De Martin & Gasparini Pty Ltd v Bartlett

1. [1]

   LEEMING JA: De Martin & Gasparini Pty Ltd (“DMG”) appeals from a judgment in an amount exceeding $2,500,000 entered against it in favour of Mr Dustin Bartlett, who was injured at a building site in the Sydney CBD on 26 April 2018: Bartlett v De Martin & Gasparini Pty Ltd [2024] NSWSC 1172.

2. [2]

   Mr Bartlett’s services as a concreter and linesman had been supplied by a labour hire company, and his legal employer was also originally sued. However, that company had been deregistered and the Workers Compensation Nominal Insurer was joined as the second defendant. Mr Bartlett obtained a judgment in an amount exceeding $1,600,000 in his favour against it, with liability apportioned as between the two defendants at 90% for DMG and 10% for the Workers Compensation Nominal Insurer. There was no challenge to the apportionment. Bearing in mind the fact that the latter had made some $700,000 in workers compensation payments, which it was entitled to recover following an award of modified common law damages under Division 3 of Part 5 of the Workers Compensation Act 1987 (NSW): see s 151A of that Act, the interests of Mr Bartlett and the Workers Compensation Nominal Insurer in defending the appeal were for practical purposes wholly aligned.

3. [3]

   According to DMG’s “Day Sheet” for 26 April 2018, on that day there were eight employees of DMG and four workers supplied by another labour hire company, Civic Contractors Pty Ltd, in addition to Mr Bartlett and the supervisor Mr Rossetto. All 13 men were recorded as having started at either 6.30am or 7am.

4. [4]

   There was very little evidence explaining how the accident occurred. Mr Bartlett explained in his statement:

5. [5]

   The statement was tendered in chief, no further evidence was led, and his cross-examiner gave Mr Bartlett little opportunity to elaborate what had occurred some six years earlier. The cross-examination established that he had been working on the site for some two or three months, but not attending every day, and going to other sites for work in the same period. It was uncontroversial that Mr Bartlett had lifted this sort of hose, 10 metres long with a diameter of around 10 centimetres, also referred to in the evidence as a pipe, many thousands of times in the 19 years he had worked as a concreter and linesman. He gave this evidence:

6. [6]

   The evidence also established that there were days when he worked to spread concrete, rather than as a linesman delivering concrete, and likewise that the concreters from time to time helped lifting the pipes. He agreed that from time to time the Civic employees lifted the pipes, saying “Yes, occasionally. Yes.”

7. [7]

   The primary judge found, and there was no dispute in this Court, that the rubber pipes used to direct the flow of concrete were 10 metres long, with an internal diameter of 3 inches, and, when empty, weighed between 45 and 50 kg.

8. [8]

   The “other worker” has never been identified, and the primary judge proceeded on the basis (which, as will be seen, should not be accepted) that it did not matter whether he was a labour hire worker or direct employee.

9. [9]

   Another contemporaneous document identifies a report made at 11am on 26 April 2018 with the description “lifted concrete rubber with a work mate, causing a strain on his lower back” and identified the severity as “[v]ery [s]mall”. The treatment supplied on site was “[i]ce pack applied”. It is possible that the perceived lack of seriousness of the injury in its immediate aftermath contributed to the fact that the identity of the “other worker” was not recorded.

10. [10]

    Notes of a consultation with Mr Bartlett’s general practitioner later that day state:

11. [11]

    The doctor prescribed Naproxen and Panadeine Forte, and requested a CT scan of the lumbar spine, noting:

12. [12]

    Sadly, Mr Bartlett was found to have suffered from pre-existing degeneration of his lumbar spine. The radiology report dated 9 May 2018 stated:

13. [13]

    A report dated 6 September 2018 states that the initial injury “was successfully managed with conservative measures and he was settling when he awoke a month ago with severe recurrence of his pain”. It is not necessary to summarise the subsequent treatment, which included three surgical interventions. The pre-existing degenerative condition complicated the assessment of Mr Bartlett’s damages, leading to two grounds of appeal.

14. [14]

    The reasons of the primary judge, promptly delivered after a three day trial, were relatively brief. It is convenient to address them at the same time as dealing with the various grounds of appeal.

The Finding of Negligence (grounds 1-5)

1. [15]

   Grounds 1-5 of the notice of appeal challenged the findings of negligence.

