BALASUBRAMANIAN v SARA SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MASON P and PRIESTLEY JA 14 May, 12 June 1997 [1997] NSWCA 39 The respondent was injured whilst seated in his stationary motor vehicle when it was hit from behind by a vehicle being driven by the appellant. The respondent received an award of damages in the District Court under the statutory scheme established by the Motor Accidents Act 1988. The appellant claimed the award of damages was too high and appealed against the assessment of damages by Moore DCJ challenging: (i) the award for non economic loss based on a finding of 30% impairment pursuant to s 79 Motor Accidents Act 1988; and (ii) the assessment for economic loss to the extent that it was based upon findings that the respondent had been rendered totally unemployable and that he would have worked until age 72 years at his pre-accident level of employment. Held, appeal allowed: 1. Regarding damages for non economic loss, assessment should have been on the basis that the incontinence problem would probably have been cured shortly after the trial, unless the respondent unreasonably failed to mitigate his loss. Thus the trial judge erred in treating incontinence and its psychological sequelae as an inevitable part of the respondent's permanent condition. Taking this into acount, together with this court's assessment of video evidence of the respondent's continuing impairment and the weight to be given to raw data as to psychological injury, the s 79 proportion is assessed at 20%. 2. Regarding damages for loss of earning capacity, the trial judge did not give sufficient weight to the objective factors indicating the respondent would not have continued up to age 72 working as a tiler and 68 is the more probable age of retirement. Southgate v Waterford (1990) 21 NSWLR 427; referred to. Medlin v Government Insurance Commission (1995) 182 CLR 1; applied. Mason P. The defendant appeals against the assessment of damages by Moore DCJ. The proceedings were brought under the Motor Accidents Act 1988 and concern a motor vehicle accident that occurred on 21 March 1990. Liability was not in issue. The respondent had been seated in his stationary motor vehicle when it was hit from behind by a vehicle being driven by the appellant. On 20 December 1996 a verdict in the sum of $282,496.40 was entered in favour of the respondent. This amount was calculated from the following allowances: Past out of pocket expenses $ 9,714.60 Future out of pocket expenses $ 2,620.00 Non economic loss $ 72,600.00 Past economic loss $136,500.00 Future economic loss $ 32,650.00 $254,084.00 2 UNREPORTED JUDGMENTS These damages exceeded the jurisdiction of the District Court and were accordingly reduced to $250,000. This figure was then reduced by $8,531.60 being payments made by the defendant pursuant to s 45 of the Motor Accidents Act. The resultant figure was $241,568.40 to which $41,028.00 was added as interest pursuant to s 83A of the District Court Act. The respondent was born in 1927 and was 69 at the date of trial in March 1996. Since his arrival in Australia in 1951 he had worked as a self employed wall and floor tiler, with the exception of two years working as a bookmaker in the 1970s. At the time of the accident in 1990 he was aged 63 and married with two daughters then aged 8 and 6. In about 1980 the respondent commenced to live with a woman called Debbie Henley. They had two daughters, Noah born in June 1981 and Amanda born in September 1983. In 1984 or 1985 the respondent and Ms Henley separated and she retained custody of the daughters. The respondent married another woman in 1988, but separated from her in late 1991. Later, and after the accident, the respondent obtained sole custody of the two girls following difficulties with drug-taking affecting their mother. At one point the children were abducted and taken to Queensland until retrieved by the Commonwealth police. Thereafter the respondent accompanied his children to and from school, fearing a repeat of the same problem. He has taken sole care of his children since that time, providing for their cooking, cleaning, shopping and so forth. In January 1992 the respondent became 65. He applied for and was given the age pension at the fortnightly rate of $321.00 for himself plus $100 for his daughters. Issues pressed by the appellant were: — 1. Acchallenge to the award for non economic loss which was based on a finding of 30% impairment (cf Motor Accidents Act, s 79). This assessment was said to be too high, particularly if findings of (a) psychological damage and/or (b) permanent incontinence stemming from the accident were set aside. 