Torto v Dodd

[1992] QCA 301

IN THE COURT OF APPEAL	[1992] QCA 301
SUPREME COURT OF QUEENSLAND	C.A. No. 101 of 1992
BETWEEN:

ANTONIO TORTO

(Plaintiff) Respondent

AND:

ANDREW JOHN DODD

(Defendant)

AND:

SUNCORP INSURANCE & FINANCE

(Defendant by Election) Appellant

REASONS FOR JUDGMENT OF THE COURT

Delivered the 14th day of September 1992

This is an appeal by a defendant by election against the amount of damages for personal injuries awarded by a District Court Judge. The respondent was injured in a motor vehicle accident on 23 April 1987. He was seated in his car when he was thrown forward by a collision with another motor vehicle, breaking his seat belt. Although he apparently fractured his ribs and injured his neck, his main complaints then and since have been with respect to his lower back.

The respondent returned to work the following day but could not cope. He returned again on 2 June after his rib and neck pain had settled and continued, with some time off for annual leave, until 29 July 1987 when he again ceased work because of his back. He was then off work effectively until the beginning of February 1988 from which date he worked continuously for the same employer, with no loss of income, for about three years until December 1990 when he finally ceased work because of his back. There is no contest in respect of his Honour's assessment of damages for loss of earning capacity until February 1988.

It was common ground before us that, at the date of trial, the respondent's back condition permanently disabled him from working. It was also common ground that the respondent had a progressive degenerative condition of his back which predated the accident by many years. The main question between the parties was whether and if so when that condition would, in any event, have so disabled him. His Honour purported to accept an estimate of Dr Curtis that this may have been up to ten years after the accident and, after discounting for contingencies, assessed damages for future loss of earning capacity for three years from the date of trial which was five years after the accident. The appellant contended that his Honour should have concluded that this would have occurred, at the most, 18 months after the accident and consequently should have made no award for future loss of earning capacity or future medical treatment and should have made substantially lower awards for pain and suffering and for past expenditure on acupuncture.

The appellant also sought leave to add a further ground of appeal challenging what it contended was an award of interest on the Fox v. Wood component of damages. The respondent denied that any such interest had been awarded but did not oppose the grant of leave. The Court reserved its decision on that question and it is convenient to defer consideration of it until after consideration of the main question.

His Honour accepted that in 1987, after the accident, the respondent told Dr Gallagher, an orthopaedic surgeon, that he had always had lower back pain radiating down his right leg and that that pain was similar to that which he had experienced after an earlier incident in 1978. He also accepted that, in November 1990, he gave Dr Curtis a history of back pain over a period of some ten years or more.

There is no doubt that this accident aggravated his pre- existing progressive degenerative spinal condition. The important part of his Honour's judgment for the purposes of this appeal is in the following paragraph:

"There has been no real attempt to predict what the progression of spinal degeneration would have been had the collision of 23 April 1987 not occurred. Dr Curtis wrote that he thought it probable that the plaintiff's present condition could have arisen in any case from such natural progression but that it may have taken up to ten years before doing so. While I accept that such an estimate cannot be given with any precision, I am prepared to accept Dr Curtis' estimate as reasonable and conservative. In consequence I am prepared to find that it is probable that the plaintiff could have continued his pre-1987 working habits for most of that time. That coincidentally would have taken him to the pensionable age of 65 years. I accept that the plaintiff would have worked as long as he could have."

The appellant criticises two conclusions in that paragraph.
The first is his Honour's conclusion that there had been no
real attempt to predict what the progression of spinal
degeneration would have been had the collision not occurred.
It seems clear that both Dr Gallagher and Dr Fergus Wilson,
another orthopaedic surgeon, in effect predicted the effect
of the spinal degeneration had the collision not occurred;
more specifically the effect on the symptoms from that
degeneration of the injury which the respondent suffered in
this accident. His Honour was, of course, entitled to
reject their evidence and we therefore disregard it. But Dr

Curtis, whom his Honour plainly accepted, also did that in

the evidence to which we refer below.

The other conclusion which the appellant criticises is that purportedly based on Dr Curtis' evidence.

It is true that Dr Curtis, in a report apparently given in 1990 based on an examination on 5 November 1990, did express the conclusion which his Honour attributed to him in the above passage. However, in a subsequent report based on an examination on 16 April 1992, Dr Curtis substantially altered that opinion. On the basis of information then given to him he concluded that, had the collision not occurred, the respondent would have deteriorated to his then condition within a period of two to three years after the accident. The reason for his change of opinion was that further investigation demonstrated both a general improvement in the respondent's condition and a more widespread pathology throughout his lumbar spine than the doctor had previously thought existed.

However, it was not until cross examination that Dr Curtis discovered that the respondent had a previous history of lumbar pain and right-sided sciatica. When the previous history of complaints to Drs Gallagher and Wilson were put to him, Dr Curtis reduced his estimate even further to 12 to 18 months.

It is plain from the paragraph which we have quoted from his Honour's judgment that his Honour accepted Dr Curtis' evidence and intended to adopt his conclusion on this question. His Honour was mistaken in thinking that Dr Curtis' considered estimate in this respect was ten years; in fact it was 12 to 18 months. Accordingly by the date of trial the injuries which the respondent suffered in the accident had no effect on his disability.

His Honour was therefore wrong in awarding damages for loss of future earning capacity.

His Honour awarded $17,500 for pain and suffering and apportioned $10,000 of that for past pain and suffering. In consequence of the above conclusion, the amount properly awarded for pain and suffering clearly should not have exceeded $10,000 and, bearing in mind that this sum was for a period of five years of which only the first 18 months, at most, was attributable to the accident, we accept the appellant's contention that this sum should be reduced to $3,000. Because that sum is substantially less than the amount of lump sum Workers' Compensation which the respondent received (about $5,000) we do not think that any interest should be awarded on it.