2. [16]

   Despite reproducing s 5B of the Civil Liability Act 2002 (NSW), the primary judge gave little attention to the identification of the risk of harm, or the reasonable precautions which a person in the position of the “other man” would have taken. To be fair, the approach of the primary judge reflected that taken by the drafter of the statement of claim, which likewise did not identify risk of harm and gave generic particulars of negligence most of which bore no relationship to the case which went to trial. The particulars of breach by DMG were said to be (a) a casual act of negligence, (b) a failure to provide a safe system of work, (c) a failure to warn the plaintiff of a risk of injury, (d) a failure to instruct the co-worker as to the correct manner of lifting and carrying a hose in a team lift situation, (e) failure to provide proper equipment, (f) failure to provide training, (g) failure to provide sufficient workers, (h) failure to carry out a risk assessment, and (i) a failure to set up the equipment with due regard to the risks involved. The omissions in (b)-(i) are readily understood as being omissions for which DMG was alleged to be vicariously liable, as is the casual act of negligence in (a). No further particularisation of that casual act of negligence appears to have been provided, but the trial proceeded on the basis that it was the conduct of the unknown worker at the other end of the pipe.

3. [17]

   Mr Bartlett gave evidence that he had participated in moving the pipes thousands of times over the 20 years he had been a concreter and linesman. Particular (b) was expressly abandoned, while particulars (c)-(i) had no real application to the mundane task of two men moving a pipe from one part of the building site to another. The two men involved had performed the same task twice that morning before the incident occurred. It is to be borne in mind that the pipe was awkward, and the surface on which the men were walking was reinforcing mesh and required care.

4. [18]

   The primary judge found that the other worker had committed a casual act of negligence. This was within the particularised case, in a sense, but without any identification of the relevant risk of harm, or the precaution that should have been taken, or indeed what the actual conduct was.

5. [19]

   Conspicuous by its absence was any evidence of the usual practice of Mr Bartlett and others on the site when moving a pipe. For example, was there an accepted custom as to which of the two men would direct the other (perhaps, the man at the back of the pipe, who did not have to turn around in order to see whether the other man was ready, was in control) or was there a system to confirm that both had a secure grip after lifting the pipe vertically before any lateral motion across the building site commenced? There were after all a number of risks present. Either man could misstep on the irregular surface of reinforcing mesh. If one man dropped his end of the pipe without warning, that could cause the other man to lose balance and fall. If one man started moving laterally before the other was ready, that too could cause injury.

6. [20]

   Concerning the risk of harm, his Honour said at [40], referring to what had been said in Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90 at [98], that:

7. [21]

   That falls short of identifying the risk in a way which is sufficiently precise to capture the harm resulting from the materialisation of the facts which occurred in the present case. Indeed, it is so general that it would apply to any injury on any building site involving a wire mesh surface. It ignores the important facts that the pipes were so long and so heavy that moving them was a job for two or more men, and therefore required co-ordination.

8. [22]

   Guidance on the formulation of risk may be found in Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103; [2020] NSWCA 65 at [52], where it was noted that:

   1. (1)

      the formulation of risk of harm should identify the “true source of potential injury” (Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [60]) and the “general causal mechanism of the injury sustained” (Perisher Blue Pty Ltd v Nair-Smith at [98]);

   2. (2)

      “the risk must be defined taking into account the particular harm that materialised, and the circumstances in which that harm occurred”: Erickson v Bagley [2015] VSCA 220 at [33]; Southern Colour (Vic) Pty Ltd v Parr [2017] VSCA 301 at [55];

   3. (3)

      “What is to be avoided is an unduly narrow formulation of risk of harm which then distorts the reasoning, because, for example, it obscures the true source of potential injury (as noted in Dederer at [60]) or because it too narrowly focusses on the particular hazard which caused the injury (as noted in Port Macquarie Hastings Council v Mooney ... at [67]), or because it fails to capture part of the plaintiff’s case (as in Garzo).”

9. [23]

   In relation to the reasonable precautions which the other worker should have taken, his Honour said at [41]-[42]:

10. [24]

    The primary judge addressed contributory negligence at [51]-[52]:

11. [25]

    The appellant did not strenuously dissent from the proposition that those paragraphs were the clearest identification in the reasons of the primary judge of the conduct which was found to have constituted a breach by the other worker of an obligation to use reasonable care. I shall proceed on the same basis.

12. [26]

    Parts of the reasoning in the paragraphs on contributory negligence cannot stand. Contrary to the concluding sentence of [52], the plaintiff was involved in the carrying out of the decision to move the pipe. That movement was required to be coordinated, and both men had to take steps to confirm that each was ready to move laterally before that occurred. Contrary to the thrust of [51], the plaintiff was in a position to have confirmed with the other man that neither would move until both were ready.