2. Achallenge to the assessment for economic loss to the extent that it was based upon findings (a) that the respondent had been rendered totally unemployable and (b) that he would have worked until 72 at his pre-accident level of employment were it not for the accident. NON ECONOMIC LOSS The trial judge was faced with the task of determining 'a proportion' as a relation between the case before the court and 'a most extreme case'. He determined that the proper assessment was 30%, by way of proportion of the severity to a most extreme case. It was stated that 'the figure would be much higher in a younger person, but is reduced for the plaintiff's age (Reece v Reece 12 MVR 103). THE RESPONDENT'S INJURIES In addressing the nature and extent of the respondent's injuries the judge noted that they fell into three categories: orthopaedic, urogenital and psychological. (a) Orthopaedic The trial judge found that there were soft tissue injuries of the whiplash variety to the cervical and lumbar spine. Noting that the respondent had pre-existing mild degenerative changes to the cervical spine which were not symptomatic, it was found that the URJ BALASUBRAMANIAN v SARA (Mason P) 3 accident rendered the condition symptomatic giving the respondent severe pain in the neck, radiating up into the head, together with pain and pins and needles in the arms. The respondent placed particular emphasis on the stiffness and pain in his left arm, which the judge held to be genuine. The feelings in the left arm vary from discomfort to positive pain. This condition had continued unabated in the six years between the accident and the trial. The respondent's evidence was corroborated by his medical witnesses and was accepted by the trial judge. The judge obviously accepted the opinion of Dr Teychenne, neurologist who expressed the view that the respondent was at risk of developing a progressive cervical spondylosis. The judge accepted Dr Teychenne's opinion that the respondent was restricted from any form of activity which increased pressure within the intraspinal canal, which meant that he was incapacitated from any form of activity which required repetitive rotation or flexion and extension of the neck, and was restricted from any form of activity which required bending, lifting or holding the neck in a constant position. To similar effect was the opinion of Dr Selby-Brownwho concluded that the respondent had a significant ongoing disability in relation to the cervical spine and that he was permanently restricted in his capacity to perform heavy or moderately heavy lifting or handling, any amount of bending, climbing or squatting, continuous movements of the neck, and similar activities. The respondent's symptoms had been treated by physiotherapy, cervical traction, spinal manipulation, local ultrasound heat and the use of a TENS machine. None of these treatments had produced any lasting improvement. As to the lumbar spine, the judge found that this was injured in the accident and that the injury led to pain that radiated from the lower back down the legs. This was due to the motor accident injuries and to the respondent's inability to retain a normal gait when walking because of the pain in his neck. The soft tissue injury to the lumbar spine was of a lesser extent than in the cervical spine, but still held to be significant. These two aspects of the respondent's condition were not seriously in issue in the appeal. Although the appellant had called medical evidence that challenged some of these conclusions, the judge was clearly entitled to reach the views that he did on this aspect of the case. The appellant did however rely upon video tape evidence of the respondent, taken in August 1993 and January 1994. It is summarised at page 7 of the judgment. The trial judge concluded that nothing in the film gainsaid any of the appellant's evidence. Be that as it may, the video (which I have viewed) doescast light on the extent and intensity of the appellant's continuing disability. I will return to this issue later. The judgment indicates that some, but relatively minor, allowance was also made in the assessment of a global assessment for non economic loss in relation to impotence stemming from stress derived from the physiological consequences of the JOBNAME: No Job Name PAGE: 4 SESS: 1 OUTPUT: Mon Feb 25 18:25:18 2008 /reports/caseml]/case/urj/9708253 UNREPORTED JUDGMENTS (b) (p) accident; and some exacerbation of a haemorrhoid problem consequent on the use of analgesics for treatment of the pain caused by the accident. This brings me to the two remaining aspects of the injuries which were the subject of detailed attention in the appeal, being the finding that the accident caused (permanent) incontinence, and the finding that the 'compensable physiological injuries have had a direct psychological result' (emphasis in original). Incontinence In the Particulars filed pursuant to Pt 12 r 4A of the District Court Rules the respondent listed as one of his continuing disabilities: Difficulty in controlling the bladder, especially at night. At the trial the respondent said that he found that he had to get up twice during the night to go to the bathroom to pass urine. This was a problem he had not experienced before the accident. He had wet himself when unable to get to the bathroom in a hurry. In consequence of these problems he had been referred to aurologist, Dr Boulas. The problem about holding urine caused him acute embarrassment. In his report Dr Boulas recorded having taken a history that, following the accident, the respondent suffered from urinary frequency, urgency and on several occasions incontinence. Dr Boulas arranged an urodynamis study from the radiology department at Royal Prince Alfred Hospital. This was performed on 21 May 1991. The report of that examination records that at one stage in the examination: The patient was then placed in the upright position and an unstable detrusor contraction to 40cm of water ensued. Shortly after, there was a major detrusor contraction reaching 85cm of water, associated with incontinence. The patient was allowed to continue voiding and voided to completion with a voiding flow rate of 9ml per second. During voiding it was noted that the posterior urethra was bowed posteriorly, suggesting prostatic enlargement. CONCLUSION: Only a limited study has been obtained. Bladder sensation seems normal. There is evidence of postural bladder instability, leading to incontinence. There was a rather poor voiding flow rate and evidence of prostatomegaly, but the patient does void to completion, so there is presumably no major degree of bladder outlet obstruction. Referring to this report, Dr Boulas noted that: although only a limited study was obtained, the bladder sensation appeared normal, there was evidence of postural bladder instability, leading to incontinence .... He expressed the opinion that: The patient had a pre-existing condition which may have been aggravated by the accident. The pre-existing condition was that of a bladder neck stenosis secondary to prostatomegaly giving rise to detrusor instability and subsequently symptoms. The treatment of choice may be endoscopic bladder neck incision following which there is a good chance that his symptoms will resolve. URJ BALASUBRAMANIAN v SARA (Mason P) 5 This report had been provided by Dr Boulas to Sommerville & Co the solicitors for the respondent. It emerged in evidence that the report had not been shown to the respondent or his general practitioner Dr Bright. Accordingly the recommendation that the problem be treated with fairly minor surgery was not clearly drawn to the respondent's attention until he was cross-examined about the report. The respondent was confronted in cross examination with the specialist evidence suggesting that the incontinence was probably curable with a minor operation. He was asked: All right if you know now that you can have an operation to fix it would you have that operation? His response was: 'Why not'. (I will return to this significant piece of evidence in addressing the appellant's complaint about failure to mitigate.) In addition to the respondent's evidence, which I have summarised, the respondent tendered a report from his general practitioner Dr Bright dated 7 February 1994 (AB 169). The report was admitted without objection. Most of it addressed the neck and back pain suffered by the respondent. However the report also recorded that the respondent had complained to his treating doctor on several occasions of incontinence which had become more frequent and was (at date of report) 'at the stage where he is unable to control his urine which frequently comes away from him'. Dr Bright records that the respondent was referred to Dr Guirgis, an orthopaedic surgeon, who referred him to Dr Boulas. Associated with thebreakdown of communication already referred to, Dr Bright records that Dr Boulas seemed to be unable to come to any diagnosis or any helpful treatment of 'this distressing problem'. In his summary, Dr Bright expressed the opinion that the accident had given the patient a problem of incontinence which had not existed prior to the accident and which was very disabling. As well as supporting the conclusions of the orthopaedic specialists as to the respondent's inability to return to work, Dr Bright also expressed the opinion that 'At this stage it looks as though he will remain incontinent'. It emerged in Dr Bright's oral evidence that he was very familiar with the respondent's condition, having seen him over 100 times between March 1990 and February 1994. He said (in chief) that the respondent "does not exhibit any other cause for his incontinence other than the motor vehicle accident that preceded it. Dr Bright was challenged on this opinion in cross-examination. He adhered to his view that there was an incontinence problem stemming from the accident. He accepted that this was an unusual consequence of a 'minor whiplash' (emphasis added). He also accepted that the respondent was the first time that he, Dr Bright, had seen this sort of incontinence coming on after this sort of injury, and that he had never read about it in 'any recognised medical text'. When the cross-examiner pressed further and put it to him that, "So far as JOBNAME: No Job Name PAGE: 6 SESS: 1 OUTPUT: Mon Feb 25 18:25:18 2008 /reports/caseml]/case/urj/9708253 UNREPORTED JUDGMENTS you're aware this would be the first case in medical history to your knowledge?', Dr Bright responded: No, I would not have said that. This falls into a group of injuries which are associated with damage to the autonomic nervous system and to the control that one has from the spine and there are several of those."