert evidence of Dr Low and Professor Bright whose views were to the contrary. In particular, Manhattan maintained that the evidence supported a finding that Mr Burnett was in fact able to undertake his pre-accident occupation of installing Christmas lights through his company Griswold’s.

6. [48]

   In this last respect, Manhattan referred to Mr Burnett’s own evidence in cross-examination, in aid of the submission that any difficulties that he might face seeking employment on the open market could be avoided by a return to his pre-accident work installing Christmas tree lights with Griswold’s. Mr Burnett had a demonstrated ability to carry out the supervisory nature of the tasks involved and could therefore avoid working at heights by delegating such tasks to one of Griswold’s employees previously used by him to effect these installations. Mr Burnett’s evidence in cross-examination on this issue included the following:

7. [49]

   Manhattan also contended that there is no evidentiary basis for concluding that Mr Burnett’s prospects of obtaining suitable work were reduced or eliminated in the sense that he would be comparatively uncompetitive with able bodied applicants for the same jobs.

8. [50]

   Manhattan bore the onus of establishing not only that Mr Burnett had a hypothetical earning capacity but that he had an actual earning capacity: Mead v Kerney [2012] NSWCA 215; Kallouf v Middis [2008] NSWCA 61. For example, in Mead, Macfarlan JA said this:

9. [51]

   In the present case, Manhattan qualified Dr David Maxwell and Mr Burnett qualified Dr Peter Giblin, in each case an orthopaedic specialist, who met in conclave on 18 April 2023. Following the production of their joint report, the doctors gave concurrent evidence at the trial. Although their evidence was extensive, it is instructive to include at least the following extracts:

10. [52]

    It is clear that her Honour was faced with opposing views from well-regarded specialists who had access to the same information, including the surveillance material. Her Honour was not obliged to accept the evidence or opinion of one of them to the exclusion of the other in the absence of some compelling factor. I do not consider that the weight of the orthopaedic evidence necessarily demanded acceptance of Dr Maxwell over Dr Giblin as Manhattan asserts. Her Honour was also in a position to see and hear Mr Burnett over a number of days, providing an advantage that cannot and should not be lightly discounted in this Court.

11. [53]

    Apart from this orthopaedic contest, Mr Burnett and Manhattan also respectively marshalled Dr Sean Low, an occupational physician and Professor James Bright, a psychologist specialising in vocational assessments, to give evidence before her Honour about Mr Burnett’s anticipated earning capacity in the light of his disputed physical abilities. Her Honour considered their evidence at some length. With respect to Dr Low, her Honour said this:

12. [54]

    Her Honor considered Professor Bright’s evidence in the following paragraphs;

13. [55]

    It is reasonably clear that the evidence about Mr Burnett’s earning capacity, both with respect to his physical abilities to perform suitable work having regard to his injuries in the first place and the likelihood that he could secure suitable work when in competition with able bodied competitors in the second place was not all one way. Manhattan’s ninth ground of appeal proceeds on the basis that her Honour’s conclusion that Mr Burnett had no capacity for work was erroneous to the extent that it failed properly or adequately to take account of a preponderance of evidence to the contrary.

14. [56]

    Having regard to the evidence and in the light of her Honour’s detailed analysis, I am unable to accept that Manhattan has established the proposition for which it contends. Her Honour’s task was not concerned with a simple binary choice between the evidence of Professor Bright on the one hand and the evidence of Dr Low on the other. For example, the matters upon which Manhattan particularly sought to rely in this regard were not in my opinion particularly compelling. They were that Dr Low:

15. [57]

    In addition, Mr Burnett conceded that he could do light gardening work using a whipper snipper, could unhitch and manoeuvre a trailer, climb a ladder, remove Christmas tree lights and that his anxiety was not enough to overcome his desire to place Christmas decorations on his roof.

16. [58]

    Moreover, Professor Bright’s evidence indicated that in his opinion, Mr Burnett would not struggle with, and would be able to get, a job as an order clerk, with the requirements of which job Professor Bright was experienced. Professor Bright also considered that it was not necessarily the case that an injured person will fail to secure or retain employment but that such a person may well thrive. He thought that Mr Burnett was capable of performing a range of jobs that he listed.