13. [27]

    More generally, beyond the words “without checking on the plaintiff’s readiness” at [51], none of the paragraphs identify with any precision the words or conduct which the other man should have said or done by way of reasonable precaution within the meaning of s 5B(1)(c). “[I]gnor[ing] the demands of coordination” is a conclusion, rather than a finding of what occurred or failed to occur.

14. [28]

    The high point of appellant’s case were the submissions that a claim based on the system of work was abandoned at trial, and that there was insufficient evidence of the events of 26 April 2018 in order for findings in accordance with s 5B to be made. That included an absence of any evidence as to which of the two men was in control, or if no one were in control, what the mechanism to coordinate the lift and lateral movement was. There was no evidence whether the direction or coordination was oral or by conduct or both. Further, it was said that given the pre-existing lumbar spine condition, it was not established that the other worker had done anything sufficient to constitute negligence.

15. [29]

    A coordination failure, in the facts of this case, involved a departure from reasonable precautions by both men. It seems clear enough on the evidence that lateral motion of the pipe commenced prior to Mr Bartlett signalling that he was ready to move. Although the primary judge focussed upon the unexpected lateral movement by the unidentified worker, it is difficult to reconcile his Honour’s focus upon the failure of coordination with the absence of contributory negligence. The risk that the other man might move before Mr Bartlett was ready was eminently foreseeable and was precisely why coordination was required.

16. [30]

    Although there is force in DMG’s submission that this is a case where the factual findings are so exiguous that a conclusion of negligence is problematic, I have concluded that the primary judge was correct to conclude that s 5B was satisfied. The relevant risk of harm was that one of the two men involved in moving a heavy, awkward pipe on an irregular surface might act without regard to the readiness of both, thereby causing physical injury. That risk was self-evidently foreseeable and not insignificant. The precautions which a reasonable person would take were to communicate, either by words or conduct, when both were ready to proceed, and not to move laterally until both had completed the lifting of the pipe. If not, then there was a non-negligible risk of uncoordinated movement, which could lead to one or both men falling and sustaining injury. The burden of those precautions is negligible, and the social utility of the construction industry is self-evident.

17. [31]

    The other man moved the pipe laterally before Mr Bartlett had secured a proper grip and before he was standing upright, and without the pair coordinating their movements. Doing so caused Mr Bartlett to sustain injury. The existence of a duty was not disputed. The elements of negligence were made out.

18. [32]

    As noted above, the primary judge did not determine whether the other worker was a legal employee or a worker supplied by Civic. His Honour took that approach on the basis that the other worker was working under the supervision and direction of DMG and “as if” he was DMG’s employee: at [17] and [37].

19. [33]

    Two propositions are to be steadily borne in mind when addressing the reasoning on vicarious liability. In this country, and putting to one side statute, (a) only a single person can be vicariously liable for the tortious conduct of another, and (b) the distinction between an employee and an independent contractor is basic: see Mt Owen Pty Ltd v Parkes [2023] NSWCA 77; 324 IR 34 at [32] and [46] and the authorities there cited.

20. [34]

    Accordingly, there was a vital difference, for the purposes of attributing liability in negligence to DMG, between the men on the site who were DMG’s employees, and the men on the site who were Civic’s employees who had been supplied by Civic to the site. Hence the significance of whether there had been a transfer of employment for the purposes of the law of vicarious liability considered in Mt Owen Pty Ltd v Parkes at [40]-[49]. After an analysis of that topic, Basten AJA with whom Brereton and Kirk JJA relevantly agreed, concluded that the relevant test remained as stated by Brennan J in Kondis v State Transport Authority (1984) 154 CLR 672 at 692; [1984] HCA 61:

21. [35]

    Basten AJA said that in order for there to be the requisite transfer of control sufficient for a host employer to be vicariously liable for the tortious conduct of a worker supplied under a labour hire agreement, the following general propositions applied (at [49]):

22. [36]