*"'At trial the appellant tendered a report from Dr Robert Smith, a consultant surgeon retained on behalf of the appellant. Dr Smith is not a urologist, and spends a fair part of his report in addressing the respondent's complaints relating to the soft tissue injuries. It is clear that Dr Smith was unimpressed with the respondent. His opinion, if it had been accepted by the trial judge, would have led to the rejection of the greater part of the respondent's claim for both economic and non economic loss. (In fact Dr Smith's conclusion that the respondent was fabricating his symptoms and their severity was rejected in fairly categorical terms by the trial judge, who preferred the evidence of the respondent's doctors.) Dr Smith also addressed the incontinence issue, and concluded that: this man is a straight forward case of prostatic obstruction requiring appropriate surgery. There is no way in which this trivial accident could have caused any loss of urinary control. It is not uncommon for people with prostatic symptoms to have urgency and occasional loss of urinary control. The claimant showed no loss of urinary control at today's examination. In addressing this issue, the trial judge held that the respondent had had no symptoms of this kind before the accident. He referred to the opinion of Dr Bright and held that it gained support from Dr Boulas" report. In doing so his Honour rejected Dr Bright's evidence given orally, for the first time and without prior notice to the appellant, that in his view there was a neurogenic cause for the incontinence. While this left Dr Bright's evidence subject to greater challenge, as it was bereft of much of its reasoning, the reason for the rejection was (as the judge noted) 'purely procedural'. Dr Bright adhered to his view as to a causal link, whatever its aetiology. The judge found that the evidence as to a causal link between the incontinence and the accident was 'compelling'. He obviously accepted Dr Bright, noting that he had been cross-examined on the issue. In accepting the doctor, despite his absence of expertise in this particular field, the judge recorded that he had formed 'an initial competent clinical impression' on the basis of many consultations with the respondent on this issue; and that he had taken responsible steps (by referring the patient to specialists) to ensure that his initial opinion was correct. Although the opinion was largely intuitive it was not, on that account, to be dismissed out of hand. Dr Bright had been a general practitioner for 23 years. In my view the judge was entitled to reach this conclusion on the evidence. Though expressed in very tentative terms, I consider that Dr Boulas" report provides some evidence of a causal link. Dr Bright's view was certainly to that effect and, despite the appellant's arguments to the contrary, I consider that the judge URJ BALASUBRAMANIAN v SARA (Mason P) 7 was entitled to accept that opinion as having probative force despite and to some extent in the light of the cross-examination of Dr Bright. The contrary view of Dr Smith did not compel the rejection of the view which the judge found established on the balance of probabilities. After all, Dr Smith's opinion on other issues relating to soft tissue injury was clearly at odds with the opinions of some of the specialists whose reports were tendered by the respondent. I conclude therefore that the challenge to the trial judge's finding that the accident had caused incontinence has not been made good. The appellant next argued that the respondent had failed to mitigate his loss in relation to this medical condition. Alternatively, it was submitted that damages should be assessed on the basis that it would be reasonable for the appellant to undergo the surgery proposed by Dr Boulas. Section 39 of the Motor Accidents Act 1988 mirrors the common law requirement that a plaintiff is bound to take all reasonable steps to mitigate loss. However the onus of proving mitigation is reversed by the statute and now lies with the plaintiff: s 39(2). The failure or otherwise to take all reasonable steps to mitigate the loss is to be taken into account in the assessment of damages: s 39(1). See generally Brogan v McGeary (1995) Aust Torts R 81-342. On the basis of the report by Dr Boulas to which reference has already been made, it was argued by the appellant that the incontinence could have been remedied by a surgical procedure, and that the respondent had not taken reasonable steps to undergo this operation. On this issue, the trial judge concluded that 'the prospects of success of an operation are unsure, and with Dr Bright not in favour of it, the plaintiff is unlikely to have it, and that would be reasonable of him. His incontinence will continue indefinitely, compensably.' I do not think that this finding can stand. As to the past, the trial judge found that the respondent had not acted unreasonably in the light of the respondent's evidence that Dr Boulas had not suggested an operation to him. This finding turns on a credibility assessment which I cannotdisplace. I have already indicated that the written evidence to this effect from Dr Boulas was in a report sent to the respondent's solicitors, not his general practitioner. The appellant contends that it is not his fault that the information was not conveyed to the respondent before trial. However, I would not label as unreasonable the failure to undergo a procedure recommended by a specialist unless and until that recommendation has been communicated effectively to the patient concerned. The cause of the absence of communication is irrelevant. But this breakdown of doctor-patient communication does not carry