Earning capacity - consideration

1. [59]

   I do not accept that “the weight of evidence” commands a conclusion that Mr Burnett retained a residual earning capacity. There is certainly evidence that, despite his injuries, Mr Burnett could perform a range of physical tasks included among the duties which he would be required to perform in certain occupations. However, a miscellaneous collocation of activities such as climbing a ladder, hitching a trailer or using a whipper snipper do not inevitably translate into an exploitable capacity to secure income producing employment in an open labour market in competition with able bodied workers. The very fact that experts were in disagreement about both the extent of Mr Burnett’s physical limitations and the prospect that he could secure employment notwithstanding does not to my mind indicate that the weight of relevant evidence produces only one conclusion. Her Honour’s advantage in seeing and hearing Mr Burnett is again important in this context.

2. [60]

   Her Honour’s conclusions at [400] – [407] are supported by the evidence, were open to her in the circumstances and bear repeating:

3. [61]

   I do not consider that her Honour’s conclusion about Mr Burnett’s earning capacity is erroneous.

4. [62]

   Manhattan contends first that in awarding damages for Mr Burnett’s future care, her Honour included an element for commercial assistance when the evidence was that Mr Burnett was not inclined to engage commercial providers.

5. [63]

   Mr Burnett’s 20 January 2023 evidentiary statement dealt with his claim for domestic assistance in terms that included the following:

6. [64]

   Mr Burnett adhered to this evidence in cross-examination.

7. [65]

   Mr Burnett’s evidence about commercial help was limited to the following question and answer in cross-examination:

8. [66]

   Her Honour dealt with Mr Burnett’s claim for damages for future care as follows:

9. [67]

   Her Honour concluded that she should take account of the possibility that circumstances might change in the future with the result that domestic assistance from a commercial provider might be required: Miller v Galderisi [2009] NSWCA 353 at [19]. Manhattan contended that there is no evidence that Mr Burnett would engage commercial assistance in the future so that even if the possibility is “not entirely fanciful, … the chance of it occurring is slight”: Miller at [23].

10. [68]

    In my opinion, Manhattan’s emphasis on what it perceives to be, and what it characterises as, Mr Burnett’s apparently entrenched disinclination to employ commercial assistance providers is misplaced. At the time of giving his evidence, Mr Burnett’s wife was willing and able to perform the tasks that he described, and his preference was that she should do so. However, I do not understand his evidence either to infer or to insist that the prospect of commercial assistance would not or could never arise as a possibility in the future when his wife’s ability or agreement to continue with the work changed. Indeed, in accordance with authority, her Honour took account of that prospect, including that Mr Burnett and his wife may cease to be married. Her Honour described the possibilities of a change in the current domestic arrangements and the availability of assistance as neither fanciful nor slight.

11. [69]

    Mr Burnett’s calculations with respect to the cost of future domestic assistance were particularised in MFI 12 as follows:

12. [70]

    Manhattan submitted that in awarding $390,000 for future domestic assistance, it was not possible to determine how much of the award was based on the need for commercial assistance or indeed the basis for the award, save that it is at the low end of Mr Burnett’s claimed amount. Manhattan therefore submitted that the award of $390,000 should be reduced by 20% to “ameliorate this error alone”, thus reducing the award to $312,000. That submission appears to be a reference to [465] of her Honour’s judgment which is reproduced later in these reasons.

13. [71]

    In this Court, Mr Sexton of senior counsel for Manhattan made the following oral submission:

14. [72]

    Manhattan submitted that, but for his injuries, the gratuitous assistance being claimed by Mr Burnett would have been provided to him in any event by his wife so that the services were not therefore being provided as the result of any need arising from his injuries. On this basis, Manhattan submitted that the whole award for future domestic assistance cannot be sustained. Manhattan (presumably) relied upon s 15(2) of the Civil Liability Act 2002, which provides as follows:

15. [73]

    It should be noted that Mr Burnett married his current wife after the breakdown of his first marriage, some months after his fall. The following evidence that he gave, and which becomes important in the present context, must be understood having regard to that fact:

16. [74]

    As her Honour observed at [445], Manhattan relied upon this exchange to submit that consideration would have to be given to what domestic assistance Mr Burnett’s wife, Ms Sukwong, would have provided but for his accident.

17. [75]

    Having regard to this evidence, her Honour came to the following conclusions at [448]-[449]:

18. [76]

    Mr Burnett’s cross-appeal challenges her Honour’s finding at [449] as follows:

19. [77]

    In support of this cross-appeal ground, Mr Burnett submitted that the words “if he had not been injured” do not appear anywhere in the question about what housework Mr Burnett’s wife would have done but for the accident and he was not asked a question in the terms summarised by her Honour at [448].

