Rooke v Tagaloa

[2000] NSWCA 228

CITATION:	Rooke v Tagaloa [2000] NSWCA 228
FILE NUMBER(S):	CA CA40632/99
HEARING DATE(S):	16/08/2000
JUDGMENT DATE:	16 August 2000
PARTIES :	Kenneth Rooke v Palepua Tagaloa
JUDGMENT OF:	Handley JA at 18; Foster AJA at 1

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC839/98
LOWER COURT JUDICIAL OFFICER :	Gamble ADCJ

COUNSEL:	Miss S. Norton - Applicant K.J. Kelleher - Respondent
SOLICITORS:	Brydens, Liverpool - Applicant Sparke Helmore, Newcastle - Respondent
CATCHWORDS:	Appeal decision on ground of inadequate amount. - Future wage loss inadequate. - Age sixty terminal point of employment instead of age sixty-five.
DECISION:	Appeal allowed; Refer paras 16-17.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 040632/99

HANDLEY JA
FOSTER AJA

WEDNESDAY 16 AUGUST 2000

KENNETH ROOKE v PALEPUA TAGALOA

JUDGMENT

1 FOSTER AJA: The appellant Mr Rooke appeals from a decision given in the District Court of New South Wales on 12 August 1999 by Gamble ADCJ Mr Rooke had sued the defendant, Palepua Tagaloa, for damages for injury, disabilities and consequential losses incurred by him as a result of a motor vehicle accident occurring on 14 March 1997. Liability of the defendant to compensate Mr Rooke was not disputed. Her Honour assessed damages in the sum of $281,701. Mr Rooke appeals on the ground that this amount is inadequate.

2 Two components of the award are the subject of appeal. In the first place her Honour made no award for past wage loss. It is accepted by the respondent that in failing to do so her Honour was in error. There should have been an award under this head of $735 net per week for fifty-three weeks, a total of $38,955. Accordingly the award of damages must be increased by this amount.

3 In the second place it is asserted that her Honour's award of $166,500 for future wage loss was inadequate, being flawed in two ways. Firstly it is submitted that in calculating this loss her Honour was in error in selecting age sixty as being the terminal point of Mr Rooke's employment, whereas the evidence required that age sixty-five be chosen. Secondly it is contended that too high a value was placed upon Mr Rooke's post-accident earning capacity. Her Honour found that he retained a capacity to earn $400 per week in suitable employment. It is submitted the evidence cannot support such a high figure.

4 Before considering these submissions it is necessary to make reference to background facts in the case. Mr Rooke was born on 5 October 1948 and was forty-eight years of age at the time of the motor vehicle accident. He had left school after attaining the Intermediate Certificate in 1963. He completed an apprenticeship in the printing industry but, in 1989, abandoned this industry in favour of becoming a policeman. He first joined the Commonwealth Police Force and then on 27 November 1970 joined the New South Wales Service. By the time of the accident he had become the supervising sergeant at Liverpool police station. He was well-regarded by his superiors and her Honour accepted the evidence of Superintendent Moore that the plaintiff would soon have risen to the rank of Inspector and would have held that rank up to his retirement. On rising to the rank of Sergeant, Mr Rooke had acquired a number of skills through experience and training. He could work a computer, he could touch-type, he could perform clerical work, he could supervise the work of up to one hundred station staff and had experience in rostering personnel for duties and in financial budgeting for the station. He clearly enjoyed and was committed to his employment with the police force. There was no suggestion that he contemplated leaving it to pursue another occupation.