over into the future. The issues raised by s 39 qua continuing loss need to be addressed on the basis that Dr Boulas" views became known by the respondent and his general practitioner by the date of the trial. JOBNAME: No Job Name PAGE: 8 SESS: 1 OUTPUT: Mon Feb 25 18:25:18 2008 /reports/caseml]/case/urj/9708253 UNREPORTED JUDGMENTS (c) (k) I have already referred to the respondent's concession in cross-examination, when confronted with the misplaced report of Dr Boulas. It is also relevant that Dr Boulas" report had not, on the evidence, been shown to Dr Bright. The latter's comment in a report dated 7 February 1994 that 'Dr Boulos [sic] seems unable to come to any diagnosis or any helpful treatment' must be read against this background. So too must the advice given by the general practitioner to his patient that led the patient to his gloomy belief that the incontinence problem was permanent. Since Dr Boulas was a specialist urologist his view should (in the absence of contradictory specialist evidence on the topic) prevail as to the likely outcome of the suggested procedure. This was that 'there is a good chance that[the appellant's] symptoms will resolve'. Dr Robert Smith was also of the view that the problem was curable. In the light of this evidence, the damages should have been assessed on the basis that the incontinence problem would probably have been cured shortly after the trial (in March 1996) unless the respondent unreasonably failed to take steps to mitigate his loss in this regard. The possibility that the procedure might not be successful should be recognised, but only as a fairly remote chance. On this basis, the trial judge erred in treating incontinence and its psychological sequelae as an inevitable part of the respondent's permanent condition. Psychological damage As previously noted, the second major attack upon the specific findings of fact that went into the assessment of a 30% proportion was the conclusion that the respondent was suffering genuine accident-caused injuries 'with a substantial subjective overlay'. In similar vein the judge held that the appellant was responsible for 'the plaintiff's physical and psychological deterioration which have followed the accident'. There were other references to 'psychological damage'. In a flourish that replicated the concluding words of Dr Bright's hyperbolic written opinion, the judge concluded his summary of this issue by stating that he accepted Dr Bright's opinion that the respondent 'remains a physical and emotional cripple for the rest of his life'. The appellant's complaints on this issue of psychological injury contend that (a) the matter was not open on the Particulars filed before trial; (b) the judge failed to provide the appellant with an opportunity to make submissions in relation to this finding; (c) there was no evidence to support the finding; and (d) the finding was not justified in the light of the total evidentiary material. I think there is no merit in the appellant's claim that the issue was not open on the Particulars. One of the continuing disabilities alleged in the Particulars was: Frustration and irritability caused by post-injury disabilities. In the end, counsel for the appellant did not press the complaint of denial of procedural fairness which had been faintly adumbrated in the Notice of Appeal and counsel's opening submissions. I respectfully agree with this concession. After all, JOBNAME: No Job Name PAGE: 9 SESS: 1 OUTPUT: Mon Feb 25 18:25:18 2008 /reports/caseml]/case/urj/9708253 URJ BALASUBRAMANIAN v SARA (Mason P) 9 the issue had been opened in the Particulars and in Dr Bright's written report which went into evidence without objection. Before addressing the remaining two complaints relating to this particular issue I should set out the relevant part of the judgment: The compensable physiological injuries have had a direct psychological result. Dr Bright says that the plaintiff has really not coped well. That is, his personality, with which the defendant finds him is one which has not been equal to resisting the stresses imposed by the defendant. The injuries have removed the major elements which supported his self esteem. He was accustomed to going to work, to earn money to support his children. He has lost the dignity of being continent. Because of his inability to earn, his income has been reduced. Prior to the accident he had a good job and was paying off a home unit. Since the accident he has difficulty in meeting the payments and has been obliged to extend his mortgage. Dr Bright believes that the plaintiff also feels a loss of self worth in that he could not performsexually with his wife. I have already dealt with in so far as it is not completely compensable, but only partially. Dr Bright does not give any diagnosis of psychiatric illness, but does use what he calls the 'technical term' of depression. He feels that the prognosis is extremely poor because of pressures both financial and legal. I observe that when the legal proceedings are at long last concluded, that will remove not only their own stress, but also result in financial compensation to the plaintiff. However, as Dr Bright goes on to say, the plaintiff will permanently have his incontinence and his neck will continue