20. [78]

    For completeness I note that Manhattan’s written response to ground 2 of Mr Burnett’s cross-appeal was in these terms:

21. [79]

    I take that submission to be a reference to her Honour’s conclusion in [449] that, taking account of what I have assumed was intended by her Honour to be a reference to s 15(2)(c), damages sought by Mr Burnett for past domestic assistance “cannot be made in the terms sought”. Manhattan specifically emphasised that her Honour concluded that Mr Burnett had not satisfied the onus he bore to establish that the services his wife provided in the past would not be (or would not have been) provided to him but for the injury.

22. [80]

    The position with respect to future domestic assistance is different. Paragraph [459] appears in that section of her Honour’s judgment headed “There must be damages for future care”. The prospect that Mr Burnett’s wife may be unable or unwilling to care for him in the future, was specifically adverted to by her Honour in that paragraph:

23. [81]

    Her Honour was not satisfied that Mr Burnett had overcome s 15(2)(c) with respect to past domestic assistance. However, informed by the uncertainties of predicting what might occur, her Honour took a different approach concerning whether Mr Burnett had satisfied his s 15(2)(c) onus for the future. She said this after referring to Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 in the previous paragraph:

24. [82]

    Her Honour’s conclusion with respect to future domestic assistance was as follows:

25. [83]

    At least for the purposes of these grounds of appeal, Manhattan does not take issue with the claim for 17.5 hours of assistance or the rates of $34 or $55 respectively. That being so, her Honour’s conclusion that Mr Burnett should receive $390,000 means that he was awarded approximately 61% of his total claim for future domestic assistance for the whole period at commercial rates. Her Honour’s assessment in terms took account of relevant future possibilities so that the sum of $390,000 was well within an acceptable range having regard to the evidence and the uncertainties. It is correct to say that her Honour’s calculations in arriving at the sum of $390,000 are not provided. However, it is reasonably apparent that in awarding damages for future domestic assistance, her Honour concluded that commercial rates should apply inasmuch as any domestic assistance provided by Mr Burnett’s wife in the future would not be compensable by reason of s 15(2)(c).

26. [84]

    Accordingly, Ground 11 should be rejected as her Honour’s conclusions proceed upon the basis that if gratuitous assistance was not available, Mr Burnett would be entitled to and would arrange commercial domestic assistance. Ground 12 should be rejected because her Honour’s award implicitly contains no amount for gratuitous attendant care services: her Honour’s reference at [465] to “the evidence of what commercial care now costs” makes this plain. Moreover, the absence of any reference in that paragraph to the cost of gratuitous services indicates that her Honour did not fail to take into account her conclusion that Mr Burnett had failed to satisfy the s 15(2)(c) onus of establishing that the assistance provided by Mr Burnett’s wife would only have been available if the accident had intervened.

27. [85]

    Manhattan also contended that her Honour erred by failing to reduce the award so as to take into account the need for such assistance caused by the frailties of old age: see Avopiling Limited v Bosevski [2018] NSWCA 146 at [135]; Metaxoulis v McDonalds Australia Limited [2015] NSWCA 95 at [81]. In Metaxoulis, the plaintiff had an existing injury. Mr Burnett does not.

28. [86]

    The calculation of damages for future domestic assistance specifically incorporated a discount of 15% for vicissitudes. In the absence of any evidence pointing to the likelihood of an accelerated or extended period of old age, it seems to me that the discount allowed was sufficient in this case to account for it and that no special or other discount was necessary.

29. [87]

    Although ground 14 is expressed in general terms, it was limited in this Court to a complaint about airfares. Part of Mr Burnett’s claim for out of pocket expenses included a claim for airfares to Thailand to accompany his wife who needed to visit her mother who lived there. Mr Burnett’s evidence was that in 2022 he travelled from Sydney to Bangkok in economy class. Her Honour accepted his calculations in relations to his claim for airfares, including a claim to be upgraded to business class, and awarded the total sum of $162,394. It is this amount that is challenged under this ground of appeal.

30. [88]

    Manhattan submitted that this claim fails at the threshold, whether for airfares in general or for business class tickets in particular. This is for the reason that there is no evidence to support the need for Mr Burnett to accompany his wife on her trips to Thailand, nor of the cost of upgrades on any established medical basis if such a need were established.

31. [89]

    Mr Burnett contended that his need for travel to Thailand was associated with the benefit of its warmer climate. The workers compensation insurer had previously paid for such expenses upon the basis that they were reasonably necessary.