5 In the accident he was severely injured. His injuries were described by Dr Bonanzio, an orthopaedic specialist, in a report of 24 October 1998. His most significant injury was described by the doctor as follows:

"An extremely severe comminuted fracture of the right acetabulum with central dislocation of the femoral head and displacement of the acetabula bony fragments into the pelvic cavity. The right pelvic fracture has also involved the inferior pubic ramus. The right hip fracture dislocation was skilfully treated with open reduction and internal fixation of the fragments. The best possible reduction was achieved. However the patient is left with a degree of right hip complaints and restriction of movements which are a direct consequence of the injury. No further improvement can be expected. The patient is likely to develop post-traumatic osteoarthritic changes in the right hip joint leading to total hip replacement in approximately ten years time. This will depend upon the evolution of the post-traumatic osteoarthritis, a process which varies from patient to patient."

The doctor assessed the permanent loss of efficient use of the right leg at forty-five per cent.

6 Other reports tendered in the case were to like effect, with the customary variations in percentage assessments of ongoing disability. There was no doubt that the right hip injury was most serious and involved most serious consequences. Her Honour accepted and made allowance in her award for a future hip replacement operation, thus readily accepting that future osteoarthritic degeneration would probably occur. Her award in this regard and also for non-economic damages is not the subject of challenge in this appeal.

7 Mr Rooke was unable to return to police duties until 16 June 1997 when he worked only four hours per week on light restricted duties until 13 October 1997 when he began to work five hours per day on similar duties. It was apparent that he could never return to full police duties. His employment in the Police Service was terminated on 28 July 1998 on the basis that he was medically unfit. He retired on a pension, and at date of trial had not returned to any gainful employment. In these circumstances he sought as part of his compensation an award of damages in respect of future loss of earning capacity from 28 July 1998. He claimed that the award should be based on his exercising that capacity up to age sixty-five, this being the age at which he would have retired, of necessity, from the police service.

8 Her Honour based her award on his retiring at age sixty. It is submitted that this finding lacked any evidentiary basis and that the evidence impels the conclusion that Mr Rooke would have remained in his employment until age sixty-five. His evidence in this respect was short. It was as follows, at pp 2 and 3 of the transcript. He was asked:

"Q. Had you before this accident given any thought to what age you intended to work in the police service?
A. As long as I could.

Q. Did you have any health problems prior to this accident of a continuing nature?
A. No not of a continuing nature."

Later:
"Q. It's the case though, isn't it, police must retire at 65, you can't continue beyond 65?
A. That's correct."

9 In cross-examination the following exchange occurred at p 15:

"Q. In making a decision as to whether you retire or not you are influenced by what other people do, is that right Mr Rooke?
A. No I make my own decisions.

Q. Do you know of anybody in the station there that has continued beyond the age of 55?
A. Yes.

Q. Who, so you say, has continued beyond the age of 55?
A. Sergeant Randall.

Q. Sergeant?
A. Sergeant Randall.

Q. Still working?
A. Yes.

Q. He is the only one?
A. No, these are the ones I know their ages, there are a number of other police there still working there."

10 Superintendent Moore was not asked any questions on this topic but in my view nothing can turn on this. He could give no evidence as to the plaintiff's subjective intentions. In any event, the fact that some police might retire early from the force would not necessarily indicate that they would not thereafter seek equally gainful employment outside, up to and perhaps beyond the ordinary retiring age.

11 Her Honour gave no reason for her selection of age sixty. It had not been directly put to the plaintiff that he would have retired at that age, or indeed before age sixty-five. His evidence clearly indicated that he would have remained in the force until age sixty-five. The challenge, if it can be so called, in cross-examination was most oblique and unsupported by evidence from the defendant. Her Honour cannot have selected the earlier retiring age as a discounting factor, as she applied the ordinary fifteen per cent discount for contingencies in assessing future economic loss. Although there is an element of discretion involved in this aspect of her Honour's judgment I am, with respect, driven to the conclusion that the selection of age sixty involves some concealed error in her Honour's reasoning. In my opinion this aspect of the appeal must succeed and the award for future economic loss be increased to extend the relevant period of calculation to age sixty-five.
12 The second error asserted is in her Honour's selection of the figure of $440 per week net as representing the plaintiff's ongoing loss of earnings resulting from the accident. The figure was arrived at by taking $840 per week as the ongoing earnings of a police inspector, this being unchallenged, and subtracted therefrom $400 per week, being the amount found to reflect the plaintiff's residual earning capacity. Her Honour gives no reason for choosing this figure although it must be acknowledged that the evidence could not necessarily have led to any precise calculation. Her Honour dealt with this question at pp 13 and 14 of the red appeal book as follows:-