to get worse. It is clear that there is another permanent contributor to the plaintiff's 'depression' — the interference with the enjoyment of life which his physical disabilities produce. It is necessary for Dr Bright to continue to see the plaintiff at intervals varying at between a week and a month, but usually monthly to monitor and treat him. This is both an indicator of the severity of his injury, and an element which calls for compensation by way of allowance for medical fees. I deal with this below. quot;remains a physical and emotional cripple for the rest of his life. Dr Bright's position as a general practitioner who was very familiar with the respondent and his post-accident condition has already been referred to. Dr Bright did not claim to have specialist qualifications in psychiatric medicine. Nevertheless I see no reason why this would disqualify him, or any other credible observer of respondent's condition, giving evidence of the respondent's distress and depression (at least in lay terms) consequent upon the injury and the changes that it brought to his life. One would have thought that such a response would be natural from all, even the most stoical of victims. I do not read the passage just quoted as indicating that the judge regarded Dr Bright as having expressed a view as to a psychiatric illness. Nor do I read the judge as finding to that effect either. For these reasons I would reject the appellant's submission that there was no evidentiary basis upon which to make the findings set out in the passage. Nevertheless there is more weight in the appellant's submission that his Honour has given to those findings a false and hyperbolic label in describing them as indicative of 'substantial objective JOBNAME: No Job Name PAGE: 10 SESS: 1 OUTPUT: Mon Feb 25 18:25:18 2008 /reports/caseml]/case/urj/9708253 UNREPORTED JUDGMENTS overlay,' "psychological deterioration' (emphasis added) and as rendering the respondent an "emotional cripple for the rest of his life'. In the first place, the raw data does not go that far, at least on the psychological front. And secondly, the statement that 'the plaintiff will permanently have his incontinence' cannot be sustained, for reasons I have sought to demonstrate. (d) Assessment of 30% impairment The judge prefaced his detailed findings with the following global summary: My comparison of the content of his evidence, the demeanour of the plaintiff, and the other evidence both lay and medical, leads me to the conclusion that the plaintiff is suffering genuine accident-caused injuries, with a substantial subjective overlay. The overlay is itself in large measure a consequence of the accident as his injuries have caused an expanding fabric of interwoven and reciprocating features both organic and psychological. The plaintiff's age, personality and the circumstances of life in which the defendant found him have had compound effect with the frank injuries of the motor vehicle accident. In this case, the defendant is responsible for the plaintiff's physical and psychological deterioration which have followed the accident. One must be careful to dissect the actual and compensable deterioration from the exaggeration with which the plaintiff occasionally described them. The correct approach to s 79, and to appellate review of the determination of trial judges under that section, is discussed in Southgate v Waterford (1990) 21 NSWLR 427. The task involves a difficult exercise of judgment, and appropriate appellate restraint. In my view this is a proper case for this court to redetermine the assessment. The matter must be addressed afresh, if only because of the setting aside of the trial judge's findings about the permanence of the incontinence problem and its psychological sequelae. I would also take into account (a) my conclusion that the trial judge gave excessive weight to the raw data as to psychological injury; and (b) my own assessment of the extent of the respondent's continuing impairment due to his injuries as revealed in the video tape which I have viewed. The viewing confirms the trial judge's description in the following terms (AB 246): The tapes showed the plaintiff performing some type of activity in a garage, involving bending over, with a motion equivalent of brushing at knee level, squatting, painting at shoulder level, holding an object such as a paint tin, dangling from his left arm, walking with an object in his left hand with his right arm swinging, working at ground level in a squatting position and bending over fully to perform a task at ground level. At one point he started to close a garage Tilt-a-door, using both hands above his head normally at full stretch, apparently changing his mind and letting go of the door after about two seconds. On another occasion he opened the Tilt-a-door with his right hand, concluding the operation by pushing the door up to its full extent with his left hand. He was seen carrying a number of shopping bags in both hands and placing them in a motor car. There were quite a few activities of which the above is a summary. They were all done at a leisurely pace, punctuated often by immobile contemplation. Taking all these matters into consideration (as well as the respondent's age) I would assess