32. [90]

    I am unable to accept that Mr Burnett has established that any loss or damage sustained by him was caused by Manhattan or Griswold’s sounding in an entitlement to damages in the form of the cost of airfares to Thailand or indeed anywhere at all. Mr Burnett’s travel to Thailand was a matter of choice: it was not compelled by the injuries that he has sustained. In short, there is no demonstrated or demonstrable causal connection between anything that happened to Mr Burnett as the result of his accident and the need for him to travel anywhere. Her Honour’s award for the cost of airfares was not supported by the evidence and is erroneous.

33. [91]

    Manhattan also made a somewhat curious submission that “in any event, all out of pocket expenses should be reduced by a percentage to take into account the vicissitudes of life greater than the usual 15%”. Avopiling at [167] was cited as support for that submission. I am unable to see how that citation assists Manhattan. The so-called greater than usual vicissitudes of life are not identified.

34. [92]

    Somewhat more confusing is the submission that “such a reduction in these circumstances would be 40% having regard to the primary cause of the need is to visit the elderly mother of Mr Burnett’s wife”. In light of the view I have formed, that Mr Burnett is not entitled to any award of damages for the cost of airfares, I will assume that this submission need be taken no further.

35. [93]

    Mr Burnett’s amended notice of cross-appeal contained three grounds, of which only the following were ultimately pressed:

36. [94]

    As the result of his fall, Mr Burnett sustained the following injuries:

37. [95]

    Her Honour assessed Mr Burnett’s non-economic loss to be 45% of a most extreme case. Her Honour’s reasons appear at [318]-[327] as follows:

38. [96]

    Mr Burnett submitted that her Honour’s decision to award damages for non-economic loss calculated at the rate of 45% of a most extreme case was so unreasonable and plainly unjust that it must be inferred that her Honour failed properly to exercise the discretion reposed in her in making the determination she did. Mr Burnett submitted that a person sustained the injuries and associated disabilities that he sustained, with the described consequences in terms of pain and suffering, loss of amenity of life, loss of expectation of life and disfigurement, both for the present and continuing into the future, could not reasonably be regarded as representing 45% of a most extreme case: Owners - Strata Plan 156 v Gray [2004] NSWCA 304 at [41].

39. [97]

    Mr Burnett submitted that even though the consequences following upon his spinal cord and closed head injuries were not such as to render him catastrophically injured, they nevertheless had the effect of destroying all aspects of his quality of life to a significant degree. He retains residual symptoms of his spinal cord injury including weakness in his legs, the inability to regulate the temperature in his hands and feet, hypersensitivity, interference with sexual function, some urinary incontinence and difficulty controlling his breathing. Although some of these problems have improved over time, most of them have persisted so as significantly to interfere with Mr Burnett’s ability to function.

40. [98]

    Manhattan did not gainsay the nature or extent of Mr Burnett’s injuries but contended that her Honour’s findings were available on the evidence and cannot be shown to be wrong.

Non-economic loss – consideration

1. [99]

   The assessment of non-economic loss under s 16 of the Civil Liability Act is an evaluative process: Rabay v Bristow [2005] NSWCA 199 at [62]. It involves “[q]uestions of fact and degree, and matters of opinion, impression, speculation and estimation calling for the exercise of common sense and judgment”: Dell v Dalton (1991) 23 NSWLR 528 at 533. The test for review of an assessment of the severity of non-economic loss under s 16 is the “deferential standard” stated in House v The King (1936) 55 CLR 499; [1936] HCA 40: White v Redding (2019) 99 NSWLR 605; [2019] NSWCA 152.

2. [100]

   There was no dispute that the test to be applied when considering an appeal against the judicial determination of non-economic loss upon the basis of the percentage of a most extreme case is now settled: see White v Redding at [57]-[78] per Gleeson JA and at [79]-[100] per White JA. As White JA said at [88]:

3. [101]

   To similar effect at [100], his Honour reiterated that the “nature of the inquiry is such that error will only be demonstrated if there is a material error in reasoning, or the primary judge’s conclusion is outside a reasonable range, which itself is a matter of impression.”

4. [102]

   In the present case, Mr Burnett did not develop any submission that specifically engages House v The King principles. For example, he does not point to the way in which it is said that her Honour has acted upon a wrong principle, or has allowed extraneous or irrelevant matters to guide or affect her, or how she has mistaken the facts, or has not taken account of some material consideration. Mr Burnett’s contention is simply that her Honour’s conclusion has produced a result that is unreasonable or plainly unjust.