"Mr Lidden suggested that Mr Rooke's residual earning capacity should be put at no more than $300 per week nett, while Mr Kelleher assessed it at 'top end of the $500 mark', at approximately $570 per week nett.
There is a duty under s.39 for the injured person to mitigate their damages by 'pursuing alternative employment opportunities' s.39 (1A)(d). There was little evidence that Mr Rooke had attempted to obtain alternative employment since his departure from the Police Service in July 1998. His skills would appear to equip him for clerical and some management positions, but his disabilities and age may reduce opportunities for employment. Mr Rooke was working 11.5 hours a week when he left the Police Service. There is evidence from physiotherapist, Pamela Johnston, (Exhibit 1) that he should be capable of 'semi-sedentary work on a full-time basis'. The medical reports indicate that he is 'fit for restricted duties, being mainly sedentary' (Dr James Powell), 'he would have to work in a situation where he could sit or stand at will' (Dr Peter Conrad), 'he is fit for office work' (Dr Ernest Tam), 'he is permanently fit for semi-sedentary activities' (Dr Mario Benanzio).
It seems Mr Rooke is physically capable of some sedentary employment, so long as there is opportunity for him to change posture as he requires. He is also competent to perform clerical and possibly managerial or administrative work, at nett salaries between approximately $300 to $550 per week."

13 The appellant in his written submission contends that this approach

"ignores the fact that the appellant was only capable of working 11.5 hours per week, and that the rates of pay set out are for full time work."

14 It is clear that the rates of pay which came from fairly elaborate material in a report of a vocational psychologist tendered by the defendant are for full time work in various occupations said to be within the plaintiff's capacity. However the 11.5 hours per week was clearly a misreading of the evidence. The plaintiff was working in fact five hours per day at the time his employment was terminated. Notwithstanding this I have experienced a little difficulty in accepting the $400 per week figure arrived at by her Honour. It does assume an ability in the plaintiff to work a full week in semi-sedentary work in circumstances when it is accepted that his right hip will probably deteriorate over ten years to the point where a replacement operation will be necessary.

15 On the other hand the plaintiff readily conceded that:

"He would be eminently suited for many jobs in a managerial capacity."

And that he was certainly capable of clerical work and that there were probably a large number of jobs that he was capable of doing. The evidence also supported her Honour's view that Mr Rooke had done very little to seek employment since he retired.

16 I have concluded that in all the circumstances her Honour in selecting the figure of $400 per week was probably bearing in mind that the plaintiff's work may not be continuous but if he obtained managerial type work which, on the evidence, he was capable of performing even in his injured state, he could command salaries at the top of the range established in the evidence. This would balance out periods of unemployment with the result that the figure of $400 per week could reasonably provide a measure of residual earning capacity. I am satisfied that there is no appealable error in her Honour's having selected this figure. The result, in my opinion, is the appeal should be allowed, an amount of $38,955 must be added for past economic loss, and the figure for future economic loss adjusted upwards to allow for the calculation terminating at age sixty-five.

17 The new total is $352,114. This should be substituted for the previous total $281,701, which must be set aside. I propose the appeal be allowed, the award of damages be set aside and that there be substituted an award of damages in the sum of $352,114. Obviously that will have to take effect from the date of her Honour's judgement which was 12 August 1999. The respondent should pay the appellant's costs of the appeal. The respondent should have a Suitors Fund certificate, if entitled.

18 HANDLEY JA: The orders of the Court will be as announced by Mr Justice Foster.

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