Two items of special damages must also be consequently reduced or disallowed. A sum of $1,500 awarded for future medical treatment cannot stand, and the amount of $9,360 for acupuncture must be substantially reduced. That sum represents three years of acupuncture after the accident.

It is appropriate, as the appellant contends, to halve that sum and the amount of $2,246 interest which was awarded on it. The sums of $4,680 and $1,123 should therefore be substituted for those sums.

We turn now to the application for leave to amend involving as it does the contention that his Honour allowed interest on the Fox v. Wood component of $2053.78. It is not clear that his Honour did award that sum as interest on the Fox v. Wood component as the language in the paragraph of his judgment in which he dealt with this question is not at all clear. That paragraph is as follows:

"I find that the plaintiff was absent from work from 24 April 1987 until 2 June 1987 and again from 29 July 1987 until 3 February 1988 solely by reason of the effect of his injuries. The plaintiff has been accustomed to receiving additional income by way of penalty rates for overtime work done by him and no attempt was made to prove exactly what he may have earned during these absences. Using different periods counsel came to different average weekly amounts for his lost income. I accept the plaintiff's slightly lower figure and allow the resultant final figure of $11,289 as the plaintiff's loss during those times. I allow interest on $1,390 of that amount for 4½ years to allow for an averaging at 10% per annum which I have chosen because of the plummeting interest rates of the last 18 months.

I also allow as items of special damage amounts expended on his behalf by the Workers' Compensation Board totalling $1,419.80 for medical and other expenses and the amount of $2,053.78 as a Fox v. Wood component. The total of those latter amounts is $3,473.58. I also allow interest on $2,054 as above. The total of such interest is $1,549.80."

It is not clear where the amount of $1,390 comes from, although it is approximately 40% of $3,444 which was the sum of $11,289 reduced by the Workers' Compensation payments of $7,845. However, the difficulty in determining what his Honour really did in that paragraph is caused, in part, by a mathematical coincidence. This may be put in two ways.

The sum of $2,054 is, in round figures, the amount allowed by his Honour as a Fox v. Wood component; and it also happens to be the difference between the amount of past economic loss on which his Honour appeared to be saying he was awarding interest ($1,390) and the amount of that economic loss after deduction of Workers' Compensation payments ($3,444). Put more relevantly for present purposes, the total amount of interest which he said he was awarding ($1,549.80) is both the sum of interest calculated on the Fox v. Wood component ($724.30) and on $1,390 ($625.50); and also 10% of $3,444 for 4½ years at 10%.

The respondent contended that his Honour did not in fact award interest on the Fox v. Wood component but on the total amount of past economic loss after deduction of the Workers' Compensation payment although he did this, curiously, in two components of $1,390 and $2,054.

Although as we have said the meaning of the paragraph which we have quoted is not completely clear, both the context and common sense are more consistent with the view contended for by the appellant that his Honour purported to award interest on the Fox v. Wood component than with the view that, after saying that he was allowing interest on only $1,390 of the sum of $11,289 pre-trial loss of earnings, in fact he allowed it also on the balance of the sum of $3,444. The appellant contended and the respondent did not dispute that his Honour was wrong to award interest on the Fox v. Wood component. We agree. In the circumstances and as the argument on this question did not add to the cost of the appeal, we would grant leave to amend and reduce the award by this sum also.

We would therefore allow the appeal and substitute a judgment for the respondent in the sum of $24,790.58 made up as follows:

Pain and suffering	$3,000.00
Past economic loss	$11,289.00
Interest on that sum	$625.00
Special damages - Workers' Compensation Board

payments on respondent's

behalf $1,419.80

- payments for drugs	$600.00
- payments for acupuncture	$4,680.00
- interests thereon	$1,123.00

Fox v. Wood component $2,153.78
____________

Total $24,790.58
____________

We would therefore substitute a judgment for the plaintiff for $24,790.58 with costs below. The appellant should have its costs of the appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	C.A. No. 101 of 1992
Before the Court of Appeal
The Chief Justice Mr Justice Davies Mr Justice Ambrose
BETWEEN:

ANTONIO TORTO

(Plaintiff) Respondent

AND:

ANDREW JOHN DODD

(Defendant)

AND:

SUNCORP INSURANCE & FINANCE

(Defendant by Election) Appellant

REASONS FOR JUDGMENT OF THE COURT

Delivered the 14th day of September 1992

MINUTES OF ORDER: Appeal allowed with costs. Judgment below set aside and in lieu thereof judgment is given for the plaintiff for $24,790.58 with costs below.

CATCHWORDS:

Counsel:	P. Ambrose for the Appellant M. Amerena for the Respondent
Solicitors:	Foley & Eardley for the Appellant Palella Humphreys & Co. for the Respondent
Hearing Date(s):	26 August 1992; 1 September 1992

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	C.A. No. 101 of 1992
BETWEEN:

ANTONIO TORTO

(Plaintiff) Respondent

AND:

ANDREW JOHN DODD

(Defendant)

AND:

SUNCORP INSURANCE & FINANCE

(Defendant by Election) Appellant

__________________________________________________

__

THE CHIEF JUSTICE
DAVIES JA
AMBROSE J
__________________________________________________

__

Reasons for the Judgment of the Court delivered
the 14th day of September 1992
__________________________________________________
__

"APPEAL ALLOWED WITH COSTS. JUDGMENT BELOW SET ASIDE AND IN LIEU THEREOF JUDGMENT IS GIVEN FOR THE PLAINTIFF FOR $24,790.58 WITH COSTS BELOW."