the s 79 proportion at 20%. URJ BALASUBRAMANIAN v SARA (Mason P) 11 PAST AND FUTURE LOSS OF EARNING CAPACITY Moore DCJ awarded the respondent $169,150 made up as follows: (i) Past loss from 21 March 1990 to 12 December 1996, 350 weeks $136,500.00 (ii) Future loss to 1 January 1999 2 years 3 weeks Multiplier appox 100x$390.00 $39,00.00 Less 15% ($5850.00) $ 33,150.00 $169,650.00 Deduct Paid by John Sara for work done $ 500.00 $169,150.00 The multiplier of $390.00 per week was based upon the respondent's average earnings from his occupation as a tiler in the 38 weeks between | July 1989 and 21 March 1990. This was the period immediately preceding the accident. I do not understand the appellant to be pressing the ground of appeal which challenges this aspect of the calculation. If I am wrong, I would record that I think that the challenge should be rejected in the light of the evidence to which I have referred. Two challenges were raised by the appellant. It was submitted that (a) damages should not have been assessed on the basis that the respondent had been rendered totally unemployable; and (b) the judge erred in concluding that the respondent's earnings would have been undiminished until he was 72 had it not been for the accident. The trial judge concluded that the injury rendered the respondent effectively unemployable. This was disputed by the appellant, who contended that the judge should have found a more limited incapacity, say in the range of 25%-30%. In the Court of Appeal, the appellant accepted that the finding that the injury rendered the respondent incapable of returning to his occupation of 40 years was beyond appellate challenge. This concession was properly made. However, it was submitted that the respondent could have found alternative remunerated employment. In my view this is fanciful in the light of the nature and extent of his continuing injuries, his age, and the state of the labour market at the relevant times. In so concluding, I have not overlooked the video tape evidence. I would not disturb the finding of total loss of earning capacity. The critical issue on the question of past and future economic loss was the correctness of the trial judge's conclusion that, had the respondent not been injured, he would have continued to work at the same level of energy and remunerative employment as he demonstrated prior to the accident up until the age of 72. He was 63 when the accident occurred and 69 at trial. The conventional approach to such matters is to assume that a male in employment will continue to work until age 65, when he would take up the age pension. This reflects the common experience of working Australian men, the attitude of employers generally (at least in the era before discrimination on account of age in matters of employment was proscribed), and assumes that the person in question has no source of income other than that from personal exertion which would undercut his ability to earn the full age pension. 12 UNREPORTED JUDGMENTS However there is no fixed rule. In a particular case there may be a basis for finding that early retirement was likely or that the plaintiff might have continued to workbeyond the ordinarily accepted age of retirement. As McHugh J put it in Medlin v State Government Insurance Commission (1995) 182 CLR | at 24: There is no reason why the plaintiff's impairment of earning capacity should be treated as ceasing at the age sixty-five. However, the financial loss which flows from that impairment in respect of the period beyond age sixty-five is of a different measure from the loss for the period up to age sixty-five. It will be necessary to look at all the circumstances, including the intentions of the plaintiff, to determine what, if any, post-retirement remunerative activities the plaintiff would probably have engaged in if the accident had not occurred and for how long he would have continued engaging in those activities. Once that has been done, the court must determine the extent to which the plaintiff's capacity to engage in these activities has been impaired and the loss which flows therefrom. The respondent accepted before us that he effectively bore the evidentiary and persuasive onus to displace the conventional approach. Nevertheless it was contended that the trial judge's findings on this issue were sustainable and should not be displaced. At trial the respondent had sworn that, were it not for the accident he would have worked 'till I drop dead .... If I am not able to work I retire by God's force' (AB 24). The trial judge held that the respondent would probably have continued to work as a tiler until age 72, regarding this as "a reasonable, in fact, modest claim'. He had found that the respondent had been a very reliable and energetic worker who was not slowing down even at age 62. His pre-accident position was assessed in the following terms (AB 242): The plaintiff had worked hard all his life, in the building industry. He had been a wall and floor tiler for years at the time of the accident. He has two daughters, born in 1981 and 1983. He separated from their mother, who had custody of them, with regular access to the plaintiff. In 1990 the plaintiff remarried. The marriage was to end soon after the accident. In 