    In the facts giving rise to the present appeal, neither the contract of employment nor the labour supply contract was in evidence. Accordingly, Mr Bartlett placed attention on the third factor, namely how the work was undertaken and controlled by DMG. Mr Bartlett submitted that the reference to “control” invoked what the High Court had said in Zuijs v Wirth Bros Pty Ltd (1995) 93 CLR 561 at 571; [1995] HCA 73, but that was in connection with a different issue: whether a trapeze artist was an employee or an independent contractor. When the factor in [49(c)] is read in context, the control is a reference to the first sentence of the paragraph which speaks to the host employer controlling “the manner in which the work is undertaken”. That reflects a well established proposition in this area of the law. Jordan CJ said in McDonald v The Commonwealth (1945) 46 SR (NSW) 129 at 132:

23. [37]

    That passage was applied by the Western Australian Court of Appeal in Kelly v Bluestone Global Ltd (in liq) [2016] WASCA 90 at [73] (Murphy JA) and [87] (Mitchell JA). Each member of the Court emphasised that the question turned on control. McLure P said at [58] that “[t]he focus is on who has the right to control the manner in which the act involving the negligence was done.” Mitchell JA said at [87] that “the principle is engaged where the employer vest in the third party complete, or substantially complete, control entitling it to direct the employee as to how he or she is to do the negligently performed work”. Murphy JA wrote to the same effect at [74]-[75].

24. [38]

    The passage from Jordan CJ’s judgment in McDonald was also applied by this Court in QBE v Orcher; Bowcliff v Orcher [2013] NSWCA 478 at [154]. Tobias AJA, with whom McColl and Macfarlan JJA agreed, concluded that the requisite control was not vested in the host employer in relation to licensed security guards supplied by the labour hire company, saying at [156] that “the evidence does not come close to establishing [the requisite] level of control”, and that the host employer “could no doubt instruct Mr Paea as to where he was to patrol but did not and could not instruct him how to perform the job of a professional security guard. This was unnecessary as the DSSS guards were engaged by Bowcliff because of their expertise as trained and licensed security guards.”

25. [39]

    Thus it is quite clear that the reference to “control” in [49] of Basten AJA’s reasons in Mt Owen Pty Ltd v Parkes is a reference to whether the so-called “host employer” had the power to control the manner in which the negligent act was undertaken.

26. [40]

    I would accept DMG’s submission that there was no requisite transfer of control in respect of a familiar task of moving a concrete pipe around a building site, which Mr Bartlett said he had performed thousands of times throughout his career. There was no evidence that DMG had taken any step to control the manner in which the other worker, or Mr Bartlett, was to perform that task.

27. [41]

    A person is not without more vicariously liable for the tortious act of an independent contractor who performs a casual act of negligence when carrying out a function which is well within his or her expertise and as to which there has been no direction in relation to the manner of its performance. The reasoning by the primary judge to the effect that it was sufficient that the Civic employees were treated “as if” they were DMG employees is insufficient to establish DMG’s vicarious liability for a casual act of negligence when performing a familiar task. I bear in mind that although no effort was made to prove the contract pursuant to which Civic provided labour to DMG, it is reasonable to infer as DMG submitted, without opposition from the respondents, that the people supplied would be reasonably skilled with the familiar operations involving concreting on a building site.

28. [42]

    However, I would not accept DMG’s submission that it is “completely speculative” as to who the “other worker” was. This submission was to the effect that since the evidence established that all 13 people on the site were capable of and sometimes were involved in moving pipes, it could not be determined whether the man at the other end of the pipe on 26 April 2018 was an employee of DMG or of Civic, this being an issue where the plaintiff bore the onus. Merely as a matter of statistics, there is a good chance that it was one of the eight employees, as opposed to one of the four workers supplied by Civic. Further, the Day Sheet identifies the activities undertaken by each person. Mr Bartlett and three DMG employees are described as “P” (ie “pumping”), while all four Civic men, together with five other DMG employees, are described as “C” (ie “concreting”). The evidence was that there are separate roles for placing the pipes for a concrete pour, as opposed to smoothing the poured concrete.

29. [43]

    A more probable inference from the activity codes on the Day Sheet is that the other man on the pipe was one of the three employees whose task that day was pumping, as opposed to the nine men (five employees, four supplied by Civic) whose task that day was concreting.

30. [44]

    Further, Mr Bartlett’s evidence was that the Civic workers only “occasionally” moved the piping.

31. [45]

    The identity of the man at the end of the pipe is in issue only because the law imposes a different test to attribute liability to DMG for any negligence of that man depending on whether he is a legal employee or a host employee. In order to apply that test, it is not necessary to identify the particular man (if that were necessary, it would be quite speculative). It is sufficient that the evidence permits a finding to be made as to which of those two classes he fell into. Particularly in a case where there is no direct evidence, the tribunal of fact is entitled to draw inferences from even slim circumstantial facts that exist so long as that goes beyond speculation: see for example Shoalhaven City Council v Pender [2013] NSWCA 210 at [76] and the cases there cited.