5. [103]

   Her Honour’s conclusions and findings extracted above are not the only parts of her judgment that deal with the nature and extent of Mr Burnett’s injuries and disabilities. These matters were extensively reviewed by her Honour before expressing her final views. It is evident that her Honour’s consideration is detailed and measured.

6. [104]

   One aspect of her Honour’s assessment includes her impression that, notwithstanding Mr Burnett’s serious traumatic injuries, he has somewhat unexpectedly made significant progress towards recovery, although obviously without achieving it completely. As unlikely as that recovery may have seemed immediately following his fall, and without diminishing the seriousness of what occurred, it was a matter that her Honour was not only entitled, but obliged, to take into account. That impression would undoubtedly have been influenced by the video evidence of Mr Burnett’s unguarded activities, which one might reasonably expect reliably demonstrated at least some of his then current capabilities. Her Honour referred to these things at length.

7. [105]

   I consider that her Honour’s assessment of Mr Burnett’s non-economic loss was clearly open upon the evidence. In particular, her Honour had the distinct advantage of seeing and hearing Mr Burnett over a number of days in court and in the witness box. I am unable to conclude that her Honour’s findings were erroneous.

8. [106]

   Ground 1 of Mr Burnett’s cross-appeal should be dismissed

9. [107]

   As discussed earlier, Mr Burnett was required to establish that the gratuitous domestic care provided to him by his wife would not have been provided if the accident had not occurred. A continuation of the provision of the same pre-accident gratuitous assistance would not attract an entitlement to damages by reason of the requirements of s 15(2)(c) of the Civil Liability Act. Her Honour concluded that Mr Burnett’s wife provided assistance on a voluntary basis up until the date of her judgment, effectively in accordance with, and as a continuation of, the domestic arrangement that had been in place since before Mr Burnett was injured. In those circumstances it followed that his entitlement to damages for this past care was correspondingly limited to compensation for domestic assistance provided on a commercial basis. Her Honour’s conclusions to this effect at [448] and [449] are challenged under this ground.

10. [108]

    The evidence-in-chief given by Mr Burnett in support of his claim for domestic assistance was limited to the matters referred to at paragraphs 16 to 22 in his 20 January 2023 witness statement reproduced above at [63]. At [454] her Honour referred to Mr Burnett’s “concession” in cross-examination “that had he met his wife before his accident, she would still be doing the same amount of housework”. That conclusion was based upon the brief passage of cross-examination reproduced above at [73]. Mr Burnett has submitted that there was no reference anywhere in that exchange to whether or not he had been injured and that her Honour’s conclusion that so much should be inferred was accordingly not available.

11. [109]

    I do not agree with that submission. It is clear enough, even if the cross-examination could have be framed somewhat more felicitously, that Mr Burnett’s attention was being drawn to the situation before the accident in comparison to the position since the accident. There was clearly no other reason in that context why the accident was raised. Nor does it appear that Mr Burnett was unaware of the relevance of the examiner’s questions. No submission to that effect is made in this Court.

12. [110]

    More significantly, it seems to me that the evidence in Mr Burnett’s witness statement detailing his wife’s domestic activities on his behalf was in any event neither adequate nor sufficient to satisfy his burden of establishing that her services would not have been provided to him but for his injury. He does not say so in terms. His evidence otherwise does not address that issue. To the extent, therefore, that Mr Burnett’s contentions in support of this ground rely upon the perceived inadequacies of the cross-examination, they have little force.

13. [111]

    Ground 2 of Mr Burnett’s cross-appeal should be dismissed.

14. [112]

    Manhattan has succeeded on its challenge to her Honour’s conclusion with respect the Mr Burnett’s contributory negligence (Ground 8A) and its challenge to her Honour’s finding concerning damages for out-of-pocket expenses (airfares) (Ground 14). In all other respects the appeal has been unsuccessful. Mr Burnett has not established either ground of his cross-appeal. Formulation of the orders of this Court giving effect to my conclusions will involve some arithmetical adjustments to the orders made below. It may be that the parties will also wish to address the question of costs of the appeal.

15. [113]

    In these circumstances, the following orders should be made:

    1. (1)

       Allow the appeal in part.

    2. (2)

       Dismiss the cross-appeal.

    3. (3)

       Direct the parties within seven days to file short minutes of order giving effect to these reasons, including orders for the costs of the appeal.

16. [114]

    PRICE AJA: I agree with Harrison CJ at CL and the additional remarks of Leeming JA.