1991, themother of the plaintiff's children, who has a drug problem, asked the plaintiff to take over custody of the children. He did this with great alacrity. His two daughters continue to live with him, he being their sole carer and devoted to them. Because of their youth, he intended to keep working as long as he lived, to provide for them. This was one part of his evidence about which he was genuinely adamant. It was necessary for him to take out additional mortgage finance, to provide proper accommodation for his daughters and he will have a long and continuing obligation to repay the mortgage, as well as to provide generally for his daughters. Out of work since the motor accident, the plaintiff has continued to care for his daughters without reservation, although that has meant extending his mortgage commitment, at considerable disadvantage to himself. The critical finding was expressed in the following terms (AB 250): The occupation in which the plaintiff used to work is one where jobs are gained by word of mouth and, in his case, also through his brother's network. Although the work requires such effort that younger men usually do it, such was the plaintiff's energy and reputation that he was likely to keep getting the same volume of work as long as he sought it until quite well into his seventies. He had appropriate sources of care for his daughters while he was at work. He had a degenerated spine radiologically, but that, unproductive of symptoms, was unknown to him. His spine was likely in any event to cause a slowing of his work capacity, but not his enthusiasm, from, say, his mid-seventies. Mr Doherty has submitted that a convenient way of assessing the economic loss which flows from that is to take an age milestone, calculate on the basis URJ BALASUBRAMANIAN v SARA (Priestley JA) 13 of full earnings tell then, and thereafter make no allowance. The furthest of the milestones which he submitted was 72. That seems a reasonable, in fact modest, claim and I allow it. Counsel for the respondent pointed to the following matters: (a) (b) (c) _ The respondent was the sole parent of two daughters who were aged 8 and 6 at the date of the accident, and were still only 15 and 13 at the date of trial: and At the time of the accident the respondent had recently renegotiated two ('interest only') mortgages over the home unit in which he andhis daughters lived. One mortgage was for $10,000 and the other for $21,000; The respondent was a man of remarkable energy and dedication, doubtless focused upon the need to make provision for his infant daughters. Prior to the accident he was working 7 days per week if work was available. Nevertheless, a firm intention is not the only element in the equation. There has also to be capacity and opportunity. The evidence established that the tiling work which the respondent was performing prior to his injury was extremely strenuous. In more recent years he has required help in carrying sand and cement. This heavy occupation must have borne with increasing weight upon the shoulders of an aging man, particularly after he passed the magic age of 65 when the prospect of an age pension would have offered a significant although incomplete incentive to cease his labours. It is also relevant that the respondent had a degenerative underlying condition in the neck and lower back before his accident. I have considered anxiously whether the trial judge had an advantage which I lack in forming the view that the respondent would have on the probabilities worked until aged 72. With some hesitation I think that the judge did not give sufficient weight to the objective factors that made it probable that the respondent would not have continued up to age 72 working flat out as a tiler. I consider that 68 is the more probable age. This age is chosen, recognising that there would likely have been some tapering off before then and some continued work after then. In other words, I would adopt the convenient way of assessing damages that was advanced below by Mr Doherty,counsel for the plaintiff at trial which is referred to in the passage from the judgment I have just quoted. Recalculating damages on this basis means that the appeal is successful and that damages should be recalculated by the Court of Appeal. The appellant should have his costs, with the respondent having a certificate under the Suitors Fund Act. I propose the following orders: . Appeal allowed. Parties directed to bring in Short Minutes to give effect to the basis for the calculation of damages determined by the Court of Appeal. The respondent to pay the appellant's costs of the appeal but to have a certificate under the Suitor's Fund Act if qualified. Priestley JA. I agree with Mason P's reasons and conclusions. 1. Appeal allowed. 14 UNREPORTED JUDGMENTS 2. Parties directed to bring in Short Minutes to give effect to the basis for the calculation of damages determined by the Court of Appeal. 3. The respondent to pay the appellant's costs of the appeal but to have a certificate under the Suitor's Fund Act if qualified. Counsel for the appellant: C CALLOWAY QC with S FONTI Solicitors for the appellant: CKB PARTNERS Counsel for the respondent: B MURRAY QC with S HUGHES 10 Solicitors for the respondent: SOMMERVILLE and CO