32. [46]

    Although perhaps strictly this should have been the subject of a notice of contention, the topic was squarely raised in oral submissions. The submissions advanced by DMG on the significance of control in order for there to be a transfer of vicarious liability made this issue natural if not inevitable. I would find that the other man was an employee for whose tortious conduct DMG was vicariously liable.

33. [47]

    On that basis, which departs from that of the primary judge, DMG is liable in negligence.

Contributory negligence (grounds 6-8)

1. [48]

   The reasons of the primary judge occupied two paragraphs, and they have been reproduced above. They disclose error, both because Mr Bartlett was involved in the task (contrary to the last sentence of [52]) and because implicit in the failure of coordination is a failure on the part of both men in the joint task of achieving a coordinated lift and lateral movement of the pipe.

2. [49]

   The facts as to what precisely occurred are exiguous. But that does not prevent this Court doing the best it can to identify the extent to which Mr Bartlett by failing to take steps to communicate, by words or conduct, with the other man, not to move laterally until he had stood up fully and secured a proper grip on his end of the pipe, had contributed to the injury.

3. [50]

   DMG said that the failure of both men to coordinate their movement entailed a finding of 50% contributory negligence (“in our submission, there would need to be a finding of at least 50% each contributory negligence, or greater, because the plaintiff was at the back end of the lift, and would therefore, as a matter of common sense, have a better opportunity to coordinate”). But it is one thing for the other man to commence lateral movement before the other was ready, and another for Mr Bartlett not to have taken steps to remind him, or perhaps to direct him, not to do so before both were ready.

4. [51]

   Mr Bartlett sought to uphold the findings of the primary judge. But it is to be borne in mind that a systems case was abandoned, that the need for coordination was obvious, and the risk of failing to coordinate was equally obvious. Indeed, as already noted, the reasons of the primary judge are difficult to reconcile with an absence of contributory negligence.

5. [52]

   There was a failure to coordinate the lift and lateral transfer of the pipe. The consequence of the absence of detailed findings means that the it must be concluded that there was a failure on the part of Mr Bartlett to take reasonable care to protect himself. The evidence does not, for example, permit a finding that Mr Bartlett was complying with an established system for co-ordinating the movement of the pipe, from which the other man departed without warning. That said, while the failures of both men to coordinate the activity caused the injury sustained by Mr Bartlett, the culpability of the other worker is significantly greater.

6. [53]

   Doing the best one can, contributory negligence should be assessed as one third.

Damages (grounds 9 and 10)

1. [54]

   These grounds impugned two components of the judgment: future economic loss and future domestic assistance.

2. [55]

   Mr Bartlett had been a concreter and linesman since his youth. He was aged 36 at the time of the incident. By the time of the trial, six years had passed, leaving 24 years of working life ahead of him.

3. [56]

   The primary judge allowed an amount of $890,107 for future economic loss, calculated on the basis of an agreed after tax weekly earnings of $1,900. The primary judge considered that Mr Bartlett was entitled to six years of complete incapacity, followed by a further 18 years of loss of 60% of that wage. His Honour then deducted 15% for vicissitudes from the sum of those products.

4. [57]

   The reduction in economic loss turned upon the pre-existing lumbar spine condition and a joint report of two medical experts, who were not required to give evidence. The three most relevant aspects of the joint report were question 10 asked by the defendant and questions 1(g) and 1(h) asked by the plaintiff. Those questions and the doctors’ answers were as follows:

5. [58]

   All parties were content to tender the joint report without requiring any of its authors to explain the ambiguities it contained.

6. [59]

   Although there is at least arguably some ambiguity, the better view is that question 10(b) asked a precise question as to the timeframe that Mr Bartlett would have had to cease work due to his pre-existing condition and that question was answered unambiguously by the medical experts as 12 years.

7. [60]

   The appellant’s written submissions proceeded, favourably to Mr Bartlett, on the basis that he would be entitled to damages for future economic loss based on after tax earnings of $1,900 per week for the remainder of the 12 years since the incident, but that thereafter those damages would be much less because of the agreed incapacity to work as a concreter/linesman. DMG proposed that for the 18 years when Mr Bartlett was aged 49-67, there be determined 80% of average weekly earnings to reflect what would have been his uninjured limited capacity to work because of the manifestation of the pre-existing conduction, from which should be deducted one half, reflecting Mr Bartlett’s injured capacity, being an ability to work 20 hours a week rather than 40 hours per week. From both of those amounts, 15% was to be deducted for vicissitudes.

8. [61]

   The upshot is that future economic loss for the years when Mr Bartlett was aged 49-67 should be 40% of average weekly earnings, principally reflective of his being unable to work as a concreter in any event as a result of his pre-existing condition.

9. [62]

   Those calculations are to be preferred. The primary judge gave no reasons for assuming that at the time when Mr Bartlett would cease to be able to work as a concreter/linesman, he would thereafter require compensation for the rest of his life at the rate of 60% of his earnings as a concreter/linesman.

10. [63]

    Ground 10 concerned calculation of future domestic assistance. The primary judge allowed 4 hours per week, and no issue was taken with that finding. However, the primary judge calculated the cost of future domestic assistance at $73.62 per hour. That rate had been proffered by Mr Bartlett and was based upon two propositions both of which DMG contested. The first was that they included an element for work on Saturdays and Sundays (which was at a higher rate than for weekdays). DMG contended that the relatively small amounts of assistance in cooking meals and gardening and other household duties could just as easily be done on a weekday and so the rate should not include any component based upon the higher weekend rates.

11. [64]

    The second was that the plaintiff’s rate was an average of four commercial providers of household and gardening assistance. DMG had identified three “local” suppliers of services from advertisements in local newspapers and media near Mr Bartlett’s address which were in the vicinity of $30-35 per hour.

12. [65]

    For both of those reasons, DMG contended that the amount should not be calculated by reference to the $73.62, but by reference to a much lower rate. The judgment entered by the primary judge included a component of $229,657.59 (being 4 x $73.62 x 917.5, reduced by 15%).

13. [66]

    Both of DMG’s submissions should be accepted. The only matter put against the former, as I understood it, was the fact that Mr Bartlett’s wife was a nurse who might have to perform shift work. Accepting as much, that did not mean that it was reasonably necessary, in order to determine this head of damages, that the rate should incorporate in part the higher weekend rates. Nor is there any sound reason for calculating this head of loss by the higher rates supplied by Mr Bartlett as opposed to the lower rates supplied by DMG, in circumstances where it was not suggested that those rates were not readily available or that the services provided by those suppliers were inadequate. (One reason why the commercial services supplied by organisations are higher than those offered by local individuals is that the latter, if they fell below the $75,000 threshold, would not have to register for GST or charge GST: see A New Tax System (Goods and Services Tax) Act 1999 (Cth), s 23-15(1)(b) and A New Tax System (Goods and Services Tax) Regulations 2019 (Cth), reg 23.15.01.)

14. [67]

    Damages are assessed with respect to the objective monetary value of the plaintiff’s loss, ordinarily calculated by reference to market cost (see Van Gervan v Fenton (1992) 175 CLR 327 at 333; [1992] HCA 54), and that is not measured by the most expensive rates which some suppliers are able to secure, but by the rates charged by suppliers who are proving the most competitive rates.

15. [68]

    That said, the joint report dated 20 August 2024 included in answer to question 7(d) DMG’s expert’s opinion that the average local community cost for domestic services was $25-$30, and for maintenance services $35-$40. Those rates derived from a 2022 report. The rates which would be paid in September 2024, some two years later, will be higher. It is appropriate for this component of the judgment to be calculated using a rate of $45.

Conclusion and orders

1. [69]

   The parties should in light of the above recalculate the judgments which should be entered in lieu of the judgments entered at first instance. In light of the acceptance of the amount of damages for past economic loss, the judgment should be based on amounts as at 17 September 2024 (thus attracting post-judgment interest), unless the parties are agreed as to a different course.

2. [70]

   The parties should provide agreed short minutes of order, or alternatively the orders for which each contends, and short reasons in support, no later than 21 days from today. In the event of a dispute, the opposing parties will have seven days to supply submissions in opposition.

3. [71]

   That regime will also extend to the question of costs. Subject to any offers or notices to admit and subject to the precise calculations consequent upon these reasons, it would appear that (a) the plaintiff would be entitled to his costs at first instance, while (b) both active parties have had a measure of success in this Court.

4. [72]

   I propose the following orders:

5. [73]

   McHUGH JA: I agree with Leeming JA.

6. [74]

   PRICE AJA: I agree with Leeming JA.